^t^^  ^^i/t^tt 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


CASES 


LAW  OF  AGENCY 


SELECTED  AND  ARRANGED 


GEORGE  L.  REINHARD,  LL.  D. 

Late  Dean  of  Law  Faculty,  Indiana  University 


INDIANAPOLIS 

THE  BOBBS-MERRILL  COMPANY 

PUBLISHERS 


Copyright  igii 
By  the  BOBBS-MERRILL  COMPANY 

r 

1911 


PUBLISHER'S  NOTE 

These  cases  were  selected  and  prepared  in  part  for  publication  by 
Judge  Reinhard  with  especial  view  for  use  in  his  classes  in  the  In- 
diana University  Law  School. 

Before  the  editorial  work  was  completed  Judge  Reinhard's  death 
occurred,  and  the  task  of  completing  the  manuscript  and  its  final  re- 
vision for  the  printer  devolved  upon  others.  The  publishers,  in  ac- 
cepting this  responsibility,  have  endeavored  to  carry  out  the  intent  of 
the  editor  that  the  selection  should  be  representative  and  well 
adapted  for  students'  use. 

For  the  two  years  past  the  cases  have  been  carefully  and  critically 
gone  over,  annotated,  and  tested  by  class-room  use. 

This  selection  is  now  presented  as  a  memorial  to  the  late  Dearr 
Reinhard,  whose  high  qualifications  as  a  jurist,  administrator,  author 
and  teacher  were  so  generally  recognized  during  his  lifetime. 


Ill 


i^in.'^.i 


TABLE  OF  CONTENTS 


CHAPTER  I. 


NATURE  AND   KIND    OF  AGENCY. 

PAGE. 

Definition    of    agent 1 

Distinction    between    agent    and    servant 5 

Special,    general    and    universal    agents 11 


CHAPTER  n. 

COMPETENCY    OF    PARTIES. 

Who   can   be    principal 15 

Who  can  be  agent ■^^ 

CHAPTER  HI. 

SUBJECT-MATTER   OF    AGENCY. 

What  acts  can  be  done  by  an  agent 53 

Contract  of  appointment  for  illegal  purpose 61 

CHAPTER  IV. 

CREATION    OF   AGENCY. 

Authority  to  execute  sealed   instruments 75 

Express    authority 88 

Implied  authority "5 

Acceptance  by  agent 1^1 

Estoppel    102 

V 


VI  TABLE    OF    CONTENTS. 

CHAPTER  V. 

EXTENT,   CONSTRUCTION   AND  EXECUTION  OF  AUTHORITY. 

PAGE. 

Special,  general  and  universal  agents 107 

Rules  of  construction 1 14 

Execution   of  authority 124 

(a)  Sealed  instruments 124 

(b)  Negotiable   instruments 136 

(c)  Simple    contracts 157 

CHAPTER  VI. 

DELEGATION   OF   AUTHORITY. 

What  authority  cannot  be  delegated 164 

What  authority  can  be  delegated 172 

Power  to  delegate  implied  from  circumstances 175 

CHAPTER  VII. 

LIABILITY   OF   PRINCIPAL   TO   THIRD   PERSONS. 

Contracts    181 

Torts    235 

(a)  Fraud   and   deceit 235 

(b)  Personal    injury 258 

Notice  to  and  knowledge  of  agent 293 

Declarations  and  admissions  of  agent 317 

CHAPTER  VIII. 

RATIFICATION. 

What  acts  can  be  ratified 323 

Requisites  of  ratification 340 

Effects  of  ratification Z66 

CHAPTER  IX. 

LIABILITY   OF   AGENT   TO  THIRD   PARTY. 

Contracts    383 

(a)  Authorized  contracts  for  disclosed  principal 383 

(b)  Unauthorized  contracts 392 

Torts 415 


TABLE    OF    CONTENTS.  vii 

CHAPTER  X. 

UNDISCLOSED   PRINCIPAL. 

PAGE. 

Liability  of  third  party  to  principal 438 

Liability  of  principal  to  third  party 462 

Liability  of  third  party  to  agent 493 

Liability  of  agent  to  third  party 511 

CHAPTER  XL 

DUTIES   AND   LIABILITIES    OF    PRINCIPAL   TO   AGENT. 

Duty  to  compensate  agent 526 

(a)  In  general 526 

(b)  When    agency    is    terminated    before    expiration    of    specified 

term  535 

Duty  to  reimburse  agent 558 

Employer's   liability 563 

(a)  Fellow-servant    rule 563 

(b)  Vice-principal  and  superior  servant  doctrines 615 

(c)  Duty  of  the  employer  to  provide  safe  premises  and   suitable 

appliances,  also  assumption  of  risk  by  employe 633 

CHAPTER  Xn. 

DUTIES    AND  LIABILITIES   OF   AGENT  TO   PRINCIPAL. 

Agent's  duty  to  obey  instructions 673 

Agent's  duty  to  observe  good  faith 688 

Agent's  duty  to  use  care  and  skill 710 

Agent's  duty  to  account 723 

Duty  of  gratuitous  agent 728 

CHAPTER  XHL 

TERMIN.\TI0N    OF    AGENCY. 

By  the  terms  of  the  agreement 739 

By  revocation  of  authority 744 

By  operation  of  law 760 

Irrevocable  agencies 770 


TABLE  OF  CASES 


Ahern  v.   Baker 
Amans  v.   Campbell 
Anderton  v.  Shoup 
Appleton   Bank  v.   McGilvray 
Argersinger  v.  MacNaughton 
Atwood  V.  Munnings 


B 


Bagley  v.  Findlay 

Baird  v.   Pettit 

Baker  v.  Kansas  City  &c.  R.  Co. 

Baldwin  v.  Bank 

Baldwin  Bros.  v.  Potter 

Bank  v.  New  York  &c.  R.   Co. 

Barrell  v.  Newby 

Bartlett  v.  Raymond 

Baulec  v.  New  York  &c.  R.  Co. 

Baxter  v.  Sherman 

Beardslee  v.   Richardson 

Birkett  v.  Postal  Tel.  Co. 

Birmingham  Banking  Co.,  ex  parte 

Book  V.  Jones 

Bradstreet  v.  Baker 

Briggs  V.  Partridge 

Brooks  V.  Shaw 

Brookshire  v.  Brookshire 

Brown  v.  Parker 

Brown  Paper  Co.  v.  Dean 

Bryan  v.  Jackson 

Buckland  v.  Conway 

Burns  v.  Lynde 


Carriger  v.   Whittinglon 
Carter  v.  Southern  R.  Co. 


{References  are  to  Pages.^ 

750    Cassidy  v.  McKenzie 


519 
136 
175 
513 
114 


99 

594 
216 
444 
723 
255 
490 
511 
608 
457 
732 
235 

53 
517 
124 
462 
476 
749 
467 
420 

97 
177 

75 


764 
494 


761 

Chezum  v.  Kreighbaum  91 
Citizens'  Loan  &c.  Assn.  v.  Fried- 
ley  721 
Clippinger  v.  Hepbaugh  61 
Cobb  V.  Knapp  522 
Cochell  V.  Reynolds  166 
Colburn  v.  Phillips  499 

V.  Woodworth  537 

Collen  V.  Wright  407 

Combs  V.  Scott  345 

Commercial  Bank  v.  Norton  173 

V.  Warren  366 

Conkey  v.  Bond  689 

Copeland  v.  Mercantile  Ins.  Co.  751 

Costigan  v.  Mohawk  &c.  R.  Co.  539 

Cox  V.  Haun  60 

Craighead  v.  Peterson  122 

Croft  V.  Alison  263 

Crow  V.  Carter  56 

Crowder  v.  Reed  347 

Croy  V.  Busenbark  85 

D 

Dana  v.  Blackburn  577 

Daniels  v.  Union  Pacific  R.  Co.  572 

Davis  V.  Windsor  Sav.  Bank  760 

V.  Lane  766 

Dawson  v.  Cotton  127 

Daylight  Burner  Co.  v.  Odlin  224 

Dean  v.  Brock  423 

Dempsey  v.  Chambers  ^37 

Dexter  v.  Hall  27 

Diefenback  v.  Stark  545 

Dobbin  v.  Richmond  &c.  R.  Co  620 

Dodge  V.  Hopkins  376 


IX 


TABLE   OF    CASES. 


{References  are  to  Pages.] 


Dorchester  Bank  v.  New  England 

Bank  178 

Dusenbury  v.  Ellis  393 

Dwyer  v.  American  Exp.  Co.  630 


Early  V.  Wilkinson  139 

Eaton  V.  European  &c.  R.  Co.  285 

Eberts  v.  Selover  364 

Elkhart  County  Lodge  v.  Cray  56 

Elkins  V.  Boston  &c.  R.  Co.  452 

Evrit  V.  Bancroft  503 


Fairfield  Sav.  Bank  v.  Chase  300 

Fairley  v.  Hastings  317 

Farwell  v.  Boston  &c.  R.  Corp.      563 
Fellows  V.   Hartford  &c.    Steam- 
boat Co.  757 
Feltus  V.  Swan                                   421 
Fifield  V.  Northern  Railroad           633 
First  Nat.  Bank  v.  Christopher      307 
V.  Fourth    Nat.    Bank                  710 
V.  Free  101 
V.  Graham                                      526 
Follette  V.  Mutual  Accident  Assn.  293 


Fonda  v.  Van  Home 

Ford  V.  Williams 

Forrest  v.  McCarthy 

Freese  v.  Crary 

Friedlander  v.  Te.xas  &c.  R.  Co. 


Gardner  v.  Allen 
Garretzen  v.  Ducnckel 
Gilbert  v.  How 

Newbrand 
Metcalf 
V.   Daily 
Horton 


Golden  v. 
Gouldy  V. 
Governor 
Graves  v. 
Grocnburg  v.  Palmieri 


15 
449 
521 
399 

248 


455 
269 
120 
284 
118 
41 
95 
489 


Grecnleaf  v.  Moody 
Gregory  v.   Piper 
Gulick  V.  Grover 
Gundlach  v.  Fischer 


H 


681 
258 
109 
739 


Haas  v.  Damon 

726 

Hale  v.  Woods 

130 

Hall  v.  Harper 

359 

Hammond  v.  Hussey 

728 

Hardin  v.  Alexandria  Ins. 

Co. 

103 

Harper  v.  Indianapolis  &c. 

R.  Co 

596 

Harralson  v.  Stein 

169 

Hartley  &  Minor's  Appeal 

775 

Haskell  v.  Starbird 

237 

Hatzfield  v.  Gulden 

71 

Hawkins  v.  McGroarty 

343 

Hayden  v.  Alton  Nat.  Bank 

508 

Hazeltine  v.  Miller 

187 

Hegenmyer  v.  Marks 

688 

Heinemann  v.  Heard 

716 

Henry  v.  Heeb 

332 

Higgins  V.  Senior 

160 

Hinds  V.  Henry 

527 

Hitchcock  V.   Buchanan 

148 

Hoffman  v.  New  York  &c. 

R.  Co. 

275 

Holden  v.  Rutland  R.  Co. 

506 

Holmes  v.  Grover 

109 

Holt  V.  Green 

50 

Houseman    v.    Girard    &c. 

Loan 

Assn. 

299 

Hunt  V.  Crane 

535 

V.  Rousmanier 

770 

Huntington  v.  Knox 

450 

Hyatt  V.  Clark 

354 

Indianapolis  &c.  R.  Co.  v.  Watson  653 
Indianapolis    &c.    Transit    Co.    v. 

Foreman  582 

Isham  V.  Post  730 

Island  Coal  Co.  v.  Greenwood  645 


TABLE   OF    CASES. 


XI 


{References  are  to  Pages.] 


Jenkins  v.  Flinn 

Jenkins   Bros.   Shoe   Co.  v.   Ren- 
frew &  Co. 
Jenne  v.  Sutton 
Joel  V.  Morison 

Johnson  v.  New  York  &c.  R.  Co. 
Jones  V.  Woods 

K 

Kansas  Pac.  R.  Co.  v.  Salmon 

Kaye  v.  Brett 

Kayton  v.  Barnett 

Kelly  V.  Thuey 

Kennedy  v.  McKay 

Kenton  Ins.  Co.  v.  McClellan 

Killingsworth   v.    Portland   Trust 

Co. 
Kingan  v.  Silvers 
Kitchen  v.  Cape  Girardeau  &c.  R. 

Co. 
Knapp  V.  Alvord 
Knox  V.  Pioneer  Coal  Co. 
Kolb  V.  J.  E.  Bennett  Land  Co. 
Kornemann  v.  Monaghan 
Kroeger  v.   Pitcairn 


Laverty  v.  Snethen 

Law  V.  Stokes 

LeRoy  v.  Beard 

Lewis  V.  Atlas  Mut.  &c.  Ins.  Co. 

Lister  v.  Allen 

Lloyd  V.  Hanes 

London  &c.   Bank,  In  re 

Lord  V.  Hall 

Loudon    Sav.    Fund   Soc.   v.    Ha- 

gerstown  Sav.  Bank 
Lough  V.  John  Davis 
Lucas  V.  Bank 
Lumley  v.  Corbctt 


44 

304 
418 
262 

675 
531 


590 
202 
469 
471 
241 
22 

46 

5 

34 
776 
644 
746 
206 
401 


677 
221 
183 
755 
231 
650 
53 
185 

107 

428 

38 

461 


Lynn  v.  Burgoyne 
Lyon  V.  Kent 


164 
39 


M 

McDowell    V.     Homer    Ramsdell 

Transp.  Co.  265 
McEntyre  v.  Levi  Cotton  Mills  322 
McKinnon  v.  Vollmar  172 
McNevins  v.  Lowe  736 
Maitland  v.  Martin  561 
Manufacturing  Co.  v.  Morrissey  665 
Maple  V.  Railroad  Co.  487 
r^Iatteson  v.  Rice  243 
Maury  v.  Ranger  388 
Merchants'  Nat.  Bank  v.  Lovitt  310 
Minnesota  &c.  Oil  Co.  v.  Mon- 
tague 685 
Mitchell  V.  Hazen  129 
Moore  v.  Appleton  558 
V.  Stone  741 
V.  Wabash  &c.  R.  Co.  615 
Mott  V.  Smith  21 

N 

National  Life  Ins.  Co.  v.  Allen  442 

V.  Minch  313 

Negley  v.  Lindsay  ^23 

Newport  v.  Smith  415 

Norris  v.  Tayloe  695 

Noyes  v.  Loring  396 

O 

Oakland  City  &c.  Industrial  Soc. 

V.  Bingham  279 
O'Brien    v.    American    Dredging 

Co.  624 

Offutt  V.  Ayres  158 

Ogden  V.  Raymond  383 


Pacific  Guano  Co.  v.  Hooleman      441 
Patterson  v.  Lippincott  412 


TABLE   OF   CASES. 


{References  a 

Peabody  v.  Hoard  88 
Pennsylvania  &c.  R.  Co.  v.  Leslie    639 

V.  Mason  639 

Phillips  V.  Howell  744 

Pickering  v.  Busk  229 

Pole  V.  Leask  102 

Porter  v.  Haley  23 

Pratt  V.  Beaupre  161 

President  &c.   Appleton  Bank   v. 

McGilvray  175 

R 

Rechtscherd     v.     Accommodation 

Bank  673 

Reynolds  v.  Dothard  370 

Rice  V.  Wood  57 

Rochester  v.  Levering  698 

Ross  V.  Houston  296 

S 

Schaefer  v.  Henkel  438 

Scribner  v.  Collar  707 

Searle  v.  Parke  260 

Second    Nat.    Bank    v.  Midland 

Steel  Co.  149 
Seymour  Woolen  Factory  Co.  v. 

Brodhecker  169 

Sheffield  v.  Ladue  378 

Shisler  v.  Vandike  328 

Shoninger  v.  Peabody  349 

Sutton  V.  Tatham  181 

Stainback  v.  Read  207 
Star    Line   of    Steamers    v.    Van 

Vliet  190 

State  v.  Hubbard  1 

Stephenson  v.  Duncan  669 

Sterling  v.  Smith  70S 

Stetson  V.  Patten  342 

Stewart  v.  Pickering  90 

Swim  V.  Wilson  415 


Talbot  V.  Bowen  42 

Taymouth  v.  Koehler  324 

Terre   Haute  &c.   R.   Co.   v.  Mc- 

Murray  192 


re  to  Pages  A 


Texas  &c.  R.  Co.  v.  Johnson 

604 

Thomas  v.  Atkinson 

477 

V.  Dabblemont 

720 

Thompson  v.  Chouteau 

157 

Thurber  v.  Anderson 

227 

Timberlake  v.  Thayer 

543 

Timken  v.  Tallmadge 

394 

Towle  V.  Leavitt 

213 

Trueblood  v.  Trueblood 

340 

U 

Union  Pacific  R.  Co.  v.  Erickson 

574 

United  States  v.  Grossmayer 

36 

V 

Valtez  V.  Ohio  &c.  R.  Co. 

570 

Van  Antwerp  v.  Linton 

426 

Varnum  v.  Martin 

719 

Vickery  v.  Lanier 

734 

Vicksburg    &     Meridian     Co.    v 

O'Brien 

319 

Vinton  v.  Baldwin 

534 

Von  Hurter  v.  Spengeman  692 

W 

Wallace  v.  Lawyer  358 

Walter  v.  James  375 

Watteau  v.  Fenwick  474 

Weaver  v.  Ogletree  361 

Wellington  v.  Jackson  336 

Wells  V.  Collins  686 

White  V.  Skinner  392 

Whitney  v.  Dutch  18 

Williams  v.  Butler  371 

v.  McKay  737 

Wisconsin  v.  Torinus  326 

Wolfe  V.  Howes  553 

Wood  V.  Goodridge  132 

V.  McCain  11 

Worrall  v.  Munn  81 

Worthington  v.  Cowles  387 

Wortman  v.   Price  25 


Yeomans  v.  Contra  Costa  &c.  Co.    586 
Yerrineton  v.   Greene  550 


CASES  ON  AGENCY 


Section  1. — Definition  of  Agent. 


-TATE  V.  HUBBARD. 

>   Kan.   797. 

;i(_ii!.  ui>;'i'  I-  L'juii,  oiLi'.-. 'ICC  vjl::j!_^.    The  defendau'   ,%u:> 
-  embezzlement.    From  an  order  overruling  the  motion  to 

;als. 

:  3) — ^The  principal  question  pre- 
icr  a  receiver  who  unlawfully  appro- 

his  hands  as  receiver,  or  friils  it.  px- 

ver  the  same  on  demand,  is  subject  to  n 

aru,  i^.MM.  1,    V  -    •-'■■■■—-'     "^he  defendant  "'■  ''' 

upon  the  tl^'cn  ■  under  that 

-:•-:;;':    j:.  :  ■  1889  V "  .v^t::.:    -If 

li  -■  '>"'r  to  '■:  ^'er  or  em- 

>ine  into  ment,  o' 

■  --'    after  -  ■  ' ■  - 

■IS  for   ,  ■'}■ 

■  nij.l-:c  delivery 
•  r  or  pinnloy^r? 


aey  or  other  property  to  his  c 
.Mi  "agent,"  within  the  -mea"'- 
rntion  of  the  defendant  is  th; 

between  a 
for  whom 


Johns&n  604 

477 
720 

157 

227 

,r  543 

394 

ia  213 

I  rut-blood  .340 

U 
iv    Co.  V.  Erickson    574 


&c.  R. 

Co. 

570 

'    'ti 

^•r! 

426 
719 

Lar.jci 

734 

&    Merid: 

ian 

319 

Raliiwin 

534 

Spengeman 

692 

358 

375 

474 

361 

.'  ackson 

336 
6S6 
392 

.vuti  ll 

18 

.  Butler 

371 
737 
326 
553 
132 
H 
81 
.387 

&c.  Co. 

586 
550 

CASES  ON  AGENCY 


CHAPTER  I. 

NATURE  AND  KINDS  OF  AGENCY. 

Section  1. — Definition  of  Agent. 


STATE  V.  HUBBARD. 
1897.     Supreme   Court  of   Kansas.     58  Kan.   797. 

Appeal  from  district  court,  Shawnee  county.  The  defendant  was 
indicted  for  embezzlement.  From  an  order  overruHng  the  motion  to 
quash  the  indictment,  defendant  appeals. 

Johnson,  J.  (after  stating  the  facts) — The  principal  question  pre- 
sented for  determination  is  whether  a  receiver  who  unlawfully  appro- 
priates money  which  comes  into  his  hands  as  receiver,  or  fails  to  ac- 
count for  and  pay  over  the  same  on  demand,  is  subject  to  prosecution 
and  punishment  as  for  embezzlement.  The  defendant  was  prosecuted 
upon  the  theory  that  he  was  an  agent,  and  under  that  portion  of  para- 
graph 2220  of  the  General  Statutes  of  1889  which  provides :  'Tf 
any  agent  shall  neglect  or  refuse  to  deliver  to  his  employer  or  em- 
ployers, on  demand,  any  money,  bank  bills,  treasury  notes,  promissory 
notes,  evidences  of  debt,  or  other  property  which  may  or  shall  have 
come  into  his  possession  by  virtue  of  such  employment,  office  or 
trust,  after  deducting  his  reasonable  or  lawful  fees,  charges  or  com- 
missions for  his  services,  unless  the  same  shall  have  been  lost  by 
means  beyond  his  control,  before  he  had  opportunity  to  make  delivery 
thereof  to  his  employer  or  employers,  or  the  employer  or  employers 
have  permitted  him  to  use  the  same,  he  shall  upon  conviction  thereof 
be  punished  in  the  manner  provided  in  this  section  for  unlawfully 
converting  such  money  or  other  property  to  his  own  use." 

Is  a  receiver  an  "agent,"  within  the  meaning  of  the  quoted  sec- 
tion ?  The  contention  of  the  defendant  is  that  the  relation  of  agency, 
as  ordinarily  understood,  does  not  exist  between  a  receiver  and  the 
court  which  appoints  him  or  the  parties  for  whom  he  acts.    A  ma- 


2  NATURE   AND    KINDS. 

jority  of  the  court  agree  with  this  contention,  and  are  of  opinion 
that  a  receiver  is  not  an  agent,  within  the  meaning  of  the  statute. 
It  is  held  that,  in  construing  a  criminal  statute,  words  must  be  given 
their  ordinary  meaning,  unless  it  is  clear  that  another  was  intended, 
and  that  to  place  receivers  in  a  class  with  agents  requires  an  unusual 
and  strained  construction  of  the  statutory  language.  It  does  not 
appear  that  receivers  have  ever  been  designated  as  agents  in  our 
statutes  or  in  the  decisions  of  the  court,  and,  as  an  evidence  that  they 
were  not  within  legislative  contemplation,  attention  is  called  to  the 
fact  that  in  the  first  part  of  the  section  mention  is  made  of  executors, 
administrators,  guardians  and  others,  vested  with  official  functions 
somewhat  similar  to  those  exercised  by  receivers,  but  no  mention  is 
made  of  receivers.  It  is  argued  that,  if  the  legislature  had  intended 
to  make  receivers  subject  to  the  penalties  of  that  statute,  they  would 
have  been  specifically  enumerated  with  the  others  of  the  same  general 
class.  The  gist  of  the  offense  prescribed  by  the  statute  is  neglect 
or  refusal  of  an  agent  "to  deliver  to  his  employer  or  employers  on 
demand  any  money,"  etc.,  and  it  is  said  that  this  statute  manifestly 
contemplates  that  the  agent  mentioned  shall  have  an  employer.  Can 
it  be  said  that  the  court  is  the  employer  of  the  receiver,  or  that  he 
is  employed  by  the  parties  to  the  action  wherein  the  receiver  is  ap- 
pointed? The  court  does  not  pay  the  receiver,  and  is  not  an  employer 
as  the  term  is  ordinarily  understood.  So,  it  is  said  that  the  parties 
litigant  cannot  be  said  to  have  employed  him,  because  they  did  not 
consent  to  his  appointment,  and  he  does  not  act  under  their  orders 
or  directions.  A  receiver  is  generally  regarded  as  an  officer  of  the 
court,  and  subject  to  its  orders  and  directions.  The  property  or 
money  which  comes  into  his  hands  as  such  officer  is  regarded  as 
being  in  cnstodia  Icgis,  to  be  delivered  or  paid  over  to  those  who  may 
establish  a  right  to  the  same.  He  stands  in  an  indifferent  attitude, 
not  representing  the  plaintiff'  or  the  defendant,  but  really  represent- 
ing the  court,  and  acting  under  its  direction,  for  the  benefit  of  all  the 
parties  in  interest.  He  has  no  powers  other  than  those  conferred  by 
his  appointment,  and  being  but  the  hand  or  arm  of  the  court  itself, 
the  conclusion  is  that  he  does  not  stand  in  the  relation  of  agent  to  the 
court  or  to  the  parties  in  litigation.  The  writer  is  unable  to  reach 
this  conclusion.  The  term  "agent"  is  one  of  wide  application,  and  as 
used  in  the  statute  it  seems  to  fairly  include  receivers.  "Agency  is 
the  relation,  created  either  by  express  or  implied  contract,  or  by  law, 
whereby  one  party  siii  juris,  called  the  principal,  constituent,  or 
employer,  delegates  the  transaction  of  some  lawful  business,  with 
more  or  less  discretionary  power,  to  another  party,  called  the  agent, 
attorney,  proxy,  or  delegate,  who  undertakes  to  manage  the 
affair  and  render  to  him  an  account  thereof."  i  Am.  &  Eng.  Enc. 
Law  (2d  Ed.^  937.  Webster  defines  an  "agent"  as  "one  who  acts 
for  or  in  the  place  of  another,  by  authority  from  him."  To  constitute 
agencv  in  its  broader  sense,  it  is  not  essential  that  it  should  be  created 


'    r  the  law,  and  any  one 

or  undertakes  to  do  something  for  him  and 

..  j..._;>orly  designated  as  an  "acr-^' *^  "   ^''^  the  mind 

e  term  "agent"  was  not  used  in  v  -  in  a  lim- 

'   of  using-  restrictive  language,  is  de- 

. .plication  are  emr^loved.    For  inst  ^  words 

used  \  ■'  '         '  ty  for 

iccount  ^  pos- 

"such  ;  .be  words 

,:.     ...ly  bt-oadeii  "ent,"  and 

•-t  the  legislature  did  not  inte  ->  agencies 

-  '■  ''  • '  r-.ct,  but  rati'  '-^nd  to 

t  or  official  State 

'.  I/O,  it  was  contended 
1  sense ;  and  it  was  there  ; 

this  provision  to  the  agents  previoiisiy 

;,  I:        ally  have  said  'any  such  agent/  and  that. 

to  use  that  or  some  similar  term,  and  in  fact  using  the  corn 

Jve   expression    'any   agent/   it  intended   to   include   every 

In  State  v.  Spaulding,  24  Kan.  i,  the  city  clerk,  who  was 

for  the  embezzlement  of  license  fees,  and  which  had  not 

o  the  city  treasurer,  contended  that  he  was  not  the  3gent 

City,  within  the  meaning  of  the  law,  and  it  was  held  :  u 

•■umes  to  act  as  the  agent  of  another,  he  ma-'   v.ci.  '- 

.,  deny  his  a.i^rency,  I'wd  "that  one  who 

money  is  agent   (•-.■-•-?■■   +'^   '---  '•"nishcu    l.    ■, ..^   . /./.imx,;,,    h. 
■ther  embezzlemc  a  county  treasurer,  it  was 

■  led  that  he  had  no  empio^er,  ui me  st        '  •      '  '  '     ' 
ed  in  the  statute ;  but  the  court  ^av 
^  he  v/a'^ 
1  thit  b' 
ior  the 
-!.  274,  2( 

■'c  a  recc  ;  under  its  or- 

nd  instriK. Ill  1-.   ,.;-   (-j.u.T.i  -   "lie  parti'=,:- 

ation  is  that  of  agency.   He  re  1  the.  pa; 

•  them  all  in  the  trans  h 

d.   The  defendant  he  - 

3  of  the  state  printing  estabh- 
transactions  with  hundreds  o:  ,.,.     ..    .;..  .  ... 

!  out  of  the  state.   In  dealing  with  these  parties  he 
court  and  those  who  owned  an  interest  in  thr   • 
isiness.  They  may  properly  be  regarded  as  th 
'id  he  as  the  agent,  rei' 
ler  the  authority  ar  . 

'   nv  I5(S,  it  is  said  taai    die  i\ 
no:  him  is  one  of  nc':ricv;''  ,-  •  : 


LiC  g^iven 
.v..  .1  intended, 
es  an  unusual 

'     ,1  ..'s  not 


nployer.   Can 

■    '^r  that  he 

or  is  ap- 


ofFicer  is  regarded  as 


•n,  and 


Vm.  &  Eng.  En  • 
"      "  who  act 
L.onstitnt  ^ 
..id  be  cr- 


DEFINITION.  3 

by  agreement  or  contract ;  it  may  arise  under  the  law,  and  any  one 
who  represents  another  or  undertakes  to  do  something  for  him  and 
on  his  authority  is  properly  designated  as  an  "agent."  To  the  mind 
of  the  writer  the  term  "agent"  was  not  used  in  the  statute  in  a  lim- 
ited sense.  Instead  of  using  restrictive  language,  expressions  de- 
noting the  widest  application  are  employed.  For  instance,  the  words 
"any  agent"  are  used ;  and,  in  treating  of  the  money  or  property  for 
which  he  must  account  it  speaks  of  that  which  comes  into  his  pos- 
session by  virtue  of  "such  employment,  office  or  trust."  The  words 
last  quoted  certainly  broaden  the  meaning  of  the  term  "agent,"  and 
indicate  that  the  legislature  did  not  intend  to  confine  it  to  agencies 
arising  under  a  mere  contract,  but  rather  that  it  should  extend  to 
agencies  possessing  the  trust  or  official  character  as  well.  In  State 
V.  Bancroft,  22  Kan.  170,  it  was  contended  that  the  word  "agent" 
was  used  in  a  limited  sense ;  and  it  was  there  held  that,  "if  the  legis- 
lature had  intended  to  limit  this  provision  to  the  agents  previously 
enumerated,  it  would  naturally  have  said  'any  such  agent,'  and  that, 
failing  to  use  that  or  some  similar  term,  and  in  fact  using  the  com- 
prehensive expression  'any  agent,'  it  intended  to  include  every 
agent."  In  State  v.  Spaulding,  24  Kan.  i,  the  city  clerk,  who  was 
prosecuted  for  the  embezzlement  of  license  fees,  and  which  had  not 
been  paid  to  the  city  treasurer,  contended  that  he  was  not  the  agent 
of  the  city,  within  the  meaning  of  the  law,  and  it  was  held  that,  when 
one  assumes  to  act  as  the  agent  of  another,  he  may  not,  when  chal- 
lenged, deny  his  agency,  and  "that  one  who  is  agent  enough  to  re- 
ceive money  is  agent  enough  to  be  punished  for  embezzling  it." 
In  another  embezzlement  case,  against  a  county  treasurer,  it  was 
contended  that  he  had  no  employer,  in  the  sense  in  which  that  term 
was  used  in  the  statute ;  but  the  court  gave  no  ear  to  the  conten- 
tion, and  held  that,  although  he  was  an  officer,  the  public  might  be 
regarded  as  his  employer,  and  that  he  was  therefore  subject  to  prose- 
cution for  the  embezzlement  of  the  public  funds.  State  v.  Smith, 
13  Kan.  274,  294. 

While  a  receiver  is  an  officer  of  the  court,  and  acts  under  its  or- 
ders and  instructions,  his  relation  to  the  court  and  to  the  parties 
in  litigation  is  that  of  agency.  He  represents  the  court  and  the  par- 
ties, and  acts  for  them  all  in  the  transaction  of  the  business  for  which 
he  was  appointed.  The  defendant  here  was  intrusted  with  the  prop- 
erty and  business  of  the  state  printing  establishment  and,  as  receiver, 
he  had  business  transactions  with  hundreds  of  persons  and  corpora- 
tions in  and  out  of  the  state.  In  dealing  with  these  parties  he  repre- 
sented the  court  and  those  who  owned  an  interest  in  the  printing 
plant  and  business.  They  may  properly  be  regarded  as  the  principal 
or  principals,  and  he  as  the  agent,  representing  them,  and  transacting 
the  business  under  the  authority  and  direction  of  the  court.  In  20 
Am.  &  Eng.  Enc.  Law  158,  it  is  said  that  "the  relation  of  a  receiver 
to  the  court  appointing  him  is  one  of  agency ;"  and  so  it  would  ap- 


4  NATURE   AND    KINDS, 

pear  that,  when  the  statute  employs  language  indicating  that  the 
term  "agent"  is  to  be  applied  in  its  wider  sense,  it  should  be  held  to 
include  receivers.  See  also,  Ellis  v.  Little,  2']  Kan.  707.  It  can  hardly 
be  that  the  legislature,  which  apparently  was  endeavoring  to 
reach  every  one  guilty  of  embezzlement,  intended  to  exempt  a  class 
of  persons  intrusted  with  property  and  funds  so  numerous  as  re- 
ceivers ;  and,  unless  they  are  held  liable  within  the  provisions  of  this 
statute,  they  cannot  be  punished  for  embezzlement.  As  a  majority 
of  the  court  are  of  opinion  that  they  are  not  included  within  the  terms 
of  the  statute,  it  must  be  held  that  the  court  erred  in  overruling  the 
motion  to  quash  the  information.  The  judgment  of  the  district  court 
will  be  reversed,  and  the  cause  remanded,  with  direction  to  discharge 
the  defendant. 

DosTER,  C.  J.,  concurring.   Johnston,  J.,  dissenting. 

Allen,  J.  (concurring  specially).  It  is  apparent  that  the  informa- 
tion was  framed  to  charge  the  defendant  with  embezzlement  under 
the  last  part  of  paragraph  2220,  which  relates  to  agents  only,  and 
that  the  case  was  tried  on  the  theory  that  he  was  so  charged.  That  a 
receiver  is  not  an  agent,  having  an  employer  to  whom  he  is  bound  to 
account  and  pay  over  the  money  received,  within  the  usual  meaning 
of  the  words,  seems  to  me  reasonably  clear.  Whether  a  receiver 
might  be  charged  and  convicted  of  embezzlement  under  the  first  part 
of  the  paragraph  is  a  question  concerning  which  I  am  unable  to  find 
a  satisfactory  answer.  Receivers  are  not  named,  nor  do  they  fall 
strictly  within  any  class  of  persons  mentioned  in  the  section ;  yet  it 
would  seem  to  be  in  the  nature  of  things  the  same  offense  for  a  re- 
ceiver to  convert  to  his  own  use  trust  funds  in  his  hands  as  for  any 
person  belonging  to  either  of  the  classes  mentioned  to  convert  like 
funds  in  his  hands. ^ 

^  "The  term  agent  may,  therefore,  be  said  to  apply  to  any  one  who  by  author- 
ity performs  an  act  for  another."  Hadley,  J.,  in  Wynegar  v.  State,  157  Ind. 
577,  579-  . 

See  article,  "Agency,"  by  O.  W.  Holmes,  Jr.,  in  4  Harv.  Law  Rev.  345-364 
and  5  Harv.  Law  Rev.  1-23.  See  also  article,  "Of  the  Nature  of  Agency,"  by 
Everett  V.  Abbot,  9  Harv.  Law  Rev.  507-520. 

See  brief  discussion  of  the  inandatnm  of  the  Roman  Law  in  Story  on 
Agency  (8th  ed.),  §  4. 

On  the  distinction  between  an  agency  and  a  partnership,  see  Person  v.  Car- 
ter, 7  N.  Car.  321,  324. 


Section  2. —  >ii  Between  Asrent  and  Servant. 


cLLAIE  UOURT  OF  INDIA;  3_pp.   8o. 

.LO.  sued  Silvers  arid  Silvers  oi  ssory  note  al- 

f^  been  executed  by  tb^^  ht<«"r  to  r.    The  com- 

•nt  of  a  debt 

/  the  note  was 

II  one  Nichols,  a  travehng  salesman  of  the  plaintiff 

..  ../ity  from  plaintifi'  '      ■-  ^  - '■-  v-.^+..  ^'--ni  defend- 

iier  the  note  had  bev  :-fendants 

d  to  Nichols  to  be  oy  r.ur,   : vjdv^j^. '..J   r  ,  .     .  ■• 

-ed  the  note  so  as  to  make  it  provide  for 

instead  of  from  the  time  of  maturity  ;  tiiai  tlic 

in  the  absence  and  without  the  knowledge  or 

:ther  plaintiff  or  defendants ;  that  the  note  was  delivered 

lo  plaintiff  in  its  altered  state,  and  that  plaintiff  never, 

ratified  or  approved  of  such  alteration.   The  suit  was  on 

111  its  original  state.   In  the  circuit  court  the  defendants  de- 

generally  to  the  complaint.    The  circuit  court  sustained  the 

r  and  rendered  judgment  for  the  defendants.    One  of  the 

•J  questions  in  the  case  was  whether  at  the  time  Nichols  made 

'  ation  of  the  note,  as  alleged  in  the  complaint,  he  sustained 

ion  of  agent  to  the  plaintiff  so  as  t'^  r,'-'.i.'r  the  act  of  altera- 

act  for  which  plaintiff'  was  respci  r  if  the  alteration 

'■'■'•]  and  was  made  by  the  plaintin  ^  a;^.cnt,  the  note  would 

)me  null  and  void,  whereas  although  the  alteration  was 

.  \et  if  it  was  r\-'  ■  '     '  'ranger,  it  would  be  but  a 

•n  and  v/nuld  m' 


'),  but  it  entrusted  certain  bus'  its  agent,  and 

rson  made  the  ah  ••   '■    -     •  '  udS  made  by  the 

.  hile  in  the  tran^  isiness  and  in  the 

f  his  autlioritv.  :  ji  ihc  agent  is  the  act  of  the 

!    Qui  facit  per  :r  se.   Th/-  'solution  of  this  case 

n  the  relation  existing  betwet  :  and  the  plaintiff, 

ihe  alteration  was  made.   If  1  ^  .::e  plaintiff's  ae<  'V- 

act  was  within  the  scope  of  his  authority,  then  his  act 
•''  the  act  of  the  plaintiff  and  the  law  is  with  the  defen  . 
■  n  was  that  of  a  mere  stranger  to  the  note,  then  tl 
'    '  ;tiff.     *     *     *  . 

I'urther  insist  that  Nichols  was  the  ardent  o^ 
deration ;  that  he  was  acting  in  tlic 
■  of  his  e^T•lo^•me^.t :  that  his  w; 


uhat  the 

■.^.i  00  held  to 

ft  can  hardly 

adng    to 

'':  a  class 


agents 

1  charge(t.    j.  w.  -. 
om  he  is  bound  t' 
'  meaniiv 


nor  do  the 


V.  Law  Rev.  34573^' 
.cure  of  Agency,"'  l, 

'1   Law  in   Story  c 

\  see  Person  v.  Cat 


AGENT    AND    SERVANT.  5 

Section  2. — Distinction  Between  Agent  and  Servant. 

KINGAN  &  CO.  V.  SILVERS  and  Others. 
1895.     Appellate  Court  of  Indiana.     13  Incl.  App.  80. 

KiNGAN  &  Co.  sued  Silvers  and  Silvers  on  a  promissory  note  al- 
leged to  have  been  executed  by  the  latter  to  the  former.  The  com- 
plaint alleged  that  the  note  was  executed  in  settlement  of  a  debt 
owing  by  defendants  to  plaintiff ;  that  the  execution  of  the  note  was 
procured  through  one  Nichols,  a  traveling  salesman  of  the  plaintiff 
wIto  had  authority  from  plaintiff  to  obtain  such  note  from  defend- 
ants ;  that  after  the  note  had  been  written  and  signed  by  defendants 
and  delivered  to  Nichols  to  be  by  him  conveyed  to  the  plaintiff, 
Nichols  altered  the  note  so  as  to  make  it  provide  for  interest  from 
date  of  its  execution  instead  of  from  the  time  of  maturity ;  that  the 
alteration  was  made  in  the  absence  and  without  the  knowledge  or 
consent  of  either  plaintiff'  or  defendants ;  that  the  note  was  delivered 
by  Nichols  to  plaintiff'  in  its  altered  state,  and  that  plaintiff  never, 
in  any  way,  ratified  or  approved  of  such  alteration.  The  suit  was  on 
the  note  in  its  original  state.  In  the  circuit  court  the  defendants  de- 
murred generally  to  the  complaint.  The  circuit  court  sustained  the 
demurrer  and  rendered  judgment  for  the  defendants.  One  of  the 
principal  questions  in  the  case  was  whether  at  the  time  Nichols  made 
the  alteration  of  the  note,  as  alleged  in  the  complaint,  he  sustained 
the  relation  of  agent  to  the  plaintiff  so  as  to  render  the  act  of  altera- 
tion an  act  for  which  plaintiff  was  responsible  ;  for  if  the  alteration 
was  material  and  was  made  by  the  plaintiff's  agent,  the  note  would 
thereby  become  null  and  void,  whereas  although  the  alteration  was 
material  yet  if  it  w^as  made  by  a  mere  stranger,  it  would  be  but  a 
spoliation  and  would  not  destroy  it. 

LoTZ,  J.    [After  deciding  certain  other  questions.] 

The  change  in  the  note  was  not  made  by  the  plaintiff's  order  or 
direction,  but  it  entrusted  certain  business  to  another  as  its  agent,  and 
such  person  made  the  alteration.  If  the  alteration  was  made  by  the 
agent  while  in  the  transaction  of  the  principal's  business  and  in  the 
scope  of  his  authority,  then  the  act  of  the  agent  is  the  act  of  the 
principal.  Qui  facit  per  alium  facit  per  se.  The  solution  of  this  case 
depends  upon  the  relation  existing  between  Nichols  and  the  plaintiff, 
at  the  time  the  alteration  was  made.  If  he  was  the  plaintiff's  agent, 
and  the  act  was  within  the  scope  of  his  authority,  then  his  act  must 
be  deemed  the  act  of  the  plaintiff  and  the  law  is  with  the  defendants. 
If  his  position  was  that  of  a  mere  stranger  to  the  note,  then  the  law 
is  with  the  plaintiff.     *     *     * 

The  appellees  further  insist  that  Nichols  was  the  agent  of  the  payee 
in  making  the  alteration ;  that  he  was  acting  in  the  line  of  his  agency 
and   under  color  of  his  employment ;  that  his  wrongful  act  is  im- 


NATURE   AND    KINDS. 


putable  to  his  principal.  In  support  of  this  position  appellees'  learned 
counsel  say:  "This  is  upon  the  legal  maxim'  'whatever  a  man  sui 
juris  may  do  of  himself  he  may  do  by  another,'  and,  as  a  correlative, 
whatever  is  done  by  such  other  in  the  course  of  his  employment  is 
deemed  to  be  done  by  the  party  himself.  On  this  principle  the  lia- 
bility of  one  person  for  the  acts  of  another  who  is  employed  in  the 
capacity  of  an  agent  is  extended  to  the  wrongful  and  tortious  acts 
of  the  latter  committed  in  the  line  and  under  color  of  the  agency, 
although  such  unlawful  acts  were  not  contemplated  by  the  em- 
ployment, and  were  done  by  the  agent  in  good  faith  and  by  mistake. 
In  other  words,  where  a  principal  directs  an  act  to  be  done  by  an 
agent,  in  a  lawful  manner,  but  the  agent  errs  in  the  mode  of  execut- 
ing his  authority  to  the  prejudice  of  another  person,  the  principal 
will  be  held  responsible."  This  is  a  correct  statement  of  the  law.  The 
same  principles  extend  to  the  relations  existing  between  a  master  and 
his  servant.  Thus  if  the  engineer  of  a  railway  company  negligently 
run  a  train  of  cars  over  a  person  who  is  without  fault,  the  company 
is  liable  for  the  injury  caused.  The  same  doctrine  is  applied  to  the 
willful  acts  and  the  mistakes  of  agents  and  servants,  committed  by 
them  while  acting  within  the  scope  of  the  agency  or  line  of  the  em- 
ployment. May  V.  Bliss,  22  Vt.  477 ;  Luttrell  v.  Hazen,  3  Sneed 
(Tenn.)  20;  Pennsylvania  Co.  v.  Weddle,  100  Ind.  138;  Evansville, 
etc.,  R.  R.  Co.  V.  McKee,  99  Ind.  519  ;  Crockett  v.  Calvert,  8  Ind.  127. 
At  the  time  Nichols  made  the  alteration  of  the  note,  was  he  the 
agent  or  servant  of  the  plaintiff  in  respect  to  his  duties  pertaining 
to  said  note?  It  is  averred  that  he  was  the  traveling  salesman,  but 
that  he  was  not  a  general  agent,  and  had  no  authority  to  make  settle- 
ments or  take  notes  on  plaintiff's  acccounts ;  nor  was  that  any  part 
of  his  duties ;  that  being  about  to  go  to  Lebanon  in  the  course  of  his 
duties  as  such  traveling  salesman,  the  plaintiff  instructed  him  to  pro- 
cure for  plaintiff  from  the  defendants  a  note  on  account  of  an  in- 
debtedness due  from  them  to  the  plaintiff.  But  the  averments  of  the 
complaint  negativing  the  fact  of  agency  will  not  control  if  it  appear 
from  all  the  averments  that  the  legal  relation  of  agency  exists.  The 
same  person  may  be  a  special  agent  for  the  same  principal  in  several 
different  matters.  Nichols  was  the  agent  of  the  plainfiff  to  sell  goods. 
He  was  also  its  agent  to  procure  the  note.  We  are  here  concerned 
with  the  latter  agency  only.  Did  his  relation  as  agent  cease  when  he 
obtained  the  note  or  did  it  continue  until  the  note  was  delivered  to 
the  plaintiff?  If  the  agency  ceased  when  the  note  was  obtained  by 
him,  what  relation  did  he  sustain  to  the  plaintiff  in  the  interval 
of  time  between  the  delivery  to  him  and  the  delivery  to  plaintiff? 
This  leads  to  the  inquiry:  "Who  are  agents  and  who  are  servants?" 
In  the  primitive  conditions  of  society  the  things  which  were  the 
subjects  of  sale  and  trade  were  few  in  number.  There  was  little 
occasion  for  any  one  to  engage  in  commercial  transactions,  and  when 
it  did  become  necessary  the  business  was  generally  transacted  by  the 


servnnt:-^ 

and   n  :i 

Oi   ■'iJn.i' 

gro^v'■: 

sari'. 

is  a  .-.<T 

AGENT    .\SD    S) 

parties  thereto  in  person.    But  the  strong  and  powerful  had  many 
uhv  ^'  ere  usually  slaves.    The  servants  performed  menial 
,  ::  •        vices  for  the  master.    As  civilization  advanced  the 
are  the  subjects  of  commerce  increased,  and  it  bc 
perform  commercial  transactions  through  the  nie. 
persons.  The  relation  of  principal  and  agent  is  but  an  out- 
'1    expansion  of  the  relat.'i^'-,      ""  nm-t^r  and  servant.    The 
■  at  apply  to  the  one  t  jther.   There 

.v^.i  similarity  in  the  lej'  ng  from  the 

two  relations.    It  i.^  often  difficul  ifference  be- 

1  agent  and  a  servant,     ir;-:-  'liiiiciuiy  .?  irc.-. 
the  same  individual  often  combiner  in  hi<:  o\- 
■  of  both  agent  and  servant.  denomi: 

md  servants  are  ofterl  calleu  id  "ser\ . 

in   .  >  3t  meaning  includes  an  agent,     ihere  is,  however,  in 

'■    -  plation  a  difference  between  an  agent  and  a  servant. 

,  to  whom  we  are  indebted  for  many  of  the  principles  of 
ii^v        ,  ;u  die  early  stages  of  their  laws  used  the  terms  mandatum 
(t"       u  into  one's  hand  or  confide  to  the  discretion  of  another)  and 
'   (to  transact  business  or  to  treat  concerning  purchas 
:;  this  rekition).  Story  Agency,  §  4.  Agency,  properly  si 
,es  to  commercial  or  business  transactions,  while  service  has 
to  actions  upon  or  concerning  things.    Service  deals  with 
of  manual  or  mechanical  execution.    An  agent  is  the  more 
;■---•'■•  nve  of  the  master  and  clothed  with  higher  powers 
f'tion  than  a  servant.  Mechem  Agency,  §§  r  and  2. 
and  "servant"  are  so  frequently  used  ii''     - 
ividications  that  the  reader  is  apt  to  conc^ 
n  Liie  same  thing.    We  think,  however,  that  the  history  oi 
•caring  on  this  subject,  shon  -  fhat  there  is  a-  difference  be- 
em.    Agency  in  its  legal  .vays  imports  commercial 

■jetween  two  par'-'-    ■  ■  '.u^h  th^;-  •-•''"•-  -  -■'  -•■-'■her 

V  negotiates  or  i-  -d  parti  i;m- 

her.    When  Aic  •  aig  wall  the 

.i)ncerning  the  n'  len  the  note 

.ered  to  him  it  Was  in  la  •  tiie 'plaintiff,  and  1  ■ 

treat  or  deal  with  the  d-  U  his  duties  concc-n- 

Llien  related  to  the  plaintiff.  It  was  his  duty  to  carry  and 
ihe  plaintiff.  In  doing  thi'-  ■'^-  •  ed  no  duty  to  the  de- 
.  ceased  to  be  an  agent  b  ■  was  not  required  to 

vitli  third  parties.    He  v/ho  t'lt  :i  rvant  of  the 

.ed  with  the  duty  of  faithfully  c."  .id  deliver! 'ig, 

.ster.  When  Nichols  made  the  akeralion  in 
•nt  and  not  the  agent  of  the  plaintiff.    A 
r  contend,  that  if  it  be  true  that  the 


:  ned 

sui 

we, 

nicnt  is 

the  lia- 

1  in  the 

.  •  ;)us  acts 

the  agCDcy. 

"    ^he  eni- 

riistake. 


;tted  by 
:he  em- 

.   Sneed 


.;..rt 

-t  of  his 

•  to  pro 

't  of  an  in- 

.  V  J.  ;nents  of  the 

jtrdl  if  it  appear 

-         -■  -     'Hie 


,  he 

10 

by 

i!<    iiL'.  i  val 

o  plaintiff? 

servants?" 

'  were  the 

,   IS  Httle 

1   vhen 

.he 


AGENT   AND    SERVANT.  7 

parties  thereto  in  person.  But  the  strong  and  powerful  had  many 
servants  who  were  usually  slaves.  The  servants  performed  menial 
and  manual  services  for  the  master.  As  civilization  advanced  the 
things  which  are  the  subjects  of  commerce  increased,  and  it  became 
necessary  to  perform  commercial  transactions  through  the  medium 
of  other  persons.  The  relation  of  principal  and  agent  is  but  an  out- 
growth or  expansion  of  the  relation  of  master  and  servant.  The 
same  rules  that  apply  to  the  one  generally  apply  to  the  other.  There 
is  a  marked  similarity  in  the  legal  consequences  flowing  from  the 
two  relations.  It  is  often  difficult  to  distinguish  the  difference  be- 
tween an  agent  and  a  servant.  This  difficulty  is  increased  by  the 
fact  that  the  same  individual  often  combines  in  his  own  person  the 
functions  of  both  agent  and  servant.  Agents  are  often  denominated 
servants  and  serv-ants  are  often  called  agents.  The  word  "servant" 
in  its  broadest  meaning  includes  an  agent.  There  is,  however,  in 
legal  contemplation  a  difference  between  an  agent  and  a  servant. 
The  Romans,  to  whom  we  are  indebted  for  many  of  the  principles  of 
agency,  in  the  early  stages  of  their  laws  used  the  terms  mandatum 
(to  put  into  one's  hand  or  confide  to  the  discretion  of  another)  and 
negotiiim  (to  transact  business  or  to  treat  concerning  purchases  in 
describing  this  relation).  Story  Agency,  §  4.  Agency,  properly  speak- 
ing, relates  to  commercial  or  business  transactions,  while  service  has 
reference  to  actions  upon  or  concerning  things.  Service  deals  with 
matters  of  manual  or  mechanical  execution.  An  agent  is  the  more 
direct  representative  of  the  master  and  clothed  with  higher  powers 
and  broader  discretion  than  a  servant.  Mechem  Agency,  §§  i  and  2. 
The  terms  "agent"'  and  "servant"  are  so  frequently  used  inter- 
changeably in  the  adjudications  that  the  reader  is  apt  to  conclude 
they  mean  the  same  thing.  We  think,  however,  that  the  history  of 
the  law  bearing  on  this  subject,  shows  that  there  is  a  difference  be- 
tween them.  Agency  in  its  legal  sense  always  imports  commercial 
dealings  between  two  parties  by  and  through  the  medium  of  another. 
An  agent  negotiates  or  treats  with  third  parties  in  commercial  mat- 
ters for  another.  When  Nichols  was  engaged  in  treating  with  the 
defendants  concerning  the  note  he  w^as  an  agent.  When  the  note 
was  delivered  to  him  it  was  in  law  delivered  to  the  plaintiff,  and  he 
ceased  to  treat  or  deal  with  the  defendants.  All  his  duties  concern- 
ing the  note  then  related  to  the  plaintiff.  It  was  his  duty  to  carry  and 
deUver  it  to  the  plaintiff.  In  doing  this  he  owed  no  duty  to  the  de- 
fendants. He  ceased  to  be  an  agent  because  he  was  not  required  to 
deal  further  with  third  parties.  He  was  then  a  mere  servant  of  the 
plaintiff  charged  with  the  duty  of  faithfully  carrying  and  delivering 
the  note  to  his  master.  When  Nichols  made  the  alteration  in  the  note 
he  was  the  servant  and  not  the  agent  of  the  plaintiff.  Appellee's 
learned  counsel  further  contend,  that  if  it  be  true  that  the  master  is 
liable  for  the  wrongful  and  tortious  acts  of  his  servant  it  can  make 
but  little  difference  whether  Nichols  was  asrent  or  servant  when 


8  NATURE   AND    KINDS. 

he  made  the  change.  Upon  what  principle  is  the  master  liable  for 
the  wrongful  acts  of  his  servant?  This  inquiry  carries  us  back  to  the 
verv  dawn  of  jurisprudence.  The  modem  idea  of  law  is  that  it  con- 
sists of  those  rules  of  conduct  prescribed  and  enforced  by  the  sov- 
ereign power  of  the  state.  But  as  Mr.  Justice  Stephen  truly  remarks : 
"It  is  not  till  a  very  late  stage  of  its  history  that  law  is  regarded  as  a 
series  of  commands  issued  by  the  sovereign  power  of  the  state."  As 
a  matter  of  historical  fact  ancient  laws  were  not  commands.  They 
were  not  issued  by  political  superiors,  nor  were  they  enforced  by 
punishment  or  otherwise.  "They  were  merely  customs  sanctioned  by 
usage  voluntarily  observed  with  that  strong  devotion  to  usage  which 
always  characterizes  uncivilized  nations."  Vengeance  on  the  part  of 
the  person  injured  is  the  foundation  of  all  legal  redress.  The  early 
history  of  all  political  societies  shows  the  same  system  of  private 
revenge  and  personal  redress  of  injuries.  Each  person  avenged  in 
whatever  manner  he  deemed  right  the  injuries  done  him.  The  tribal 
customs  not  onlv  sanctioned  his  doing  so,  but  perhaps  required  him 
to  do  so.  If  he  failed  to  avenge  an  injury  or  wrong  he  was  brought 
under  the  ban  of  public  contumely.  The  spirit  of  retaliation  is  deeply 
rooted  in  human  nature.  Retribution  in  kind  is  the  first  impulse  of 
the  savage  mind  on  sustaining  an  injury.  "An  eye  for  an  eye,  a 
tooth  for  a  tooth ;  who  so  sheddeth  man's  blood  by  man  shall  his 
blood  be  shed — was  the  rule  of  all  early  and  savage  communities." 
If  one  man  killed  another,  custom  permitted  and  perhaps  required 
that  the  blood  relatives  of  the  deceased  should  avenge  his  death  by 
killing  the  slayer.  The  Romans  were  the  most  civilized  of  all  the  an- 
cient peoples.  Their  laws  form  the  basis  of  all  modern  jurisprudence. 
Yet  Mr.  Mayle,  in  speaking  of  Roman  law,  well  says :  "A  system  of 
self-redress  in  the  form  of  private  vengeance  preceded  everywhere 
the  establishment  of  a  regular  judicature;  the  injured  person,  with 
his  kinsmen,  or  dependents,  made  a  foray  against  the  wrongdoer, 
and  swept  away  his  cattle  and  with  them  perhaps  his  wife  and  chil- 
dren, or  he  threatened  him  with,  supernatural  penalties  by  'fasting' 
upon  him  as  in  the  east  even  at  the  present  day ;  or  finally  he  re- 
duced his  adversary  to  servitude  or  took  his  life."  Mayle's  Just. 
Inst.  Vol.  I,  p.  614.  The  family  or  tribe  of  the  person  who  had  com- 
mitted an  offense  might  escape  the  vengeance  of  their  adversaries 
by  delivering  up  or  surrendering  the  offending  member.  As  society 
slowly  and  gradually  emerged  from  this  depth  of  barbarism,  a  cus- 
tom arose  by  which  the  person  who  inflicted  the  injury  might  buy 
off  the  vengeance  of  the  injured.  If  the  parties  could  not  agree  on 
the  amount  to  be  paid  the  tribal  assembly  fixed  it.  These  tribal  as- 
semblies met  for  the  purpose  of  fixing  the  price  of  vengeance  are  the 
prototypes  of  modern  courts.  The  idea  that  society  or  the  state  was 
injured  by  a  wrong  inflicted  upon  one  of  its  members  or  upon  his 
property  was  of  much  later  growth.  If  a  man's  slave  inflicted  an  in- 
jury upon  another  the  injured  party  was  entitled  to  wreak  his  venge- 


VND   SERVANT.  V 

I   of  the  injury.    This  same  principle 

uiniate  objects.  But  the  master  or. owner 
1         _e  of  the  injured  person  by  a  money  con- 
thereby  save  the  Hfe  of  his  slave  or  injury  to  his  prop- 
ression  into  the  history  of  law  may  seem  inappropriate 
^  of  this  case.   But  a  knowledge  of  the  hi.story  of  that 
with  which  any  principle  is  connected,  is  often  neces- 
£  true  bearincrs  and  the  limit>'.  of  its  application  can  be 
niiined.  which    have  'rom   certain 

•  someti:.  1,  sim^-b-  be  -  a  similarity 

•^s  of  two  diiierent  cases,  .s  the  true  principle 

iced  or  forgotten  and  a  ii.  .  f-d  to  exr  !.\"n  rules 

•n  a  historical  standpoint  are  wci  is 

said  to  be  the  perfection  of  human  i.  ...-.,n>.  her 

vvhen  the  reason  fails  the  law  fails.   But  \  >ns 

to  certain  conditions,  are  often  mere  piaLiiuu.;i.     i he 
alv^ays  proceed  logically,  for  "the  lif^  nf  thf-  law  has 
ogle  ;  it  has  been  experience.    *    *    *  which 

Jor  granted  have  had  to  be  laboriou-;  ,       out,  or 

at  in  times  passed."  Holmes  Com.  L.,  p.  i.  The  principle 
,!vvni^..:  .n  this  case  is  that  of  the  master's  liabiHty  for  the  tort  of 
Ms  servant.  Let  us  take  a  common  illustration.  The  driver  of  a 
art  negligently  runs  over  another  in  the  street,  the  person 
•ing  without  fault.  The  grocer  is  liable  for  the  negligence 
vant,  the  driver.    But  why  or  up  principle?    It  -s 

^  said  that  the  reason  for  the  mast  iity  in  such  ca^c\ 

'^  his  negligence  in  employing  an  unskilful  servant.    If  this  were 
•  ' '^'-  the  true  reason,  the  logical  result  would  be  that  if  the  master 
.uUty  of  no  negligence  in  employing  the  servant  he  would  not 
ible.   This,  however,  we  know  does  not  foT  '    '  '  "'  are 

hf  master  used   the   gre^nie'^t   f-nre  in   eiv  ii 

■ppose  an  cr.  ;  of  a  r  .ii>   wil- 

a  train  of  cii  ^erson;  -o  •  ompany 

s  liable  for  the  wrongful  act  of  its  servant,  and  that  it  is  no  excuse 
I'or  the  company  to  .say  it  did  not  authorize  the  act  and  that  it  wai- 
lone  without  the  knowledge  or  cojisent  of  the  co  npany,  or  against 
•^s  expressed  will  or  order. 
'It  is  difficult  to  understand  this  principle  of  liability  unless  we  ap- 
h  it  from  the  side  of  history.     It  is  in  reality  a  survival  of  the 
.it  doctrine  that  the  master  or  owner  was  liable  for  the  act  of  his 
and  for  injuries  committed  by  animals  in  his  possession.    Thi 

iu-nt  idea  was  that  the  family  of  the  master,  including  his  -' -  ■ 

his  animals,  and  all  other  property,  was  a  unity;  and  that 
sonality  of  the  master  affected  all  of  his  property  •  ''"  '  ' 
entitled  to  all  the  lienefits  of  ownership  he  must  ; 

•iries  ca', 
ihe  injui- 


u>  tiie 
't  ron- 


leci  as  a 


lilht  impui.se  Oli 

•   for  an  eye,  a 

i.n  shall  his 

■"••mitjes." 

•quired 

',  bv 


everywhere 
erson,  with 
wrongdoer, 


.   .  :.    lie  re-- 

w,.    ie's  Just. 

u  who  had  com- 

'i' ir  adversaries 

As  societ}^ 

A,  :;arism,  a  cus- 

■iurv  misfht  buy 

.   on 

as- 

ure  the 

ate  was 

ijion  his 

■  ■""  in- 

'  ^re- 


AGENT   AND    SERVANT.  9 

ance  upon  the  immediate  cause  of  the  injury.  This  same  principle 
extended  to  animals  and  inanimate  objects.  But  the  master  or  owner 
might  buy  off  the  vengeance  of  the  injured  person  by  a  money  con- 
sideration and  thereby  save  the  life  of  his  slave  or  injury  to  his  prop- 
erty. This  digression  into  the  history  of  law  may  seem  inappropriate 
to  the  decision  of  this  case.  But  a  knov/ledge  of  the  history  of  that 
branch  of  law  with  which  any  principle  is  connected,  is  often  neces- 
sary before  the  true  bearings  and  the  limits  of  its  application  can  be 
fully  determined.  Principles  which  have  originated  from  certain 
causes  are  sometimes  misapplied,  simply  because  there  is  a  similarity 
in  the  facts  of  two  dift'erent  cases,  and  sometimes  the  true  principle 
is  overlooked  or  forgotten  and  a  new  one  invented  to  explain  rules 
which  from  a  historical  standpoint  are  well  established.  The  law  is 
sometimes  said  to  be  the  perfection  of  human  reason,  and  it  is  further 
said  that  when  the  reason  fails  the  law  fails.  But  these  expressions 
when  applied  to  certain  conditions,  are  often  mere  platitudes.  The 
law  does  not  always  proceed  logically,  for  "the  life  of  the  law  has 
not  been  logic ;  it  has  been  experience.  *  *  *  Many  things  which 
we  take  for  granted  have  had  to  be  laboriously  wrought  out,  or 
thought  out  in  times  passed."  Holmes  Com.  L.,  p.  i.  The  principle 
involved  in  this  case  is  that  of  the  master's  liability  for  the  tort  of 
his  servant.  Let  us  take  a  common  illustration.  The  driver  of  a 
grocer's  cart  negligently  runs  over  another  in  the  street,  the  person 
injured  being  without  fault.  The  grocer  is  liable  for  the  negligence 
of  his  servant,  the  driver.  But  why  or  upon  what  principle?  It  is 
sometimes  said  that  the  reason  for  the  master's  liability  in  such  cases 
is  his  negligence  in  employing  an  unskilful  servant.  If  this  were 
really  the  true  reason,  the  logical  result  would  be  that  if  the  master 
was  guilty  of  no  negligence  in  employing  the  servant  he  would  not 
be  liable.  This,  however,  we  know  does  not  follow.  It  is  no  defense 
that  the  master  used  the  greatest  care  in  employing  his  servant. 
Again,  suppose  an  engineer  or  servant  of  a  railroad  company  wil- 
fully run  a  train  of  cars  over  another  person ;  we  know  the  company 
is  liable  for  the  wrongful  act  of  its  servant,  and  that  it  is  no  excuse 
for  the  company  to  say  it  did  not  authorize  the  act  and  that  it  was 
done  without  the  knowledge  or  consent  of  the  company,  or  against 
its  expressed  will  or  order. 

It  is  difficult  to  understand  this  principle  of  liability  unless  we  ap- 
proach it  from  the  side  of  history.  It  is  in  reality  a  survival  of  the 
ancient  doctrine  that  the  master  or  OAvner  was  liable  for  the  act  of  his 
slave  and  for  injuries  committed  by  animals  in  his  possession.  The 
ancient  idea  was  that  the  family  of  the  master,  including  his  slaves, 
his  animals,  and  all  other  property,  was  a  unity ;  and  that  the  per- 
sonality of  the  master  affected  all  of  his  property ;  that  as  he  was 
entitled  to  all  the  benefits  of  ownership  he  must  accept  the  conse- 
quences flowing  from  injuries  caused  by  his  property.  He  might 
buy  off  the  vengeance  of  the  injured  person  or  he  might  appease  it 


10  NATURE   AND    KINDS. 

by  surrendering-  the  injured  property  to  the  person  aggrieved.  In 
Roman  law  there  was  a  class  of  actions  known  as  noxal  actions, 
which  provided  for  this  vicarious  liability.  The  defendant  had  the 
option  of  surrendering  the  delinquent  instead  of  paying  damages. 
In  ancient  times  the  masses  were  slaves ;  in  modern  times  the  masses 
are  freemen.  When  slaves  became  freemen  the  master  was  shorn  of 
his  power  to  surrender  the  delinquent  servant ;  but  he  still  continues 
to  be  liable  for  the  acts  of  his  servant  done  in  the  line  of  employment. 
This  principle  of  liability  originates  in  slavery  and  in  the  power  and 
dominion  that  the  master  exercised  over  the  members  of  his  family. 
But  it  may  be  said  that  as  the  master  has  ceased  to  have  any  property 
in  his  servants,  and  as  he  is  shorn  of  his  power  to  surrender  a  delin- 
quent, the  reason  for  the  rule  fails,  and  that  the  law  must  fall  with 
the  reason,  and  that  this  would  result  in  exonerating  the  master  from 
all  liability  in  all  such  cases.  It  is  true  that  the  power  of  surrender- 
ing the  delinquent  has  ceased,  but  it  is  not  true  that  the  personality 
of  the  master  has  ceased  to  affect  his  servants.  The  will  of  the  mas- 
ter dominates  any  given  enterprise.  He  calls  to  his  aid  servants 
and  appliances.  The  servant  surrenders  his  time  and  in  a  measure 
permits  the  will  of  the  master  to  dominate  and  control  his  actions. 
He  is  the  instrument  of  his  master  in  accomplishing  certain  ends. 
The  servant  is  placed  in  the  position  and  given  the  opportunity  to 
commit  the  wrong  by  the  will  of  the  master.  In  a  qualified  sense 
the  servant  is  the  representative  of  the  master.  Without  the  con- 
trolling, dominating  influence  of  the  master's  will  there  is  but  the  re- 
motest probability  that  the  servant  would  have  been  placed  in  the  po- 
sition or  given  the  opportunity  to  commit  the  particular  wrong. 
Anciently  the  liability  of  the  master  was  not  limited  by  the  duties 
imposed  upon  his  slave.  When  a  servant  became  a  freeman  he  was 
no  longer  a  member  of  the  master's  family,  and  he  could  not  prop- 
erly be  said  to  be  the  representative  of  his  master  except  in  the  line 
of  the  employment.  Modern  jurisprudence  properly  and  justly  lim- 
its the  liability  of  the  master  to  the  acts  of  his  servant  done  within 
the  scope  of  the  employment.  There  is  still  substantial  and  just 
grounds  for  the  principle  that  the  master  is  liable  for  the  wrongful 
acts  of  his  servant.  No  liability  arises  against  the  master  for  the 
wrongful  acts  of  his  servant  unless  the  servant  has  perpetrated  an  in- 
jury either  upon  the  person  or  property  of  another.  Nichols  was  the 
servant  of  the  plaintiff  when  he  made  the  alteration  of  the  note.  But 
did  he  inflict  any  injury  upon  the  property  of  the  defendant?  Cer- 
tainly not.  The  injury,  if  any,  was  inflicted  by  the  servant  upon  the 
property  of  his  own  master,  and  not  upon  the  property  of  the  defend- 
ants. If  appellee's  contention  be  true,  Nichols  destroyed  the  plaintiff's 
note,  and  no  recovery  can  be  had  upon  it  nor  upon  the  original  con- 
sideration. The  principle  that  the  master  is  liable  for  the  tortious 
acts  of  his  servant  committed  in  the  line  of  the  employment  has  no  ap- 


tAL  AND  UNIVERSAf,. 


II 


i)lication  to  the  facts  of  this  case,  for  no  injury  was  done  the  defend- 
.•.nt's  property/     *     * 

Our  c'McnKion  is  tli  ,s,  when  he  made  the  alteration  of  the 

note,  he  relatiou  Lo  it  of  a  stranger,  and  that  his  act  was  a 

mere  -\ 

Jn.  's  and  Gavin  dissented. 


■  f  -h 


iho. 


, PI  lice-. - 


Section  3. — Special,  General  and  Universal  Agents. 
WOOD 


841;.    Supreme  Court  OF  Alaba-  ..■•- 

r  err.ji  to  the  circuit  court  of  Talledega. 
■endant  in  error  having  recovered  a  judgment  against  Wii- 
-vis  and.EHsha  B.  Stedman,  made  the  affidavit  required  by 
and  caused  a  garnishment  to  be  issued  and  served  on  sun- 
ns supposed  to  be  debtors  of  Stedman,  among  whom  was 

mitli.  This  garnishee  appeared  and  answered  that  he  was 
•  0  Stedman  for  professional  services  as  a  physician,  ren- 

840,  to  the  amount,  as  he  understood,  of  ninety-six  dollars, 

s  due  on  the  first  of  January,  1841.  Some  few  days  pre- 
iie  service  of  the  garnishment,  the  garnishee  was  informed 
.\v  Wood,  that  he  need  not  consider  himself  Stedman's 

•  longer,  that  the  books  or  accounts  of  the  latter  had  been 

l  to  him.     Wood  proHr.red  no  written  transfer,  and  the 

iuade  no  promise  of 
.  .rmity  to  law,  a  not:.     .  -^ued.  reculriniy  Wood  to  ap- 


II  of  the  opinion  is  onit!- 
a-t  of  ser 
//  servan. 

'f 

speci**?  of  serva: 


tiie  ]aw3  of  Eng- 
doenia,  or  domes- 

om  apprendre,  to 

'         ■  nr  inden- 

•    m.  *  *  * 

'  '■ '  day 


:'rior,  a  minisienr:! 
'"rn^     "hap.  XIV, 


inction  between 
Kent  Com.  ( ; 
•'  bv  Tohn  H.  ■ 


such  a 

c 


In 

-■.'....lOns, 
had  the 


nilv. 


-    , .aali.y 

will  of  the  mas- 
aid  servants 
n  a  measure 
actions. 


he  WHS 
•t  prop- 
the  line 


lor  the 

J  an  in- 

was  the 

;..   But 

C'er- 

...i.  ii|-..'ii  the 

!  the  defend- 

'     •  Iff's 

.  on- 

ihc  tortious 

iit  has  no  ap- 


SPECIAL,    GENERAL   AND    UNIVERSAL.  II 

plication  to  the  facts  of  this  case,  for  no  injury  was  done  the  defend- 
ant's property.^     *     *     * 

Our  conclusion  is  that  Nichols,  when  he  made  the  alteration  of  the 
note,  stood  in  the  relation  to  it  of  a  stranger,  and  that  his  act  was  a 
mere  spoliation. 

Judges  Davis  and  Gavin  dissented. 

Judgment  reversed  at  the  cost  of  the  appellees.- 


Section  3. — Special,  General  and  Universal  Agents. 
WOOD  V.  McCAIN. 

1845.     Supreme  Court  of  Alabama.    7  Ala.  800. 

Writ  of  error  to  the  circuit  court  of  Talledega. 

The  defendant  in  error  having  recovered  a  judgment  against  Wil- 
liam Revis  and  Elisha  B.  Stedman,  made  the  affidavit  required  by 
statute,  and  caused  a  garnishment  to  be  issued  and  served  on  sun- 
dry persons  supposed  to  be  debtors  of  Stedman,  among  whom  was 
John  S.  Smith.  This  garnishee  appeared  and  answered  that  he  was 
indebted  to  Stedman  for  professional  services  as  a  physician,  ren- 
dered in  1840,  to  the  amount,  as  he  understood,  of  ninety-six  dollars, 
which  was  due  on  the  first  of  January,  1841.  Some  few  days  pre- 
vious to  the  service  of  the  garnishment,  the  garnishee  was  informed 
by  Mathew  Wood,  that  he  need  not  consider  himself  Stedman's 
debtor  any  longer,  that  the  books  or  accounts  of  the  latter  had  been 
transferred  to  him.  Wood  produced  no  written  transfer,  and  the 
garnishee  made  no  promise  of  payment. 

In  conformity  to  law,  a  notice  was  issued,  requiring  Wood  to  ap- 

^  A  portion  of  the  opinion  is  omitted. 

^  "The  first  sort  of  servants,  therefore,  acknowledged  by  the  laws  of  Eng- 
land, are  memal  servants;  so  called  from  being  intra  moenia,  or  domes- 
tics.    *    *    * 

"Another  species  of  servants  are  called  apprentices  (from  apprendre,  to 
learn),  and  are  usually  bound  for  a  term  of  years,  by  deed  indented  or  inden- 
tures, to  serve  their  masters,  and  be  maintained  and  instructed  by  them.  *  *  * 

"A  third  species  of  servants  are  labourers,  who  are  only  hired  by  the  day 
or  the  week,  and  do  not  live  intra  moenia,  as  part  of  the  family.    *    *    * 

"There  is  yet  a  fourth  species  of  servants,  if  they  may  be  so  called,  being 
rather  in  a  superior,  a  ministerial,  capacity;  such  as  stezvards,  factors,  and 
bailiffs."  I  Bl.  Com.,  Chap.  XIV,  425,  426,  427.  See  also  i  Bl.  Com.  (Ham- 
mond's edition)   7i9n. 

See  further,  on  the  distinction  between  agent  and  servant,  Holland's  Juris- 
prudence (9th  ed.)  115;  2  Kent  Com.  (12th  ed.)  260,  note  i;  article,  "Respon- 
sibility for  Tortious  Acts,"  by  John  H.  Wigmore,  7  Harv.  Law  Rev.  3S3,  393n. 

Regarding  the  origin  of  this  maxim,  see  I  Bl.  Com.  (Hammond's  edition) 
720,  728,  730. 


12  NATURE   AND    KINDS. 

pear  and  contest  with  the  plaintiff,  the  right  to  the  money  owing  by 
the  garnishee.  Wood  appeared,  and  an  issue  was  made  up  and  sub- 
mitted to  a  jury  for  the  trial  of  that  question,  who  returned  a  ver- 
dict for  the  plaintiff,  and  judgment  was  rendered  accordingly.  From 
a  bill  of  exceptions  sealed  at  the  trial  of  the  facts  of  the  case,  and  the 
ruling  of  the  court  thereupon,  may  be  thus  briefly  stated,  viz. :  some 
time  before  the  garnishment  issued,  Stedman  left  the  state  on  a  visit, 
having  first  made  Revis  his  agent  by  mere  verbal  appointment,  with  a 
general  authority  to  transact  all  business  for  him  in  this  state;  he 
left  with  his  agent  his  books  and  accounts  for  medical  services  (in- 
cluding the  account  of  the  garnishee)  for  settlement.  Wood  was  in- 
formed that  the  plaintiff'  intended  to  garnishee  the  debtors  of  Sted- 
man, and  being  a  surety  of  the  latter  in  a  promissory  note  for  one 
thousand  dollars,  discounted  by  the  State  Bank,  immediately  applied 
to  Revis  for  indemnity  against  the  consequences  of  his  suretyship. 
Accordingly,  on  the  26th  January,  1841,  Revis  executed  a  deed 
in  Stedman's  name,  transferring  the  books  and  accounts  of  his  prin- 
cipal to  Wood,  and  then  delivered  the  same  to  the  assignee,  who 
forthwith  notified  the  garnishee  of  the  fact  and  instructed  him  to  pay 
what  he  owed  to  him  (assignee),  or  his  order. 

The  deed  of  assignment  was  rejected  as  evidence,  because  there 
was  no  written  authority  to  execute  it.  About  March,  1841,  Sted- 
man returned  to  the  state,  and  on  being  informed  of  the  transfer 
and  delivery  of  the  books  and  accounts  to  Wood,  forthwith  ratified 
the  same. 

The  court  charged  the  jury  that  it  was  not  competent  for  Revis  to 
make  the  transfer  of  the  books  and  accounts,  as  he  had  done,  and 
that  the  ratification  did  not  legalize  it. 

Collier,  C.  J. — The  precise  language  employed  in  the  bill  of  ex- 
ceptions, is  this :  "Stedman  visited  North  Carolina  and  left  William 
A.  Revis,  his  general  agent,  or  agent  generally  (said  Revis  having  no 
written  authority),  to  transact  his  business  in  this  state;  that  he  de- 
livered up  his  books  and  accounts  for  medical  services  to  said  agent 
(including  the  account  against  garnishee)  for  settlement,  and  that 
said  agency  was  advertised  and  generallv  known  in  the  neighbor- 
hood." 

It  is  supposed  by  the  counsel  for  the  plaintiff  in  error  that,  as  Revis 
was  the  general  agent  of  his  principal,  it  must  be  presumed  he  was 
authorized  to  make  the  assignment  in  question.  This  conclusion 
is  by  no  means  a  necessary  sequence  from  the  premises.  General  are 
clearly  distinguishable  from  universal  agents,  that  is,  from  such  as 
may  be  appointed  to  do  all  acts  which  the  principal  can  personally 
do,  and  which  he  may  lawfully  delegate  the  power  to  another  to  do. 
"Such  a  universal  agency  may  potentially  exist ;  but  it  must  be  of 
the  very  rarest  occurrence.  And,  indeed,  it  is  difficult,"  says  Mr.  Jus- 
tice Story,  "to  conceive  of  the  existence  of  such  an  agency,  inasmuch 
as  it  would  be  to  make  such  an  agent  the  complete  master,  not  merely 


dux  facti,  bu:  the  complete  disposer  of  all  the  rights 

ic^pai.      Such  an  unusual  authority  will  neve'r 
general  expressions,  however  broad,  but  the 
iicm  to  the  ]  the  party,  in  re- 

is  presumed.  :,:e  '!n  .^iilhority 

rected.  Thus,  it  a  merchant,  m  V  po- 

Id  delegate  to  anagent  his  full  an«.  _.  i.. ,  a.;.,  ^.rity 
•  •  d  property,  to  buy  any  property  for  him,  or  on  his 

niake  any  • "  '         '      '  '  '        ' 

it  could  do  ■ 

ited  to  buying-  o  arv 

merchant ;  and,  \  Ion. 

construed  to  apply  to  a  sale  <  -.ehoia  furniture, 

the  utensils,  provisions  and  ...  -;-•,,;:<-.  -cwl  li^ 

lory  on  Agency,  20,  21. 

nee  betvreen  a  general  and  speciiu  r.-^i.i  :.-   -a^a  il>  ije 
iner  is  appointed  to  act  in  the  affairs  of  his  principal 
1  the  latter  to  act  concerning  some  particular  object, 
r  case,  the  principal  will  be  found  by  the  acts  of  his 
,  the  scope  of  the  general  authority  conferred  on  him, 
.e  acts  are  viol'^r.vt-  of  hU  nrivate  instructions  and  direc- 
1  the  latter  case,                         exceeds  the  special  authority 
'  •!  him,  the  priu.,,  .a  ;-.  .^.i.  bound  by  his  acts.    Story  on 
:  Paley  on  Agency,  too:  Munn  v.  Commission  Co.,  15 
,  54  (8  Am.  Dec.  2\          '      -  laid  do         '         a  agent  em- 
buy  has  no  author!               :!,  and  a                ..     Story  on 
^2.    So  an  agency  ior  the  j^urpose  of  accepting  or  in- 
.  or  notes,  does  not  authorize  the  ageni  f' •  Tvirchase  or 
■  for  his  principal.  Id.  84,  And  an  author:                ..  a  bond 
m  itself  embrace  -'^  ■  - ■•"  '-    ■    .-:••-■'-    -'-  «         ■  *i 


-8.    Nor  has  ari 
r,  ordin;!    ' 
when  i* 


ise  ciiin  money. 


for  tlie 
^.ve  notes 
;.ts  of  Strang  l  of  the  principal 

.   .  lor  g(X)ds  w.,  ■  him  and  which 

ne  to  his  use.    Odic  ■  s.  181;  Wallace 

i.  Bank  at  Mobile,  i  ,\in.  51  ct  v.  R' 

;4  (24  Am.  Dec.  62),  it  was  :  'wer  of  . 

debts,  to  execute  deeds  of  lands.  iplish  a 

at  of -all  the  concerns  of  the  zv  .     in  a  p 

I  to  do  all  other  acts  which  the  constituent  could  d 
" ^*  authorize  the  giving  of  a  note  by  the  -ii^.-' 
rincipal.    Further,  that  the  general  w 
*  -ence  to  the  matter  specially  mr     ' 
•  a  complete  adjustment,  etc., 


:\vinef  b\' 


V.    Froi! 

v,  and  thr 

^1, 

viz. :  somt 

;  p 

nn     ;■)    l-!<l"f 

s  of  his  prin 


ecause  there 
,  1 841,  Sled- 


.'A  done,  and 
le  bill  of  ex- 


uevis 

1  he  wa' 

•  'Hclusio!) 

iieral  ar' 

'orn  such  a- 

rui  personally 

.nother  to  do 

>  must  be  or 

>ays  Mr.  Jus 

V    inasmucl' 

r-t  merel-. 


SPECIAL,    GENERAL   AND    UNIVERSAL.  I3 

dux  facti,  but  dominiis  rcriim,  the  complete  disposer  of  all  the  rights 
and  property  of  the  principal."  Such  an  unusual  authority  vnW  never 
be  inferred  from  any  general  expressions,  however  broad,  but  the 
law  will  restrain  them  to  the  particular  business  of  the  party,  in  re- 
spect to  which,  it  is  presumed,  his  intention  to  delegate  the  authority 
was  principally  directed.  Thus,  if  a  merchant,  in  view  of  his  tempo- 
rary absence,  should  delegate  to  an  agent  his  full  and  entire  authority 
to  sell  his  personal  property,  to  buy  any  property  for  him,  or  on  his 
account,  or  to  make  any  contracts,  or  to  do  any  other  acts  whatso- 
ever which  he  could  do  if  personally  present — these  general  terms 
would  be  limited  to  buying  or  selUng,  connected  with  his  ordinary 
business  as  a  merchant ;  and,  without  some  more  specific  designation, 
would  not  be  construed  to  apply  to  a  sale  of  his  household  furniture, 
or  library,  or  the  utensils,  provisions  and  other  necessaries  used  in 
his  family.    Story  on  Agency,  20,  21. 

The  difference  between  a  general  and  special  agent  is  said  to  be 
this :  The  former  is  appointed  to  act  in  the  affairs  of  his  principal 
generally,  and  the  latter  to  act  concerning  some  particular  object. 
In  the  former  case,  the  principal  will  be  found  by  the  acts  of  his 
agent,  within  the  scope  of  the  general  authority  conferred  on  him, 
although  those  acts  are  violative  of  his  private  instructions  and  direc- 
tions. In  the  latter  case,  if  the  agent  exceeds  the  special  authority 
conferred  on  him,  the  principal  is  not  bound  by  his  acts.  Story  on 
A-gency,  114;  Paley  on  Agency,  199;  Munn  v.  Commission  Co.,  15 
Johns.  44,  54  (8  Am.  Dec.  219).  It  is  laid  down  that  an  agent  em- 
ployed to  buy  has  no  authority  to  sell,  and  vice  versa.  Story  on 
Agency,  81,  82.  So  an  agency  for  the  purpose  of  accepting  or  in- 
dorsing bills,  or  notes,  does  not  authorize  the  agent  to  purchase  or 
sell  goods  for  his  principal.  Id.  84.  And  an  authority  to  take  a  bond 
does  not  in  itself  embrace  the  power  to  receive  the  money  due  there- 
on. Id.  88.  Nor  has  an  agent,  for  the  purpose  of  receiving  a  debt, 
the  power,  ordinarily,  to  receive  it  in  anything  else  than  money,  and 
then  only  when  it  is  matured.   Id.  88,  89. 

Where  one  is  authorized  generally  to  sign  promissory  notes  for  the 
debts  of  the  principal,  the  authority  cannot  be  implied  to  give  notes 
to  pay  the  debts  of  strangers,  or  to  pledge  the  credit  of  the  principal 
as  a  surety,  for  goods  which  were  not  bought  for  him  and  which 
never  came  to  his  use.  Odiorne  v.  Maxey,  13  Mass.  181  ;  Wallace 
V.  Branch  Bank  at  Mobile,  i  Ala.  565.  In  Rossiter  v.  Rossiter,  8 
Wend.  494  (24  Am.  Dec.  62),  it  was  held  that  a  power  of  attorney, 
to  collect  debts,  to  execute  deeds  of  lands,  to  accomplish  a  complete 
adjustment  of  all  the  concerns  of  the  constituent  in  a  particular 
place,  and  to  do  all  other  acts  which  the  constituent  could  do  in  per- 
son, does  not  authorize  the  giving  of  a  note  by  the  attorney  in  the 
name  of  the  principal.  Further,  that  the  general  words  must  be  con- 
strued with  reference  to  the  matter  specially  mentioned,  and  that  the 
authority  to  make  a  complete  adjustment,  etc.,  did  not  authorize  the 


14  NATURE   AND    KINDS. 

giving  of  a  note  on  the  purchase  of  property.  So  it  has  been  ad- 
judged that  a  power  of  attorney  "to  ask,  demand,  sue  for,  recover 
and  receive  all  such  sum  or  sums  of  money,  debts,  dues,  accounts, 
and  other  demands  whatsoever,  which  are,  or  shall  be  due,  owing, 
payable,  and  belonging  to  us,  or  detained  from  us  in  any  manner  or 
ways  or  means  whatsoever,  etc.,"  does  not  authorize  the  attorney  to 
compound  for,  receive  and  release  a  sum  of  money  which  is  not  due 
and  payable.   Hefferman  v.  Adams,  7  Watts  716. 

In  the  case  at  bar,  the  general  words  are,  "to  transact  his  (the 
principal's)  business  in  this  state ;"  but  as  it  respects  the  books  and 
accounts  for  medical  services  rendered  by  Stedman,  these  words  are 
restricted  by  declaring  that  they  were  delivered  to  the  agent  "for 
settlement."  By  this  we  are  to  understand  that  Revis  was  to  collect, 
or,  it  may  be,  otherwise  settle  these  demands  with  the  persons  from 
whom  they  were  due.  It  would  require  a  most  unwarrantable  ex- 
tension of  terms  to  hold  that  they  conferred  the  power  upon  the 
agent  to  assign  the  books  and  accounts  to  a  surety  of  his  constituent 
for  his  indemnity.  The  citations  we  have  made  upon  this  point  are 
pertinent,  and  most  satisfactorily  show  that  the  assignment  in  ques- 
tion was  not  authorized  by  the  power  previously  given. ^  *  *  * 
Without  adding  more,  the  result  is  that  the  judgment  must  be  af- 
firmed.^ 

^  A  portion  of  the  opinion  is  omitted. 

"For  further  cases  treating  of  special  and  general  agents,  see  Chap.  V,  §  i. 

"Authorities  by  letters  of  attorney  are  either  general  or  special;  thus  a  letter 
of  attorney  may  be  to  sue  in  omnibus  cattsis  niotis  et  movendis,  or  to  defend  a 
particular  suit."    Holt,  C.  J.,  in  Parker  v.  Kett,  i  Salk.  95,  96. 


CHAPTER  IT. 


Section  1. — Who  can  De  Priiiup' 


FCr  HO  AG 

I'S^ri,     :m  ip::  ;ii  Court  of  Judicature  c 
15  Wenr; 

atg^omery  conunoii  pleas.     Maria  Van  Home,  an 

r  friend,  brought  an  action  of  replevin  against 

1  and  I  '■■  the  taking  of  two  cows  and  a  calf.    A.  Van 

^j    li.e,  the  fauu, ;  .-i  the  plaintiff,  testified  that  with  the  plaintiff's 

consent  he  had  sold  a  cow  belonging  to  her  and  with  the  proceeds 

'"■   for  her  another  cow,  which  was  one  of  the  cows  de- 

the  fk:''! 'r:'.t!on.     The  trial  court  in  "chprginGf  the  jury  left 

'ler  A.  '  Ue  agent  of 

■its  excc^ 

,^^  j  1  *     =.-■     -i^     "Yi^Q  Qpjy  clifticulty  in  the  case  is 

e  cow  which  Van  Home  purchased  of  Easterbrooi  >  ...... 

r.c  plaintiff  in  the  place  of  the  one  he  had  previously  sold. 


'  :d  as  a  gift  >.• 

rt  of  tht   '  ■'         '         as 

tirne,  the  dn 

TTjirc^rl  11                         ••<^^'=-\ 

la ;  aiiu  ii  it  was  a  sale  ■ 

t'n'ma  facie  fraudulent  •■. 

•he   possession   of   tlic 

proj-eny.     Jr  was  important. 

the  plaintiff  to  connect  this  transaction  with  her  title 
t  was  given  to  her  by  Gross.    The  court  charg-ed  the 
^'     ne  merely  carried  ir,'        "'     '  the  will  of  his 
of  one  row  and  pro>  her  another  as 

iff  was 
n^  the  (, 
■  jury,  as  matter  of  law,  that  the  piainiiir,  th' 
.1.-.  .litr.*.-  hi-r  father  an  agent  f'^f  '''^   '"-ale  of  h 
this  particular  y     The 

,.S'^t  for  the    -■'    - 

"  '"  -•"'"tted. 


and 


it  be  af- 


CHAPTER  II. 

COMPETENCY   OF    PARTIES, 

Section  1. — Who  can  be  Principal. 


FONDA  AND  HOAG  v.  VAN  HORNE. 

1836.     Supreme  Court  of  Judicature  of  New  York. 
15  Wend.  (N.  Y.)  631. 

Error  from  Alontgomery  common  pleas.  Maria  Van  Home,  an 
infant,  by  her  next  friend,  brought  an  action  of  replevin  against 
Fonda  and  Hoag  for  the  taking  of  two  cows  and  a  calf.  A.  Van 
Home,  the  father  of  the  plaintiff,  testified  that  with  the  plaintiff's 
consent  he  had  sold  a  cow  belonging  to  her  and  with  the  proceeds 
purchased  for  her  another  cow,  which  was  one  of  the  cows  de- 
scribed in  the  declaration.  The  trial  court  in  charging  the  jury  left 
to  theiTL  the  question  whether  A.  Van  Home  acted  as  the  agent  of 
the  plaintiff.    The  defendants  excepted  to  the  charge. 

Bronson,  J.^  *  *  *  f  he  only  difficulty  in  the  case  is  in  rela- 
tion to  the  cow  which  Van  Home  purchased  of  Easterbrooks  and 
gave  to  the  plaintiff'  in  the  place  of  the  one  he  had  previously  sold. 
If  this  must  be  regarded  as  a  gift  on  the  part  of  the  father,  then,  as 
he  was  insolvent  at  the  time,  the  daughter  acquired  no  title  as  against 
his  creditors ;  and  if  it  was  a  sale  instead  of  a  gift  by  the  father,  it 
would  be  prima  facie  fraudulent  as  against  creditors,  because  he 
still  retained  the  possession  of  the  property.  It  was  important, 
therefore,  for  the  plaintiff  to  connect  this  transaction  with  her  title 
to  the  cow  that  was  given  to  her  by  Gross.  The  court  charged  the 
jury  that  if  Van  Home  merely  carried  into  effect  the  will  of  his 
daughter  by  disposing  of  one  cow  and  procuring  for  her  another  as 
good,  as  her  agent,  then  the  plaintiff  was  the  real  owner,  and  the 
defendants  were  not  justified  in  taking  the  cow.  This  was,  in  effect, 
instructing  the  jury,  as  matter  of  law,  that  the  plaintiff,  though  an 
infant,  could  constitute  her  father  an  agent  for  the  sale  of  her  prop- 
erty. The  charge  was  in  this  particular  erroneous.  The  plaintiff 
could  not  appoint  an  agent  for  the  sale  of  her  property.     Her  \\all 

^  A  portion  of  the  opinion  is  omitted. 

15 


l6  COMPETENCY   OF    PARTIES. 

or  consent  conferred  no  authority  upon  her  father.  She  might  treat 
him  as  a  wrong-doer  for  making  the  sale,  and  the  purchaser  acquired 
no  title.  Notwithstanding  the  attempted  transfer,  the  cow,  which 
was  the  gift  of  Gross,  still  remained  the  property  of  the  plaintiff, 
and  she  might  assert  her  right  to  the  property  in  the  same  manner 
as  though  it  had  been  wrongfully  taken  by  a  stranger. 

What  acts  of  an  infant  are  void,  and  what  are  voidable  only  is  a 
question  which  has  been  very  much  discussed  in  the  books ;  and 
several  attempts  have  been  made  to  lay  down  some  general  rule 
which  should  be  applicable  to  all  cases ;  but  with  no  great  success. 
In  Keane  v.  Boycott,  2  H.  Bl.  511,  Ld.  Ch.  J.  Eyre  laid  down  the 
doctrine  that  where  the  court  could  pronounce  the  contract  for  the 
benefit  of  the  infant,  as  for  necessaries  it  was  good ;  where  the 
court  could  pronounce  it  to  be  to  the  prejudice  of  the  infant  it 
was  void;  and  in  those  cases  where  the  benefit  or  prejudice  was 
uncertain,  the  contract  was  voidable  only.  This  may  answer  well 
enough  as  a  general  rule,  but  it  must  be  subject  to  exceptions. 
It  may  be  for  the  benefit  of  an  infant  to  appoint  an  attorney  or 
agent  to  sell  his  lands,  but  such  an  act  would  be  clearly  void. 
A  conveyance,  by  the  infant  himself,  of  his  lands,  may  be  to  his 
prejudice,  and  vet  under  certain  circumstances  the  conveyance  will 
be  voidable  only ;  and  there  must  be  many  cases  where  the  act 
will  be  void,  although  it  may  be  uncertain  whether  it  will  benefit  or 
prejudice  the  infant.  In  Zouch  v.  Parsons,  3  Burr.  1794,  Ld.  ]\Ians- 
field  sanctioned  the  rule  laid  down  by  Perkins  that  "all  such  gifts, 
grants  or  deeds  made  by  infants,  which  do  not  take  effect  by  delivery 
of  his  land,  are  void ;  but  all  gifts,  grants  or  deeds  made  by  infants, 
by  matter  in  deed  or  in  writing  which  do  take  effect  by  delivery 
of  his  land  are  voidable,  by  himself,  by  his  heirs  and  by  those  who 
have  his  estate."  He  remarked  that  the  words  "which  do  take  ef- 
fect" were  an  essential  part  of  the  definition,  and  excluded  letters  of 
attorney,  or  deeds  which  delegate  a  mere  power  and  convey  no  in- 
terest. A  conveyance  by  lease  and  release  executed  by  the  infant  was 
held  to  he  voidable  only,  and  that  he  could  not  avoid  it  until  he  ar- 
rived at  full  age.  Although  the  case  of  Zouch  v.  Parsons  has  been 
questioned  in  England,  it  w^as  approved  by  this  court  in  Conroe  v. 
Birdsall,  i  Johns.  Cas.  127.  It  was  decided  in  this  case  that  the  bond 
of  an  infant  was  not  void,  but  was  voidable  only.  A  different  rule 
was  laid  down  by  Ld.  Coke,  who  says  that  an  infant  will  not  be  bound 
by  a  penal  obligation,  even  wdiere  it  is  given  for  necessaries.  Co. 
Litt.,  172a;  see,  also,  4  T.  R.  363,  and  Bayhs  v.  Dinley,  3  Maule  & 
S.  477.  In  Swasey  v.  Vanderheyden,  10  Johns.  R.  33,  it  was  held  that 
the  negotiable  note  of  an  infant  given  for  necessaries,  and  where  that 
fact  appeared  upon  the  face  of  the  instrument,  was  void.  Whether 
this  case  and  that  of  Conroe  v.  Birdsall  stand  well  together  need  not 
now  be  considered. 

In  relation  to  personal  chattels,  the  rule  seems  to  be  that  if  an  in- 


tant  give  or  sell  \  and  deliver  ther  nd,  the 

act  is  voidable  or:t\  ,  lui:  li  he  give  or  sell  ^^     'a  •.,  aij    lu  uonee  or 
\endee  take  them  by  force  of  the  gift  or  sale,  the  act  is  void,  and  the 
iifant  m;  trespass,     i  i\Iod.  137;  Bac.  Abr.,  "    '  ■        &  Age, 

I .  pi.  3.  Jnction  was  recognized  in  Roof  v.  7  Cow. 

■■"g.   The  r.,i.iiit  brought  trover  for  a  horse  which  he  iiad  sold  to  the 
'efendiinr,.  ::-\d  the  court  held  tn:';   ;';.     -ale  aas  ^-.ot  absolutely  void, 
a  the  grcinid  that  he  had  ma  the  goods;  and 

■  =  -  ■       :■■■:.  -..-.'■-   that  he  Onn-...  ....-i  a^.-;i.a  .lu.  -.'-  "^^-'^  •"'  '^''me 

.1  was  reversed  in  the  court  i  ion 

■J  Low.  ci'j.  on  ;'  1  .-,-,-■  .  j^^^ 

X  there  had  b'""^'-  .el- 

who  deliver.  :  of 

■  by  the  ven>,  r^e 

It;  but  in  case  of  an  mfant  vendor  there 

personal  delivery.     An  infant  cannot  '^^ 

iitnrent  would  be  void;  and  there  beii  ual 

.  ry,  the  contract  would  seem  to  bt  v  im.      !  • 

nf erred  no  right  upon  the  vendee  to  take.    1 

,  of  the  infant  to  sell  would  not  protect  the  vendee  agaaiit 

I  of  trespass  for  taking  the  horse.     The  taking  would  be 

us.  and  in  itself  a  conversion."     In  the  case  under  considera- 

ne  plaintiff  'did  not  deliver  the  property,  and  the  <■'':'  '^  •  the 

was  wholly  without  authority.     The  infant  cou:  ake 

orney  or  agent  to  do  such  an  act.     The  pur^-^  -^uired 

e,  and  the  plaintiff  may  at  any  time  treat  hini  .-feasor 

he  value  of  the  property.     T  :  d  oii  which  the 

liaced  the  cause  in  their  cha!.,  ■  jury  is  wholly 

;  and  it  is  therefore  unnecessary  to  inquire  whether  there 

her  ground  on  which  the  plr.i'-.iirf  ,;.  n   ^r-,  r<><i  as  to  the 

its  offspring)  purchased  of  he  plaintiff 

ratified  the  s  '- ^  mi  diat  be  done 

remains  an  1  her  title  upon 

'  nt  the  !  :  ■  nt,  had 

ange  oi  ~.  was  a 

■■  act.     But  her  consent  conicrred  no  and  the  father 

-  -t  act  as  her  agent.    She  has  her  rem  'f  rnri'nhirized 

that  transaction  can  have  no  Ic  the 

r  purchase  of  two  cows  from  Ert-<>.  iuiwi.k>.     ;i   .-.m.:  ac- 
\  right  to  one  of  those  animals,  it  must  be  on  the  ground 
'  a  sale  '     '       '      the  father ;  and  before 
■  y  of  the:  L  be  passed  upon  by  a  in 

11  rievei  recover  this  anuiiai  without  making  a  pro'. 
ty  to"  contract.     She  has  an  undoubted  right  of  a/  '1. 

iven  to  her  by  Gross,  and  if  she  may  also  recover  tl 
:hange  by  her  father,    •  •  ■-'■'-  'vv—  ^i.-^ii  ■  o.,f;.-- 
2— Reinhard  Cases. 


e  coAV,    , 
the  plai;,---.. 
same  manner 

able  onK 


.'  ^ucce^^ 
'lown  tli> 
:t  for  tb; 

,,,      beV'^  ill: 

-.\ver  we' 


rveyance  wii 

■'■"-"  the  ac 
'icnefit  c 


deliver 
■lose  wh' 

take  ef 
letters  o 

;"»•  no  iri 


;>ns  has  bee; 


>:    ■.i!r;t:vvii   rui 
will  not  he  bonn 


Whethc 


PRINCIPAL.  17 

fant  give  or  sell  his  goods  and  deliver  them  with  his  own  hand,  the 
act  is  voidable  only;  but  if  he  give  or  sell  goods,  and  the  donee  or 
vendee  take  them  by  force  of  the  gift  or  sale,  the  act  is  void,  and  the 
infant  may  bring  trespass,  i  JNIod.  137;  Bac.  Abr.,  Infancy  &  Age, 
I,  pi.  3.  This  distinction  was  recognized  in  Roof  v.  Stafford,  7  Cow. 
179.  The  infant  brought  trover  for  a  horse  which  he  had  sold  to  the 
defendant,  and  the  court  held  that  the  sale  was  not  absolutely  void, 
on  the  ground  that  he  had  made  manual  delivery  of  the  goods ;  and 
being  voidable  only,  that  he  could  not  avoid  the  sale  until  he  came 
of  age.  This  judgment  was  reversed  in  the  court  for  the  correction 
of  errors,  9  Cow.  626,  on  the  ground  that  it  did  not  appear  in  point 
of  fact  that  there  had  been  a  manual  delivery  of  the  horse.  Chancel- 
lor Jones,  who  delivered  the  opinion  of  the  court,  said:  "The  fact  of 
possession  by  the  vendee  would  be  evidence  of  a  delivery  in  the  case 
of  an  adult ;  but  in  case  of  an  infant  vendor  there  should  be  strict 
proof  of  personal  delivery.  An  infant  cannot  make  an  attorney. 
The  appointment  w^ould  be  void ;  and  there  being  no  proof  of  actual 
manual  delivery,  the  contract  would  seem  to  be  void.  The  agree- 
ment to  sell  conferred  no  right  upon  the  vendee  to  take.  The  mere 
agreement  of  the  infant  to  sell  would  not  protect  the  vendee  against 
an  action  of  trespass  for  taking  the  horse.  The  taking  would  be 
tortious,  and  in  itself  a  conversion."  In  the  case  under  considera- 
tion the  plaintiff  did  not  deliver  the  property,  and  the  sale  by  the 
father  was  wholly  without  authority.  The  infant  could  not  make 
an  attorney  or  agent  to  do  such  an  act.  The  purchaser  acquired 
no  title,  and  the  plaintiff  may  at  any  time  treat  him  as  a  tort-feasor 
and  recover  the  value  of  the  property.  The  ground  on  which  the 
court  below  placed  the  cause  in  their  charge  to  the  jury  is  wholly 
untenable ;  and  it  is  therefore  unnecessary  to  inquire  whether  there 
be  any  other  ground  on  which  the  plaintiff  can  succeed  as  to  the 
cow  (and  its  offspring)  purchased  of  Easterbrooks.  The  plaintiff 
has  never  ratified  the  sale  made  by  her  father,  nor  can  that  be  done 
while  she  remains  an  infant.  The  court  below  placed  her  title  upon 
the  ground  that  the  father,  with  her  consent  and  as  her  agent,  had 
made  an  exchange  of  one  animal  for  another,  and  that  this  w'as  a 
lawful  act.  But  her  consent  conferred  no  authority,  and  the  father 
could  not  act  as  her  agent.  She  has  her  remedy  for  the  unauthorized 
sale ;  and  that  transaction  can  have  no  legal  connection  wdth  the 
subsequent  purchase  of  two  cows  from  Easterbrooks.  If  she  ac- 
quired any  right  to  one  of  those  animals,  it  must  be  on  the  ground 
either  of  a  gift  or  a  sale  to  her  by  the  father ;  and  before  she  can 
recover,  the  validity  of  that  act  must  be  passed  upon  by  a  jury.  But 
she  can  never  recover  this  animal  without  making  a  profit  by  her  in- 
capacity to  contract.  She  has  an  undoubted  right  of  action  for  the 
cow  given  to  her  by  Gross,  and  if  she  may  also  recover  the  one  given 
in  exchange  by  her  father,  she  may  have  double  satisfaction,  when 
2 — Reinhard  Cases. 


COMPETENCY   OF   PARTIES. 


in  law  there  has  been  but  one  injury.    It  is,  however,  enough  for  the 
present  that  the  court  below  erred  in  its  charge  to  the  jury.^ 
Judgment  reversed. 


WHITNEY  V.  DUTCH. 
1817.     Supreme  Court  of  Massachusetts.     14  Mass.  457. 

Assumpsit  on  a  promissory  note  made  by  the  defendants  to  the 
plaintiffs.  The  defendant,  Dutch,  was  defaulted.  Green,  among 
other  things,  pleaded  the  defense  of  infancy,  to  which  plaintiffs  re- 
plied a  ratification. 

Dutch  and  Green,  as  the  evidence  disclosed,  were  partners.  The 
note  in  suit  was  signed  by  Dutch,  using  the  firm  name  and  style  of 
the  firm  of  Dutch  and  Green. 

It  was  contended  at  the  trial  and  in  the  supreme  court  that  Green 
never  legally  executed  the  note,  it  being  void  as  to  him.  Dutch 
signed  it  for  himself  and  for  Green,  but  it  was  not  in  the  power  of 
Green  to  confer  such  authority ;  that  an  infant  cannot  bind  himself 
by  appointing  an  attorney,  or  agent,  such  appointment  being  abso- 
lutely void  and  incapable  of  ratification.  The  opinion  of  the  court  was 
delivered  by 

Parker,  C.  J.  (After  disposing  of  another  question.)  But  the 
other  point  made  in  the  defense  is  more  difficult,  and  presents  a 
question  new  to  us  all.  This  is,  that  the  note,  being  signed  by  Dutch 
for  Green,  was  void  in  regard  to  Green ;  because  he  was  not  capable 
of  communicating  authority  to  Dutch  to  contract  for  him ;  and  that, 
being  void,  it  is  not  the  subject  of  a  subsequent  ratification. 

No  such  question  appears  to  have  occurred  in  our  courts,  nor  in 
those  of  England,  or  of  the  neighboring  states.  Partnerships  have 
not  been  uncommon  between  adults  and  infants ;  and  simple  con- 
tracts, signed  by  one  for  both,  undoubtedly  have  often  been  made. 

It  is  unfavorable  to  the  principle  contended  for  by  the  counsel 
for  Green  that  no  such  case  has  been  found ;  for  this  silence  of  the 
books  authorizes  a  presumption  that  no  distinction  has  been  recog- 
nized between  acts  of  this  kind  done  by  the  infant  himself  and  those 
done  for  him  by  another.  We  must,  however,  examine  the  principles 
by  which  the  contracts  of  infants  are  governed  and  see  if,  by  any 
analog}^  to  settled  cases,  the  present  defense  can  be  maintained. 

It  is  admitted,  generally,  that  a  contract  made  by  an  infant,  al- 
though not  for  necessaries,  is  only  voidable ;  and  that  an  express 
adoption  of  it,  after  he  comes  of  age,  will  make  it  valid  from  its  date. 

■Accord:  Doe  v.  Roberts,  16  M.  &  W.  778;  Trueblood  v.  Trueblood,  8  Ind. 
195;  Ware  v.  Cartledge,  24  Ala.  622. 

In  Zouch  V.  Parsons,  3  Burr.  1794,  Lord  Mansfield  said  that  an  infant's 
power  of  attorney  was  void.    See  also  Knox  v.  Flack,  22  Pa.  St.  337. 


Vor  does  the  h\v  require  that  he  sh 
■s  lite  3'' 

it  is  'irp 
Oil  are  :  Jie 

r?Ov.-cr  :  iiim, 

delega- 


void,  unless  it 

nis  title  to  n 


J.K  •  .        1, 


-  i 

iipt^vefn  void  aiul  vn 


in  the  case.ot  /_.nnch  -  m, 

whenever  the  act  :'      ■    .  ...lant, 

ot  be  considered  election^ 


>1iratton  of  this  •'")n-  :e  frf^rr?  ■'^if- 


■lefit  or  to  his  p' 

■    ■"     '   "  ■'?•    of   gOOd^.,    ...u:      '^    vv   . 

iC  came  of  aee.  had  : 


)d  by  r.  They  ,'al  sutx- 

•••■-  -^-  ■■'-  '    '-  ....  .and  it 

.1  capacity  k- 


Mass.  457- 
iidants  to  th' 


;ourt  w: 
But  111 


PRINCIPAL.  19 

Nor  does  the  law  require  that  he  shall  be  sued,  as  upon  the  new 
promise ;  but  sives  life  and  validity  to  the  old  one,  after  it  is  thus 
assented  to.  But  it  is  urged  that  this  doctrine  applies  only  to  those 
contracts  which  are  made  by  the  infant  personally ;  and  that  the 
delegation  of  power  by  him  to  another  of  full  age,  to  act  for  him, 
is  utterly  void ;  and  that  no  contract,  made  in  virtue  of  such  delega- 
tion, can  subsist,  so  as  to  be  made  good  by  subsequent  agreement  or 
ratification. 

If  we  confine  ourselves  to  the  letter  of  the  authorities,  it  would 
seem  that  this  doctrine  is  correct ;  for  we  find  that,  in  the  distinctions 
made  in  the  books  between  the  void  and  voidable  acts  of  an  infant, 
a  power  of  attorney  is  generally  selected,  by  way  of  example,  as  an 
act  absolutely  void,  unless  it  be  made  to  enable  the  attorney  to  do 
some  act  for  the  benefit  of  the  infant,  such  as  a  power  of  attorney  to 
receive  seisin,  in  order  to  complete  his  title  to  an  estate. 

The  books  are  not  very  clear  upon  this  subject.  All  of  them  admit 
a  distinction  between  void  and  voidable  acts ;  and  yet  disagree  with 
respect  to  the  acts  to  be  classed  under  either  of  those  heads.  One 
result,  however,  in  which  they  all  appear  to  agree  is  stated  by  Lord 
Mansfield  in  the  case  of  Zouch  v.  Parsons,  cited  in  the  argument, 
viz.,  that  whenever  the  act  done  may  be  for  the  benefit  of  the  infant, 
it  shall  not  be  considered  void ;  but  that  he  shall  have  his  election, 
when  he  comes  of  age,  to  affirm  or  avoid  it ;  and  this  is  the  only 
clear  and  definite  proposition  which  can  be  extracted  from  the  au- 
thorities. 

The  application  of  this  principle  is  not,  however,  free  from  dif- 
ficulty ;  for,  when  a  note  or  other  simple  contract  is  made  by  an  in- 
fant himself,  it  may  be  made  good  by  his  assent,  without  any  inquiry 
whether  it  was  for  his  benefit  or  to  his  prejudice.  For,  if  he  had 
made  a  bad  bargain  in  a  purchase  of  goods,  and  given  his  promis- 
sory note  for  the  price,  and,  when  he  came  of  age,  had  agreed  to  pay 
the  note,  he  would  be  bound  by  this  agreement,  although  he  might 
have  been  ruined  by  the  purchase.  Perhaps  it  may  be  assumed,  as 
a  principle,  that  all  simple  contracts  by  infants  Avhich  are  not  founded 
on  an  illegal  consideration  are  strictly  not  void,  but  only  voidable, 
and  may  be  made  good  by  ratification.  They  remain  a  legal  sub- 
stratum for  a  future  assent,  until  avoided  by  the  infant ;  and  if, 
instead  of  avoiding,  he  confirm  them,  when  he  has  a  legal  capacity  to 
make  a  contract,  they  are  in  all  respects  like  contracts  made  by 
adults. 

With  respect  to  contracts  under  seal  also,  they  are  in  legal  force 
as  contracts  until  they  are  avoided  by  plea.  Whether  they  can,  in 
all  cases,  as  it  is  clear  they  can  in  some,  such  as  leases,  be  ratified,  so 
as  to  prevent  the  operation  of  a  plea  of  infancy,  except  by  deed,  need 
not  now  be  decided.  A  deed  of  land  by  an  infant  having  the  title 
would  undoubtedly  convey  a  seisin ;  and  the  grantee  would  hold  his 


20  COMPETENCY   OF    PARTIES. 

title  under  it,  until  the  infant,  or  some  one  under  him,  should  by  entry 
or  action  avoid  it. 

Perhaps  it  cannot  be  contended,  against  the  current  of  authorities, 
that  an  act  done  by  another  for  an  infant,  which  act  must  necessarily 
be  done  by  letter  of  attorney  under  seal,  is  not  absolutely  void ;  al- 
though no  satisfactory  reason  can  be  assigned  for  such  a  position. 
But  as  this  is  a  point  of  strict  law,  somewhat  incongruous  with  the 
general  rules  affecting  the  contracts  of  infants,  it  is  not  necessary 
nor  reasonable  to  draw  inferences  which  may  be  repugnant  to  the 
principles  of  justice,  which  ought  to  regulate  contracts  between  man 
and  man. 

The  object  of  the  law  in  disabling  infants  from  binding  them- 
selves is  to  prevent  their  being  imposed  upon  and  injured  by  the 
crafty  and  designing.  This  object  is  in  no  degree  frustrated  by  giv- 
ing full  operation  to  their  contracts  if,  after  having  revised  them  at 
mature  age,  they  shall  voluntarily  and  deliberately  ratify  and  con- 
firm them.  It  is  enough  that  they  may  shake  off  promises,  and  other 
contracts,  made  upon  valuable  consideration,  if  they  see  fit  to  do  it, 
when  called  upon  to  perform  them.  To  give  them  still  another  op- 
portunity to  retract,  after  they  have  been  induced,  by  love  of  justice 
and  a  sense  of  reputation,  to  make  valid  what  was  before  defective, 
will  be  to  invite  them  to  break  their  word  and  violate  their  engage- 
ments. 

If  it  be  true  that  all  simple  contracts  made  by  infants  are  only 
voidable,  the  inquiry  in  this  case  should  be,  whether  the  facts  stated 
furnish  an  exception  to  this  general  rule ;  or  whether  the  contract 
now  sued  is  in  any  sense  different  from  a  simple  contract. 

The  only  ground  for  the  supposed  exception  is,  that  the  note 
declared  on  was  not  signed  by  the  infant  himself,  but  by  Dutch, 
claiming  authority  to  sign  his  name  as  a  copartner.  If  the  authority 
required  a  letter  of  attorney  under  seal,  the  exception  would  be  sup- 
ported by  the  authorities  which  have  been  alluded  to. 

But  it  is  well  known  that  copartners  may,  and  generally  do,  under- 
take to  bind  each  other,  without  any  express  authority  whatever. 
Indeed,  the  authority  to  do  so  results  from  the  nature  and  legal 
qualities  of  copartnership.  And  without  any  such  union  of  interests, 
one  man  may  have  authority  to  bind  another  by  note  or  bill  of  ex- 
change, by  oral,  or  even  by  implied  authority.  The  case  of  a  deed, 
therefore,  is  entirely  out  of  the  question ;  so  that  the  defendant  does 
not  bring  himself  within  the  letter  of  the  authorities,  and  certainly 
not  within  the  reason  on  which  they  are  founded.  Then,  upon  prin- 
ciple, what  dift'erence  can  there  be  between  the  ratification  of  a  con- 
tract made  by  the  infant  himself  and  one  made  by  another  acting 
under  a  parol  authority  from  him?  And  why  may  not  the  ratifica- 
tion apply  to  the  authority  as  well  as  to  the  contract  made  under  it  ? 

It  may  be  said  that  minors  may  be  exposed,  if  they  may  delegate 
power  over  their  property  or  credit  to  another.     But  they  will  be  as 


PRINCIPAL. 


iiower  to  make  such  contracts  themselves,  and 


ated  will  generally  h 
. .  And  it  is  a  sufficien. 
Ltiest:  sources  that  infants  cannot  \k 
•!ic  'n  neither  case  b^^f'i'ir.  i.r-  -. 
v-oluntarily  v 
..•  .1.!.;..    . >.iid  in  such  CciD.  j.,-!.- 
pelled  to  perform  them, 
we  are 
-t  no  Dr  . 


nee 

the 

-.:1  : 

.  . : red 

Ifect  to 


are  op- 


AIOTT  V.  SMITH. 

"REME  Court  of  California.    t6  C?A.  'z^- 

. iie  deeds  purporting  to  be  ..-, ..  .,,  ,._  ,,.,.__, 

:    alleged  power,  were  upon  their  face  mere  nullities.     A 

voman  cannot  invest  another  with  a  power  to  sell  any  in- 

ach  she  may  possess  in  real  estate,  in  the  absence  of  any 

■    effect,  '         "         is  no  such  statute  in  this  state.    To 

a  convi.  a  marriP'l  won-irri.  it  is  essential  that 

her  husband  m  its  ;te,  on  a  private 

:  the  time,  separ.it  e  .  _  Am,  and  without 

.<^,  that  she  executed  t"  ireely,  without  fear  of  him  or 

n,  or  ur;'^    -  -"^"ence  /;  -iu  ;   ui,  and  that  she  does  not  wish 

;  its  exe.  :  his  private  examination — this  determina- 

"  ■"   '  -are  not  matters 

er  onlv  r.vthor- 


nce  iron' 

•e,  carry  ■. ,.  ._•...-  ,., 
V.  Wertheman,  lo  ( 
rson  or  wife  ever  ] 
;e  lands  covered  by  i 

i.ollarhide,  24  Cal-  T95 ; 


The  con- 
.i:.v  <jf  their  own 
Asrain,  it  does  not 


\'ater?,  38  Me.  450. 


plicable  to  that  class 


r  him,  sV 

.thorities. 


Mtaiits,  it  IS  not 
may  be  !"•  ''>"  •' 
ite  cont; 


still  another  op 


•K"^^ 


v.liiicl*d<- 


the  not 

iii  by   P;'^ 
'^c  autti 
I  be  sup 


ics,  arid  certain] . 
rhen,  upon  prin 
ucation  of  a  con- 


?V  will  be  a 


PRINCIPAL.  2i 

much  exposed  by  the  power  to  make  such  contracts  themselves,  and 
more,  for  the  person  delegated  will  generally  have  more  experience 
in  business  than  the  minor.  And  it  is  a  sufficient  security  against  the 
danger  from  both  these  sources  that  infants  cannot  be  prejudiced; 
for  the  contracts  are  in  neither  case  binding,  unless,  when  arrived 
at  legal  competency,  they  voluntarily  and  deliberately  give  effect  to 
the  contract  so  made.  And  in  such  case  justice  requires  that  they 
should  be  compelled  to  perform  them. 

Upon  these  principles,  we  are  satisfied  with  the  verdict  of  the 
jury,  and  are  confident  that  no  principles  of  law  or  justice  are  op- 
posed by  confirming  it. 

Judgment  on  the  verdict.^ 


MOTT  V.  SMITH. 

i860.    Supreme  Court  of  California.    16  Cal.  534. 

Field,  C.  J. — The  deeds  purporting  to  be  executed  by  the  witness, 
under  the  alleged  power,  were  upon  their  face  mere  nullities.  A 
married  woman  cannot  invest  another  wath  a  power  to  sell  any  in- 
terest which  she  may  possess  in  real  estate,  in  the  absence  of  any 
statute  to  that  effect,  and  there  is  no  such  statute  in  this  state.  To 
the  efficacy  of  a  conveyance  by  a  married  woman,  it  is  essential  that 
she  join  with  her  husband  in  its  execution,  and  state,  on  a  private 
examination  at  the  time,  separate  and  apart  from  him,  and  without 
his  hearing,  that  she  executed  the  same  freely,  without  fear  of  him  or 
compulsion,  or  under  influence  from  him,  and  that  she  does  not  wish 
to  retract  its  execution.  This  private  examination — this  determina- 
tion of  the  will  as  to  the  retraction  of  the  execution — are  not  matters 
which  can  be  delegated  to  another.  Besides,  the  power  only  author- 
izes a  sale,  that  is,  a  transfer  for  a  valuable  consideration,  which  was 
evidently  intended  to  be  a  moneyed  consideration.  It  does  not  au- 
thorize a  conveyance  from  motives  of  love  and  affection.  The  con- 
veyances, therefore,  carry  on  their  face  the  evidence  of  their  own 
nullity.  (Dupont  v.  Wertheman,  10  Cal.  355.)  Again,  it  does  not 
appear  that  Patterson  or  wife  ever  possessed  or  claimed  any  in- 
terest in  any  of  the  lands  covered  by  the  grant  to  Gutieras,  or  the 

^Accord:   Hastings  v.  Dollarhide,  24  Cal.  195;  Hardy  v.  Waters,  38  Me.  450. 

"But  this  last-named  case  [Hardy  v.  Waters]  was,  we  think,  correctly  de- 
cided, and  it  stamps  as  inaccurate  and  unsound  all  dicta  or  decisions  (if  such 
there  be)  which  hold  all  acts  done  and  contracts  executed  by  an  infant 
through  the  intervention  of  an  agent  void,  and  on  the  contrary  relegates  the 
appointment  of  agents  (for  certain  purposes  at  least)  by  them  to  the  class  of 
voidable  contracts  to  be  disposed  of  by  the  rules  applicable  to  that  class." 
Barrows,  J.,  in  Towle  v.  Dresser,  73  Me.  252,  257. 

See  discussion  of  Coursolle  v.  Weyerhauser,  69  Minn.  328,  holding  that  an 
infant's  appointment  of  agent  is  voidable,  in  11  Harv.  Law  Rev.  340. 


2.2  COMPETENCY   OF    PARTIES. 

patent  to  Johnson,  or  had  any  such  land  in  contemplation  when  the 
power  was  executed.  The  title  by  which  the  plaintiffs  claim  in  the 
present  action  is  independent  of  any  conveyances  from  them.  If 
they  ever,  in  fact,  possessed  any  interest  in  the  premises,  they  still 
retain  it  against  any  possible  interference  with  their  rights  from 
the  action  of  their  attorney,  as  disclosed  by  the  conveyances  in  ques- 
tion. ^     *     *     * 


KENTON  INSURANCE  COMPANY  v.  McCLELLAN. 
1880.    Supreme  Court  of  Michigan.    43  Mich.  564. 

Assumpsit.   Plaintiff  brings  error. 

Campbell,  J. — Plaintiff  sued  defendant,  who  is  a  married  woman, 
upon  a  promissory  note  made  by  her  and  payable  to  the  order  of 
plaintiff  for  $290.42,  dated  September  4,  1877,  and  payable  at  nine 
months.  She  defends  on  the  ground  that  the  note  was  not  given  on 
such  a  consideration  as  binds  her. 

A  preliminary  objection  that  this  defense  was  waived  by  failure  to 
file  affidavit  under  rule  79  has  no  force.  Defendant  does  not  dispute 
the  execution  of  the  note.  Her  defense  is  want  of  capacity  to  make 
it,  except  on  a  particular  consideration. 

It  has  been  held  tmiformly  by  this  court  that  our  statutes  do  not 
authorize  a  married  woman  to  become  personally  liable  on  an  execu- 
tory promise  except  concerning  her  separate  estate.  A  note  given 
for  any  other  consideration  is  void.  De  Vries  v.  Conklin,  22  Mich. 
255 ;  West  V.  Laraway,  28  Mich.  464 ;  Emery  v.  Lord,  26  Mich. 
431 ;  Ross  V.  Walker,  31  Mich.  120;  Jenne  v.  Marble,  37  Mich.  319; 
Kitchell  v.  Mudgetl,  37  Mich.  81 ;  Carley  v.  Fox,  38  Mich.  387 ;  John- 
son V.  Sutherland,  39  Mich.  579 ;  Russel  v.  People's  Savings  Bank, 
39  Mich.  671 ;  Gants  v.  Toles,  40  Mich.  725. 

It  has  also  been  settled  that  there  is  never  any  presumption  of  va- 
lidity of  such  an  undertaking,  whether  negotiable  or  not,  and  that 
proof  must  always  be  given  of  such  a  consideration  as  will  bind  her. 
We  think  that  the  rule  must  apply  whether  value  received  is  ex- 
pressed or  not,  because  the  power  is  not  general  but  statutory,  and 
cannot  be  extended  beyond  the  constitutional  and  statutory  limits. 
See  Powers  v.  Russel,  26  Mich.  179;  Emery  v.  Lord,  26  Mich.  431 ; 
West  V.  Laraway,  28  Mich.  464;  Johnson  v.  Sutherland,  39  Mich. 

579- 

It  was  held  in  the  latter  case  that  a  hona  Ude  holder  was  no  better 
off  than  any  one  else,  as  against  the  disability  of  coverture.  But,  in- 
asmuch as  plaintiff  here  is  the  original  payee,  it  is  not  a  hona  fide 
holder.    Rickle  v.  Dow,  39  Mich.  91. 

^A  portion  of  the  opinion  is  omitted. 


RINCIPAL. 


^i 


ment  t. 


without  con*  that  this  note  was 

-'■I   August  i. ...  ...    ..  to  use  as  security  for 

Kuenzel,  in  whicli  he  was  a  partner. 

plaintii^'"  "  -  •      — •  '     '-  '  ~  '    '■'   \ 

at  from 

-  jOu's  iian  .:. 


wunian  cannot  give  tu  ii:  r  which  she 

-ess  herself,  and  ciir-.-!  -ny  agents 

i  bnad  her  except  C(  ■<  ns  deal- 

them  must  inquire  ii;  •■  .  ...  ^  |.    >  .^  ,  >.  ■  nt  case 

)  evidence  tending  to  sh')w  that  any  si  s  made, 

it  acted  in  rehan. 

♦^be  facts.    The 

n  and  the  plain ciii  . 
is  no  evidence  of  an 
o  have  been  made  on  the  credit  of  defendant. 
•  .1^  ..M-^•  ,-.!■  -^-.    .^.:w,,,,..,.,.f  .y-u-rA.  i,-w|  glrcadv 

not  ap- 

rii:h.;c  ai  ':n■^  imic,  :r  ii  n  as  iiiride  at  all, 
lat  anv  earlier  harcyain  or  negotiation  was 


inc.  ;jav_ 
■  is  no  p 
i'y  or  ostci;-:.iL>U 
:he  case  was  : '  ■> 

he  court  pri 
dgment  musi  ...  ...... 

!)er  justices  concurre 


■-  of  action  was  made 
^cted  a  verdict  for  defendant. 

I    '1     VI'  "".1    O'lCi  Q 


PORTEl: 


iiie  de- 


i.L,  C.  J. — K 

rense  of  a  su;:  

•and,  involving  her  : 


.  in  the  abstract,  is  whether  :■ 


'licitors, 

"■''  and 
v  as 

'  lavi 


.vaLe  leal  cMace. 

'•r  no  doubt  that  if  propt. .     her  sen.:,: 

her  the  beneficial  owner  of  an  equitah' 

.;  Duer  (N.  Y 


the 

ii  the 

m  them.     If 

;es,  they  still 

rights  from 

nces  in  ques- 


CLELLAN. 


iOi  given  on 

-to 
■\itc 


.i.All. 

"  ivlich.  319; 
a.  387;John- 
ivings  Bank, 


ex- 

and 

-.its. 

........  431; 

:nd,  39  Mich. 

iff  was  no  better 
•re.  Biit,  in- 
:  a  botm  fide 


PRINCIPAL,  23 

The  evidence  showed  without  contradiction  that  this  note  was 
given  by  defendant  to  her  son,  iVugust  Kuenzel,  to  use  as  security  for 
a  debt  of  a  firm  of  Wright  &  Kuenzel,  in  which  he  was  a  partner. 
That  he  gave  it  to  one  Jackson,  plaintiff's  agent,  and  took  back  from 
him  an  assignment  to  defendant  from  plaintiff  of  that  debt,  which 
had  already  been  executed  by  plaintiff  and  was  in  Jackson's  hands. 
Defendant  never  knew  of  this  and  never  authorized  it. 

A  married  woman  cannot  give  to  an  agent  any  power  which  she 
does  not  possess  herself,  and  cannot,  therefore,  appoint  any  agents 
that  could  bind  her  except  concerning  her  property.  Persons  deal- 
ing with  them  must  inquire  into  their  powers.  In  the  present  case 
there  is  no  evidence  tending  to  show  that  any  such  inquiry  was  made, 
or  that  plaintiff  or  its  agent  acted  in  reliance  upon  any  supposed  au- 
thority, or  in  ignorance  of  the  facts.  The  record  is  not  inconsistent 
with  the  possibility  that  Jackson  and  the  plaintiff  made  the  assign- 
ment as  a  mere  sham.  There  is  no  evidence  of  any  bargain  for  an 
assignment  supposed  to  have  been  made  on  the  credit  of  defendant. 
All  that  appears  is  a  delivery  of  an  assignment  which  had  already 
been  executed,  in  exchange  for  defendant's  paper.  It  does  not  ap- 
pear that  the  bargain  was  made  at  this  time,  if  it  was  made  at  all, 
and  there  is  no  pretense  that  any  earlier  bargain  or  negotiation  was 
made  really  or  ostensibly  on  defendant's  behalf. 

When  the  case  was  closed,  therefore,  no  cause  of  action  was  made 
out,  and  the  court  properly  directed  a  verdict  for  defendant. 

The  judgment  must  be  affirmed  with  costs. 

The  other  justices  concurred.^ 


PORTER  V.  HALEY  and  STONE. 
1877.    Supreme  Court  of  Mississippi.     55  ]\Iiss.  66. 

Action  for  services.  The  plaintiff  has  judgment  below.  The  de- 
fendant brings  error. 

SiMRALL,  C.  J. — Haley  &  Stone  rendered  the  services  as  solicitors, 
in  the  defense  of  a  suit  in  chancery,  brought  against  Mrs.  Porter  and 
her  husband,  involving  her  right  to  real  estate  claimed  by  her  as 
separate  property. 

So  that  the  question,  in  the  abstract,  is  whether  a  married  woman 
(who  owns  a  separate  estate,  as  is  agreed)  can  contract  to  pay  a  so- 
licitor compensation  for  the  defense  of  a  suit  brought  to  affect  her 
rights  to  separate  real  estate. 

There  can  be  no  doubt  that  if  property  is  settled  to  her  separate 
use,  so  as  to  constitute  her  the  beneficial  owner  of  an  equitable  estate, 

^  See  Phillips  v.  Burr,  4  Duer  (N.  Y.)   113. 


24  COMPETENCY   OF    PARTIES. 

she  could  charge  that  estate  with  such  HabiHty,  enforceable  against  it 
in  a  court  of  equity.  But  it  is  argued  that  the  property  attempted 
to  be  subjected  in  this  suit  was  a  statutory,  legal  estate,  and  that  the 
power  of  Mrs.  Porter  over  it,  and  her  capacity  to  bind  it,  was  gov- 
erned altogether  by  the  statute — that  we  must  look  alone  to  it  for 
her  authority  to  make  the  contract.  The  premise  is  undoubtedly  cor- 
rect. 

The  statute,  section  1778,  of  the  Code  of  1871,  continues  to  a 
woman,  after  marriage,  every  species  and  description  of  property 
owned  at  the  time  of  the  marriage,  as  her  separate  estate.  So,  also, 
acquisitions  after  marriage,  including  the  fruits  of  her  personal 
service.  And  money  recovered  for  damages  to  her  person  shall  con- 
stitute personal  estate.  By  section  1779,  the  rents,  issues  and  income 
of  the  separate  estate  shall  accrue  and  inure  to  the  wife,  and  shall  not 
be  taken  for  the  husband's  debts.  Section  1780  allows  the  wife  to 
rent  her  land,  make  contracts  for  the  use  thereof,  loan  her  money, 
take  securities  therefor  in  her  own  name,  and  employ  it  in  trade  or 
business. 

It  would  be  vain  and  nugatory  to  confer  these  large  property  in- 
terests and  rights  on  married  women,  and  deny  them  free  access  to 
the  courts  for  their  assertion  and  defense.  If  a  wife  may  take  to  her- 
self damages  recovered  for  a  personal  injury,  the  law  does  not  intend 
that  her  property  may  be  despoiled  and  no  compensation  enforced 
against  the  wrong-doer.  If  she  is  disseized  of  her  land,  may  she 
not  employ  the  usual  and  necessary  aids  allowed  other  land-owners 
to  regain  possession,  and  recover  damages  equivalent  to  the  rents 
and  profits  of  which  she  has  been  deprived  ? 

It  is  admitted  that  express  authority  is  not  given  by  statute  to  em- 
ploy counsel  and  engage  to  pay  fees,  but  she  may  sue,  alone  or  jointly 
with  her  husband,  "for  the  recovery  of  her  property  or  rights ;"  and 
she  may  be  sued  "on  all  contracts,  or  other  matters,  for  which  her 
individual  property  is  liable."  Code  1871,  §  1783.  She  may  execute 
a  bond  necessary  in  any  proceeding,  either  at  law  or  in  equity,  to 
establish  or  enforce  her  rights,  and  the  same  shall  be  binding,  etc. 
Code  1871,  §  1781. 

She  may  contract  for  work  and  labor  for  the  use  and  benefit  or  im- 
provement of  her  separate  estate.    Code  1871,  §  1780. 

This  legislation  implies  that  the  courts  shall  be  open  to  the  wife  to 
sue  both  for  the  recovery  of  her  property  or  "rights."  The  principal 
power  carries  with  it  all  incidents  necessary  to  its  efficiency.  So  she 
may  be  sued  on  her  contracts,  and  other  matters ;  the  power  to  de- 
fend a  suit  is  necessarily  implied.  It  would  be  folly  to  say  that  she 
could  not  consult  and  employ  counsel,  if  it  were  usual,  proper  and 
necessary. 

Since  she  may  be  impleaded  in  the  courts  in  matters  afifecting  her 
separate  estate,  she  must  be  esteemed  competent  to  avail  of  all  the 
aids  and  facilities  open  to  suitors  generally.     If  she  may  loan  her 


FRTXCTPAI 


25 


jiirities  therefor,  without  further  provision  of  law, 

rhe  note  or  bond,  or  foreclose  th<  \ge,  and 

ittorney,  and  contract  to  pay  for  •  ::.c.     By 

she  may  make  any  bond  inciden'  vA  proceed- 


[  in  New  York,  in  Freeking- 
..ucr  a  statute  alloM-i'^"    ■  -^  •  -.:, 
>  11  sines s,  etc.,  the  po 
incidental  tr   ' 
'arb.  ?26;  O 


lilu.strates  the  class.     There  the  etfc 
I  for  attorney's  fees  to  prosecute  as...;   ...     ' 
;  act  fell  under  the  common-law  rule,  and  was  n^ 
ite.     It  had  no  relation  to  the  separate  estate 
IS  of  the  wife, 
judgment  affirmed.^ 


N.  Y, 


hold 


422- 

•v  on  any 

-  to  her 

lams  V. 

several 

50  Ind. 

the  wife 

--:h  a 
die 


\\'(~^"DT^  f  :\  \: 


^T?Tr'f7 


I':>05.     C^LTKEME  '^OURT  Or   iLLI>;01S.     47   . 

■  h 

:.  from  circuit  court  of  McLean  county.    The  faci 
I           ubstantially  set  forth  in  the  opinion  of  the  court. 
]\1k.  h  .STICE  Lawrence  delivered  the  opinion  of  the  court. 
Tl  ■       :>^  -'trial  of  the  right  of  property,  in  which  Mrs.  Henrietta 
/•ed  the  ownership  of  about  seventy  hogs,  levied  upon 
x.  LUtion  against  her  husband.    She  testif'  '    '    '  '"ler  hus- 
>.er  gave  her,  in  t866,  different  sums,  am  in  all  to 
oiece  of  land,  which  she  sold  at  $800,  •:  er  hus- 
for  a  year  acting  as  her  agent,  in  bu}  i                iiipping 
.stock,  with  this  money.     The  partner  of  Mr.  Price  was 
!•-  a  witnes.s,  and  be  testified  that  he  and  Price  formed  a 
r  dealing  in  grain  and  stock  in  November,  1866;  that 
ng  of  ]\lrs.  Price  in  the  business,  and  was  not  in  part- 
er :  that  the  firm  sometimes  did  business  to  the  amount 
k;  that  they  made  money,  and  that  he  did 
•  cntTie  from  that  Price  put  into  the  hii<^i  ■ 
4  before  the  hogs  in  cor.: 
!d  a  part  of  them  to  Pri-. 

,  V.'l.ar.  fVn^  .^o?.  it  was  held  that  a  warr 
her  husband,  for  t' 


^4 


ich  liability,  enfi 
argued  that  the  pn  ji 


;iLLH'iripted 


i  J 1  u    u 

stiit  was  a  statutory,  leg-al  estate,  and  that  the 

and  her  cai'  vas  gov- 

e — that  we  to  it  for 

lake  the  contract.    The  premise  is  undoubtedly  cor- 

78,  of  the  Code  of  1S71,  continues  to  a 
.iiu^'..  every  species  anH  '''■-"--■  •'•tw,,-,  n.-i-  .  r. .,.,.,  ^,- 

:  of  the  marriaee.  as  her 


jjy  scciiOL 
shall  accrue 
be  taken  for  the  husband's  debts, 
rent  her  land,  make  contr^'^f-  fr.r 
take  securities  therefor  iri 
bu^iv     - 

li  !id  nusfa 


rc.its,  i 
to  the  V. 
Section  1780  a  I 
tl-.,-  M.p  thereof,  i^,.:.  ....   -.    . 

.nd  employ  it  in  trade  <  r 

!  these  larg^e  property  in- 

'ree  access  to 

t'lke  tA  her- 


to 

au( 


recovered  fo 

.(■!■'  \      VYAX    be  ,  .     - 

Of.     If  she  IS  d 


ucii  sivi  i:as  been 


l\  :'^d  that  express  autb 

p!o\  i:<  li ;  ngage  to  pay  fei' 

^\'ilh  !ioi  i,  "for  the  recover 

she  may  be  sued  "on  all  contract- 
individual  property  is  liable."    Co'i.. 
a  bond  necessary  in  any  proceeding', 

''    '  'nforce  her  rights,  an'  ' 

T781. 


n  it  all  incidents 


aii'j  enipJL'v  coi. 


f  her  land, 
-d  other  '^^ 
livalent 


'\v-  statute  to  em- 
■r  jointlv 

'=:"  and 


i'ivjirig',  etc. 

.'iC  and  benefit  or  ivr)- 

>  1780.     . 

ill  be  open  to  ^he  wife  to 

"ricliK  "    The  principal 

ncy.    So  she 

> .  uiiij  power  to  de- 

folly  to  say  that  she 

isual,  proper  and 

•.'rs  affecting  her 
'  avail  of  all  the 
le  may  loan  her 


PRINCIPAL. 


25 


money  and  take  securities  therefor,  without  further  provision  of  law, 
she  could  sue  on  the  note  or  bond,  or  foreclose  the  mortgage,  and 
could  engage  an  attorney,  and  contract  to  pay  for  that  service.  By 
express  statute,  she  may  make  any  bond  incident  to  judicial  proceed- 
ings. 

It  was  held  in  New  York,  in  Freeking  v.  Bolland,  53  N.  Y.  422- 
425,  that  under  a  statute  allowing  a  married  woman  to  carry  on  any 
trade  or  business,  etc.,  the  power  to  make  contracts  relating  to  her 
business  was  incidental  to  her  power  of  conducting  it.  Adams  v. 
Nonness,  12  Barb.  326;  Chapman  v.  Foster,  6  Allen  136. 

We  have  been  referred,  by  counsel  for  the  appellant,  to  several 
cases  supposed  to  sustain  his  view.  Putnam  v.  Tennyson,  50  Ind. 
459,  illustrates  the  class.  There  the  effort  was  to  hold  the  wife 
bound  for  attorney's  fees  to  prosecute  a  suit  for  divorce.  Such  a 
contract  fell  under  the  common-law  rule,  and  was  not  affected  by  the 
statute.  It  had  no  relation  to  the  separate  estate  or  property  in- 
terests of  the  wife. 

Judgment  affirmed.^ 


WORT^IAN  V.  PRICE. 
1868.    Supreme  Court  of  Illixois.    47  111.  22. 

Appeal  from  circuit  court  of  ]\IcLean  county.  The  facts  in  the 
case  are  substantially  set  forth  in  the  opinion  of  the  court. 

Mr.  Justice  Law^rence  delivered  the  opinion  of  the  court. 

This  was  a  trial  of  the  right  of  property,  in  which  j\Irs.  Henrietta 
C.  Price  claimed  the  ownership  of  about  seventy  hogs,  levied  upon 
under  an  execution  against  her  husband.  She  testified  that  her  hus- 
band's father  gave  her,  in  1866,  different  sums,  amounting  in  all  to 
$2,960,  and  a  piece  of  land,  which  she  sold  at  $800,  and  that  her  hus- 
band had  been  for  a  year  acting  as  her  agent,  in  buying  and  shipping 
grain  and  stock,  with  this  money.  The  partner  of  ]\Ir.  Price  was 
produced  as  a  witness,  and  he  testified  that  he  and  Price  formed  a 
partnership  for  dealing  in  grain  and  stock  in  November,  1866;  that 
he  knew  nothing  of  Airs.  Price  in  the  business,  and  was  not  in  part- 
nership with  her ;  that  the  firm  sometimes  did  business  to  the  amount 
of  $4,000  or  $5,000  per  week ;  that  they  made  money,  and  that  he  did 
not  know  where  the  money  came  from  that  Price  put  into  the  busi- 
ness. The  partnership  was  dissolved  before  the  hogs  in  controversy 
had  been  levied  on,  and  he  had  sold  a  part  of  them  to  Price.    The 

^In  Dorrance  v.  Scott,  3  Whar.  (Pa.)  308,  it  was  held  that  a  warrant  of  at- 
torney given  by  a  married  woman,  joined  by  her  husband,  for  the  sale  of  her 
separate  estate,  was  void. 

In  Vail  V.  Meyer,  71  Ind.  159,  it  was  held  that  a  married  woman  may  con- 
tract, through  an  agent,  for  the  improvement  of  her  property. 


26  COMPETENCY   OF    PARTIES. 

case  was  submitted  to  the  court,  without  a  jury,  and  on  this  state  of 
facts,  the  finding  and  judgment  were  for  the  claimant  of  the 
property. 

We  think  the  finding  was  erroneous.  It  is  urged  that  although 
such'  an  arrangement  could  not  have  been  sustained  prior  to  the 
law  of  i86i,  known  as  the  married  woman's  act,  it  is  legalized  by 
that  law.  Under  that  law,  the  husband  can  undoubtedly  act  as  the 
agent  of  his  wife,  for  the  purpose  of  managing  her  separate  property, 
but  it  must  be  an  actual  and  bona  fide  agency,  and  not  an  arrange- 
ment by  which,  under  color  of  an  agency  kept  concealed  from  the 
public,  the  husband  is  to  enter  into  trade  with  capital  furnished  by 
the  wife,  carry  on  business  in  his  own  name,  precisely  as  he  would 
do  with  his  own  money,  and  then  claim,  as  against  creditors,  that  all 
the  property  bought  and  sold  by  him  in  the  course  of  his  business, 
is  the  property  of  his  wife.  In  the  case  before  us,  it  does  not  appear 
that  there  was  any  arrangement  between  the  husband  and  wife  for 
his  compensation,  although  he  devoted  all  his  time  and  energy  to 
the  business  which  he  claims  to  have  been  conducting  as  her  agent. 
The  profits  of  this  business  arose  in  part  from  the  capital  employed 
and  in  part  from  his  time  and  skill,  yet  there  was  no  arrangement  as 
to  their  division.  Although  the  act  of  1861  authorizes  the  wife  to 
hold  personal  property,  and  under  that  law  she  may  employ  her  hus- 
band as  agent  to  manage  it,  yet  it  does  not  authorize  her  to  receive, 
to  the  exclusion  of  creditors,  the  entire  fruits  of  his  time,  skill  and 
industry,  and  it  must  not  be  so  construed  as  to  invite  fraud. 

This  transaction  can  only  be  regarded,  so  far  as  concerns  creditors, 
as  a  loan  of  the  wife's  money  to  her  husband,  by  means  of  which  he 
engaged  in  trade.  Such  would  have  been  its  character  if  the  money 
had  come  from  a  third  person,  and  it  must  be  so  regarded  as  between 
the  husband  and  wife.  It  has  been  decided  in  other  states  having  a 
married  woman's  law,  similar,  in  most  respects,  to  our  own,  that  the 
wife  cannot,  by  virtue  of  this  law,  engage  in  trade.  Freeman  v. 
Aeser,  5  Duer  476 ;  Sherman  v.  Elder,  24  N.  Y.  383 ;  Wooster  v. 
Northrup,  5  Wis.  245;  Glover  v.  Alcott,  11  Mich.  471;  Gage  v. 
Dauchy,  28  Barb.  622;  Keeney  v.  Good,  21  Pa.  St.  349;  Hallowell  v. 
Horter,  35  Pa.  St.  375.  Whether  she  can  do  so  in  her  own  name,  and 
manage  the  business  herself,  without  the  aid  or  interference  of  her 
husband,  is  a  question  not  involved  in  the  present  case,  and  one  we 
do  not  decide.  But  we  have  no  hesitation  in  saying  that  if  she  ad- 
vances capital  to  her  husband,  with  which  he  engages  in  trade,  such 
capital  and  its  fruits  in  the  business  will  be  subject  to  the  husband's 
debts,  even  though  he  may  claim  to  be  acting  as  his  wife's  agent,  and 
doing  business  in  her  name.  A  different  rule  would  lead  to  the  gross- 
est fraud.  What  was  said  in  Brownell  v.  Dixon,  37  111.  197,  in  re- 
gard to  the  power  of  the  husband  to  act  as  agent  for  his  wife, 
simply  means  that  he  may  act  as  her  agent  for  a  particular  transac- 
tion, or  generally,  for  the  control  of  her  property  or  the  invest- 


PRINCIPAL.  2'J 

e  rents, 

or  ciiange  tlic  ciiaraclt^r  ol  iicr  uts, 

and  he  n-iny  do  this  with'"nt  -iV  '■'er 

!Ls.    But  we  ^ay,  nor  r- 

at  she  could  ,1  her  ;.  ;e 

'e,  to  be  managed  b)  -.ne 

be  devr^''-''' ',    ^'^  '   •''■  ^    ■...■u.aii—.i  in 

profits.  ch  of  his  cred- 

^   ■  '    ,  c  luaifn]-:':!:  ;ixii 


DEXT: 

RKME  Court  of  the  United  States.    8i 

:-A  nmr  1  cit^^..,,  fr.T  the  District 

Ji)  (ji  cj;j:';^ifi)L  cl:;!ju;i,ju-':'.  1  in  cic  court  below  by 
ror.  to  recover  a  certain  lot  of  land  in  the  citv  of 

-.  below  ■ 

;  up  a  p. 
to  one  James  W.  Harris,  substituti'  01 

■\%,  and  mesne  conveyances  from  R'-"'^  '1  ■ 

tifis  gave  evidence  to  show  the  1 
-  'cuted  the  power  of  attorney  i.»  rai! 

':  on  the  statute  of  limitations.    The  wi  .;' 


tcu  m  me 


as  disn 


'are  l/- 

;,    T. — T  whether  a 

nly 
or 
^rson,  bcmg  ot  unsound  mmd,  is  incapable  of  executing 
V  '1-^ "^    power  of  attorney,  or  other  instn^^  -^•''   ''    -''■ 
-standing,  and  that  a  power  of  C' 
v^r-on,  or  one  of  unsound 
n  the  defendant  below  v- 


ri  Northwestern  R . 


.'  of 

r  to  the 

■       ]  by 

the 

\><o],crty, 

■  arrange- 

-d  from  the 

iLirnished  by 

as  he  would 

-tors,  that  all 

!is  hnsjness. 


ived 
'  >  1 1., lit  as 
wife  to 
■  .  .  hus- 
,  ^;ive, 
kill  and 


incy 

;.KMween 

iiavinef  a 


;■  V. 

:"  -..^^v;    V. 

.  '  lowell  V. 

'■■■■■  and 

her 

we 

ad- 

:>le,  such 

I  nsband's 

's  agent,  and 

to  the  gross- 

li.  197,  in  re- 

'or  his  wife, 

liar  transac- 

:    the  invest- 


PRINCIPAL.  27 

ment  of  her  funds.  He  may  lease  her  property  and  collect  the  rents, 
or  invest  her  money,  or  change  the  character  of  her  investments, 
if  authorized  by  her,  and  he  may  do  this  without  subjecting  her 
property  to  his  debts.  But  we  did  not  say,  nor  expect  to  be  under- 
stood as  saying,  that  she  could  make  him  her  agent,  for  the  purpose 
of  engaging  in  trade,  to  be  managed  by  him,  and  to  which  all  his  time 
and  energy  might  be  devoted,  and  that  the  property  embarked  in 
such  trade,  and  its  profits,  would  be  beyond  the  reach  of  his  cred- 
itors. Such  is  not  the  law.  The  judgment  must  be  reversed. 
Judgment  reversed.^ 


DEXTER  V.  HALL. 

1872.    Supreme  Court  of  the  United  States.    82  U.  S.  9. 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  California. 

This  was  an  action  of  ejectment  commenced  in  the  court  below  by 
the  defendant  in  error,  to  recover  a  certain  lot  of  land  in  the  city  of 
San  Francisco.  The  plaintiffs  below  claimed  as  the  heirs  of  one 
John  Hall.  The  defendants  set  up  a  power  of  attorney  executed  by 
the  said  Hall  to  one  James  W.  Harris,  substitution  by  Harris  of 
David  B.  Rising,  and  mesne  conveyances  from  Rising.  To  avoid  this 
title,  the  plaintiffs  gave  evidence  to  show  the  insanity  of  John  Hall 
at  the  time  he  executed  the  power  of  attorney  to  Harris.  The  de- 
fendants also  relied  on  the  statute  of  limitations.  The  widow  of  John 
Hall,  who  was  one  of  the  original  plaintiffs,  died  during  the  pendency 
of  the  suit,  and  it  is  now  prosecuted  by  the  children  alone.  Judgment 
was  rendered  in  the  court  below  for  the  plaintiffs.  All  the  defend- 
ants, except  Dexter,  paid  the  heirs  for  their  respective  titles,  and  the 
suit  was  dismissed  as  to  them.  Dexter  sued  out  this  writ  of  error, 
relying  upon  exceptions  to  the  charge  of  the  judge,  and  also  to  the 
admission  and  refusal  of  certain  evidence. 

The  nature  of  these  exceptions  appears  in  the  opinion. 

Strong,  J. — The  prominent  question  in  this  case  is,  whether  a 
power  of  attorney  executed  by  a  lunatic  is  void,  or  whether  it  is  only 
voidable.  The  circuit  court  instructed  the  jury  that  a  lunatic  or 
insane  person,  being  of  unsound  mind,  is  incapable  of  executing 
a  contract,  deed,  power  of  attorney,  or  other  instrument  requiring 
volition  and  understanding,  and  that  a  pov/er  of  attorney  executed 
by  an  insane  person,  or  one  of  unsound  mind,  is  absolutely  void.  To 
this  instruction  the  defendant  below  excepted,  and  he  has  now  as- 
signed it  for  error. 

^Accord:  Weisbrod  v.  Chicago  &  Northwestern  Ry.  Co.,  18  Wis.  35.  See 
also  Paine  v.  Farr,  118  Mass.  74. 


28  COMPETENCY   OF   PARTIES. 

Looking  at  the  subject  in  the  Hght  of  reason,  it  is  difficult  to  per- 
ceive how  one  incapable  of  understanding  and  of  acting  in  the  ordi- 
nary affairs  of  life,  can  make  an  instrument,  the  efficacy  of  which  con- 
sists in  the  fact  that  it  expresses  his  intention,  or  more  properly  his 
mental  conclusions.  The  fundamental  idea  of  a  contract  is  that  it  re- 
quires the  assent  of  two. minds.  But  a  lunatic,  or  a  person  non  compos 
mentis,  has  nothing  which  the  law  recognizes  as  a  mind,  and  it  would 
seem,  therefore,  upon  principle,  that  he  cannot  make  a  contract  which 
may  have  any  efficacy  as  such.  He  is  not  amenable  to  the  criminal 
laws,  because  he  is  incapable  of  discriminating  between  that  which 
is  right  and  that  which  is  wrong.  The  government  does  not  hold 
him  responsible  for  acts  injurious  to  itself.  Why,  then,  should  one 
who  has  obtained  from  him  that  which  purports  to  be  a  contract  be 
permitted  to  hold  him  bound  by  its  provisions,  even  until  he  may 
choose  to  avoid  it?  If  this  may  be,  efficacy  is  given  to  a  form  to 
which  there  has  been  no  mental  assent.  A  contract  is  made  without 
an  agreement  of  minds.  And  as  it  plainly  requires  the  possession 
and  exercise  of  reason  quite  as  much  to  avoid  a  contract  as  to 
make  it,  the  contract  of  a  person  without  mind  has  the  same  effect 
as  it  would  have  had  he  been  in  full  possession  of  ordinary  under- 
standing. While  he  continues  insane  he  cannot  avoid  it ;  and  if, 
therefore,  it  is  operative  until  avoided,  the  law  affords  a  hmatic  no 
protection  against  himself.  Yet  a  lunatic,  equally  with  an  infant,  is 
confessedly  under  the  protection  of  courts  of  law  as  well  as  courts 
of  equity.  The  contracts  of  the  latter,  it  is  true,  are  generally  held 
to  be  only  voidable  (his  power  of  attorney  being  an  exception). 
Unlike  a  lunatic,  he  is  not  destitute  of  reason.  He  has  a  mind,  but 
it  is  immature,  insufficient  to  justify  his  assuming  a  binding  obliga- 
tion. And  he  may  deny  or  avoid  his  contract  at  any  time,  either  dur- 
ing his  minority  or  after  he  comes  of  age.  This  is  for  him  a  suffi- 
cient protection.  But  as  a  lunatic  cannot  avoid  a  contract,  for  want 
of  mental  capacity,  he  has  no  protection  if  his  contract  is  only  void- 
able. 

It  must  be  admitted,  however,  that  there  are  decisions  which  have 
treated  deeds  and  conveyances  of  idiots  and  lunatics  as  merely  void- 
able, and  not  void.  In  Beverly's  Case,  4  Co.  123,  b,  which  was  a 
bill  for  relief  against  a  bond  made  by  Snow,  a  lunatic,  it  was  resolved 
that  every  deed,  feoffment  or  grant,  which  any  man  "non  compos 
mentis''  makes,  is  avoidable,  and  yet  shall  not  be  avoided  by  himself, 
because  it  is  a  maxim  of  law  that  no  man  of  full  age  shall  be,  in  any 
plea  to  be  pleaded  by  him,  received  by  the  law  to  stultify  himself 
and  disable  his  own  person.  A  second  reason  given  for  the  rule  was, 
"because  when  he  recovers  his  memory  he  cannot  know  what  he  did 
when  he  was  non  compos  mentis."  Neither  of  these  reasons  are 
now  accepted,  and  the  maxim  no  longer  exists.  There  were  other 
things  ruled  in  Beverly's  case,  among  which  w^ere  these :  That  the 
disability  of  a  lunatic  is  personal,  extending  only  to  the  party  him- 


PRINCIPAL, 


:lf.  except  tbat  it  eKtead.s  to  privies  in. tenure,  as  Ion! 
te,  as  tenant  in  tail;  but  '' 
.1  representation,  as  exe^ 
>:■  ■■  I  siiow  the  disability  of  the  ancesto.r,  or  tes^ 
:    also  r< 


Late.   It 
!L  avoid- 
remarked 
-'te  made 
mentis, 
age,  he 
not  es- 
al- 
all 
m  such 


-ed  that  acts  done 
I  Lord  Coke 

:  .<  o.i.u..=  there  is  -^  ■• 
■  and  by  attorney 
a  leoffment  in  fee  in  [k  rson,  ai:  i  gk. 
lOt  be  in  ward,  or  if  he  dies  without  1 
..     :  ;    *    *    *    but  if  the  '' 
''"       h  the  feoffor  shall  n-- 

,  in  judgment  of  law,  the  estate  i. 

,  if  his  heir  is  within  age,  he  shall  be .      .  ,    . 

-it  heir,  the  land  shall  escheat."   Such,  also,  is  the  rule 

■  itz  Herbert's  Nat.  Bre.,  202,  c.    This  is  plainly  a  recoguiii--: 

:  "incinle  that  the  letter  of  attorney  of  an  idiot  or  lunatic  . 

may  not  be  permitted  himself  to  assert  its  nullity,     riis 

r?!l   others  may.    The  doctrine  i?   ;0?o  -^'^^crted   rh-'.':  as 

rs  of  a  lunatic  his  deed  is  in  jilc, 

'ily  maintained  in  England, 

in  Ihompsou  v.  Leach,  repotted  in  Carthc  68,  and  in 

'^omberbach  211,   235,  a  clear  distinction  was   i.u-./:j   i)etween  the 

.  ?.offment  of  a  lunatic  taking  effect  by  livery  of  seisin  and  his  deed  of 

id  sale,  1  '  .der^ind  grant.    The  "    '  '  to 

■'  only,  '  f  the  solemnit 

id  to  be  ■  'le  case 


.  and  til-  lling  ' 

ible,  or  whether  it  v. 
ic  upon  which  were  u^ 
a  deed  of  surrender. 


ot  : .  I'At 

aieuc,  brought  by  a 

l;  :3  whether  his  deed 

;tely  void.    The 

^liLWii  contingent  renu.,...  ..1. . 

If  his  deed  was  at  any  time 

d,  it  merged  the  tenancy  for 

ndr>rs,  nn>l  though  the  deed 

be  aVOjav,u  by  aiiy  ■. ,   yet  the  con- 

,  being  once  extinct,  revived  bv  -nv 

facto,     h  was  necessary,  tncretore,   to   d(. 

A    ^^■-•:    r,     m-.;!';!,     ,.i-    a.    nr  rlif-r  it  WaS  gOOd   UUtll   a.....>- 

>id,  ab  initio,  because  of  i'  0 
.a  difference  between  a 
s  of  an  infant,  and  the 


n,  and  m  which  the  iormaiity 


i  to  per 
;he  ordi- 
!iich  con- 
;  jjroperl}'  his 
is  that  it  re- 
'i  non  CO- 
and  it  -••. 


Lween  ti 


;ie  effect 

V  under- 

and  il. 

:  no 


.nyf  a  bi 


jict,  tor 

iS  en  Ay 


;i  age  shall  be,  in 

1.      <(>     ^tl'tl■^^•     I-ii- 


tiie  party  hitn- 


PRINCIPAL.  29 

self,  except  that  it  extends  to  privies  in  tenure,  as  lord  by  escheat, 
and  privies  in  estate,  as  tenant  in  tail ;  but  that  privies  in  blood,  as 
heirs,  or  privies  in  representation,  as  executors  or  administrators, 
might  show  the  disability  of  the  ancestor,  or  testator,  or  intestate.  It 
was  also  resolved  that  acts  done  in  a  court  of  record  were  not  avoid- 
able even  in  equity.  Lord  Coke,  in  commenting  on  the  case,  remarked 
that  "As  to  others  there  is  a  great  difference  between  an  estate  made 
in  person  and  by  attorney ;  for  if  an  idiot,  or  non  compos  mentis^ 
makes  a  feoffment  in  fee  in  person,  and  dies,  his  heir  within  age,  he 
shall  not  be  in  ward,  or  if  he  dies  without  heir  the  land  shall  not  es- 
cheat ;  *  *  *  but  if  the  feoffment  is  made  by  letter  of  attorney,  al- 
though the  feoffor  shall  never  avoid  it,  yet  after  his  death,  as  to  all 
others,  in  judgment  of  law,  the  estate  is  void,  and,  therefore,  in  such 
case,  if  his  heir  is  within  age,  he  shall  be  in  ward ;  or,  if  he  dies  with- 
out heir,  the  land  shall  escheat."  Such,  also,  is  the  rule  as  stated  in 
Fitz  Herbert's  Nat.  Bre.,  202,  c.  This  is  plainly  a  recognition  of  the 
principle  that  the  letter  of  attorney  of  an  idiot  or  lunatic  is  void, 
though  he  may  not  be  permitted  himself  to  assert  its  nullity.  His 
heirs  and  all  others  may.  The  doctrine  is  also  asserted  that  as 
against  the  heirs  of  a  lunatic  his  deed  is  invalid,  and  this,  we  think, 
has  been  steadily  maintained  in  England. 

In  Thompson  v.  Leach,  reported  in  Carthew  438,  468,  and  in 
Comberbach  211,  235,  a  clear  distinction  was  taken  between  the 
feoffment  of  a  lunatic  taking  effect  by  livery  of  seisin  and  his  deed  of 
bargain  and  sale,  his  surrender  and  grant.  The  former  was  held  to 
be  voidable  only,  because  of  the  solemnity  of  the  livery,  while  the 
latter  were  held  to  be  void.  The  case  was  ejectment,  brought  by  a 
lunatic's  heirs,  and  the  controlling  question  was  Vv-hether  his  deed 
was  only  voidable,  or  whether  it  was  absolutely  void.  The  grantor 
had  a  life  estate  upon  which  were  dependent  contingent  remainders, 
and  he  made  a  deed  of  surrender.  If  his  deed  was  at  any  time 
effective  before  the  contingency  happened,  it  merged  the  tenancy  for 
life,  and  destroyed  the  contingent  remainders,  and  though  the  deed 
might  afterwards  be  avoided  by  any  means  in  law,  yet  the  con- 
tingent remainders,  being  once  extinct,  could  not  be  revived  by  any 
matter  ex  post  facto.  It  was  necessary,  therefore,  to  determine 
whether  the  deed  was  a  nullity  or  whether  it  was  good  until  avoided. 
The  court  resolved  that  the  deed  was  void,  ab  initio,  because  of  the 
grantor's  lunacy.  It  was  said  that  "there  is  a  difference  between  a 
feoffment  and  livery  made  propriis  manibus  of  an  infant,  and  the 
bare  execution  of  a  deed  by  sealing  and  delivery  thereof,  as  in 
cases  of  grants,  surrenders,  releases,  etc.,  which  have  their  strength 
only  by  executing  them,  and  in  which  the  formality  of  livery  of 
seisin  is  not  so  much  regarded  in  the  law,  and,  therefore,  the  feoff- 
ment is  not  void,  but  voidable ;  but  surrenders,  grants,  etc.,  of  an 
idiot  are  void  ab  initio."  The  case  is  a  leading  one,  and  it  is  in 
some  respects  more  fully  reported  in  3  Salk.  300.     There  it  appears 


30  COMPETENCY   OF    PARTIES. 

not  only  that  the  distinction  mentioned  is  recognized,  but  that  Holt, 
Ch.  ].,  declared  the  deed  of  a  person  non  compos  mentis  to  be  void ; 
that  if  he  grants  a  rent,  and  the  grantee  distrains  for  arrears,  he  may 
bring  trespass ;  that  his  letter  of  attorney  or  his  bond  are  void,  be- 
cause, as  he  stated,  the  law  had  appointed  no  act  to  be  done  for 
avoiding  them.  2  Vent.  198.  Thompson  v.  Leach  has  never  been 
disturbed,  and,  so  far  as  we  know,  has  never  been  doubted.  It  was 
followed  by  the  case  of  Yates  v.  Boen,  in  2  Strange  1104,  which 
was  an  action  of  debt  upon  articles.  The  defendant  pleaded  "non 
est  factum/'  and  offered  to  give  lunacy  in  evidence.  Upon  the  au- 
thority of  Thompson  v.  Leach  and  Smith  v.  Carr,  decided  in  1728, 
the  evidence  was  received. 

The  doctrine  of  Thompson  v.  Leach  was  asserted  also  in  Ball  v. 
Mannin,  i  Dow  &  Clark  380,  decided  in  the  House  of  Lords  in  1829. 
In  that  case  the  sole  question  presented  was,  by  agreement  of  coun- 
sel, whether  the  deed  of  a  person  noji  compos  mentis  was  invalid  at 
law.  In  the  inferior  court  the  judge  had  charged  the  jury  that  "to 
constitute  such  unsoundness  of  mind  as  should  avoid  a  deed  at  law, 
the  person  executing  such  deed  must  be  incapable  of  understanding 
and  acting  in  the  ordinary  affairs  of  life,"  and  refused  to  charge  that 
the  unsoundness  of  mind  must  amount  to  idiocy.  The  ruling  was 
sustained  by  the  Court  of  King's  Bench  in  Ireland  and,  on  writ  of 
error,  by  the  Exchequer  Chamber.  The  case  was  then  removed  to 
the  House  of  Lords  and  the  judgment  was  affirmed.  It  is,  therefore, 
the  settled  law  of  England,  and  it  has  been  since  the  decision  in 
Thompson  v.  Leach,  that  while  the  feoffment  of  an  idiot  or  lunatic 
is  only  voidable,  his  deed,  and  especially  his  power  of  attorney,  are 
wholly  void.  And  now,  by  act  of  parliament,  7  and  8  Vict.,  ch. 
76,  §  7,  his  conveyance  by  feoffment,  or  other  assurance,  is  placed  on 
the  same  footing  with  his  release  or  grant. 

Sir  William  Blackstone,  it  is  true,  appears  to  have  overlooked  the 
distinction  made  in  Thompson  v.  Leach ;  and  in  his  Commentaries 
(Book  2,  p.  291),  while  admitting  that  the  law  was  otherwise  prior 
to  the  reign  of  Henry  VI,  asserted  the  doctrine  that  the  conveyances 
of  idiots  and  persons  of  non-sane  memory,  as  well  as  of  infants  and 
persons  under  duress,  are  voidable,  but  not  actually  void.  But  Sir 
Edward  Sugden  (i  Sugd.  Powers  179;  Shelf.  Lunatics  257-259) 
notices  this  statement  with  disapproval.  His  remarks  are  as  follows : 
"When  Beverly's  case  was  decided  it  was  holden  that  deeds  executed 
by  lunatics  were  voidable  only,  but  not  actually  void,  and  therefore 
they  could  only  be  set  aside  by  special  pleading,  and  by  the  rule 
of  law  the  party  could  not  stultify  himself.  And  Mr.  Justice  Black- 
stone,  following  the  old  rule,  has  laid  down  that  deeds  of  lunatics  are 
avoidable  only,  and  not  actually  void.  But  in  Thompson  v.  Leach  the 
distinction  was  solemnly  established  that  feoffment  with  livery  of 
seisin  of  a  lunatic,  because  of  the  solemnitv  of  the  livery,  was  voidable 
only ;  but  that  a  bargain  and  sale,  or  surrender,  etc.,  was  actually 


W'he: 


I'lce,  or  : 

ihat  noil 

■ight  be 

he  given 
In  thi- 

there  has  been 

:  rule  e>. 


,  24y.     So  ic  iian  be.i. 


:les 


•nee  execute 
to  third  parties,  ai'.  ■rd.nvjv  r 

l>f>  en  for  the  verv  v  'he  law 


in  the  of 


iiat 
nd 


the  letter  of 


I  '■'"      V  Ml.t    . 

,  he  mav 


:       .It       i-lW 

standint'^ 


.■iaccd  on 


nd  therefoi", 

^..'i  by  the  ru!c 

ir.  Justice  Black 


actually 


PRINCIPAL.  31 

void.  This,  therefore,  was  the  ground  of  the  decision  in  Yates  v. 
Boen.  When  the  chief  justice  remembered  that  an  innocent  con- 
veyance, or  a  deed,  by  a  lunatic,  was  merely  void,  he  instantly  said 
that  non  est  factum  might  be  pleaded  to  it  and  the  special  matter 
be  given  in  evidence." 

In  this  country  there  has  been  inconsistency  of  decision.  Some 
courts  have  followed  Mr.  Justice  Blackstone  and  Beverly's  case, 
without  noticing  the  distinction  made  in  Leach  v.  Thompson,  Yates 
V.  Boen,  and  other  English  cases.  Such  are  the  decisions  cited  from 
New  York,  beginning  with  Jackson  v.  Gumaer,  2  Cow.  552,  and 
those  relied  upon  made  in  other  states.  Nowhere,  however,  is  it 
held  that  the  power  of  attorney  of  a  lunatic,  or  any  deed  of  his  which 
delegates  authority  but  conveys  no  interest,  is  not  wholly  void.  And 
in  Pennsylvania,  in  the  Estate  of  Sarah  De  Silver,  5  Rawle  in,  it 
was  directly  ruled  that  a  lunatic's  deed  of  bargain  and  sale  is  abso- 
lutely null  and  void,  and  the  distinction  between  his  feoffment  and 
his  deed  was  recognized.  So,  also,  in  Rogers  v.  Walker,  6  Pa.  St. 
371,  which  was  an  ejectment  by  a  lunatic,  it  was  held  that  a  pur- 
chaser from  her  had  no  equity  to  be  reimbursed  his  purchase  money, 
or  the  cost  of  improvements,  and  Chief  Justice  Gibson  said :  "Since 
the  time  of  Thompson  v.  Leach,  Carth.  435-468,  it  has  been  held  that 
a  lunatic's  conveyance  executed  by  sealing  and  delivery  only  is  abso- 
lutely void  as  to  third  parties,  and  why  not  void  as  tO'  the  grantor  ? 
It  was  said  to  be  so  for  the  very  unphilosophical  reason  that  the  law 
does  not  allow  him  to  stultify  himself — an  early  absurdity  of  the 
common  law,  which  was  exploded  with  us  by  Bensel  v.  Chancellor, 
5  Whart.  371." 

The  doctrine  that  a  lunatic's  power  of  attorney  is  void  finds  con- 
firmation in  the  analogy  there  is  between  the  situation  and  acts  of 
infants  and  lunatics.  Both  such  classes  of  persons  are  regarded  as 
under  the  protection  of  the  law.  But,  as  already  remarked,  a  luna- 
tic needs  more  protection  than  a  minor.  The  latter  is  presumed  to 
lack  sufficient  discretion.  Reason  is  wanting  in  degree.  With  a 
lunatic  it  is  wanting  altogether.  Yet  it  is  universally  held,  as  laid 
down  by  Lord  Mansfield  in  Zouch  v.  Parsons,  3  Burr.  1805,  that 
deeds  of  an  infant  which  do  not  take  effect  by  delivery  of  his  hand 
(in  which  class  he  places  a  letter  of  attorney)  are  void.  We  are 
not  aware  that  any  different  rule  exists  in  England  or  in  this  country. 
It  has  repeatedly  been  determined  that  a  power  of  attorney  made  by 
an  infant  is  void.  Saunderson  v.  Marr,  i  H.  Bl.  75  ;  2  Lil.  Abr.  69; 
I  Am.  L.  Cas.  248,  249.  So  it  has  been  decided  in  Ohio  (Lawrence 
V.  McArter,  10  Ohio  37)  ;  in  Kentucky  (Pyle  v.  Cravens,  4  Litt. 
17)  ;  in  Massachusetts  (Whitney  v.  Dutch,  14  Mass.  462)  ;  and  in 
New  York  (Fonda  v.  Van  Home,  15  Wend.  636).  In  fact,  we  know 
no  case  of  authority  in  which  tlie  letter  of  attorney  of  either  an 
infant  or  a  lunatic  has  been  held  merely  voidable. 

It  must,  therefore,  be  concluded  that  the  circuit  court  was  not  in 


32  COMPETENCY    OF    PARTIES. 

error  in  instructing  the  jury  that  a  power  of  attorney  executed  by  an 
insane  person,  or  one  of  unsound  mind,  is  absolutely  void. 

This  disposes  of  the  only  serious  question  in  the  case.  There  are 
other  assignments  of  error,  but  they  may  be  dismissed  with  brief 
notice.  Those  which  relate  to  the  admission  or  rejection  of  evidence 
are  clearly  without  merit.  The  only  one  which  has  any  plausibility, 
and  which  needs  particular  notice,  is  that  which  complains  of  the  re- 
fusal of  the  court  to  permit  a  medical  witness  to  give  his  opinion 
respecting  the  sanity  of  John  Hall  at  the  time  when  he  signed  the 
power  of  attorney,  basing  his  opinion  upon  the  facts  and  symptoms 
stated  in  the  depositions  read  at  the  trial.  The  witness  was,  however, 
allowed  to  give  his  opinion  on  the  testimony  adduced  by  the  plain- 
tiffs. The  record  does  not  show  fully  what  were  the  facts  stated  in 
the  depositions,  nor  whether  they  were  established  by  uncontradicted 
evidence.  It  may  be,  therefore,  that  by  the  form  in  which  the  ques- 
tion was  put,  the  witness  was  required  not  merely  to  give  his  opinion 
upon  facts,  but  to  ascertain  and  determine  what  the  facts  were.  This, 
of  course,  was  inadmissible.  The  rule  is,  as  laid  down  in  Green- 
leaf's  Evidence,  §  440:  "If  the  facts  are  doubtful  and  remain  to  be 
found  by  the  jury,  it  has  been  held  improper  to  ask  an  expert  who 
has  heard  the  evidence  what  is  his  opinion  upon  the  case  on  trial ; 
though  he  may  be  asked  his  opinion  upon  a  similar  case  hypo- 
thetically  stated."  (Sills  v.  Brown,  9  C.  &  P.  601.)  The  question 
asked  was :  "From  the  facts  stated  in  these  depositions,  and  the 
symptoms  stated,  what,  in  your  opinion,  was  the  state  of  John  Hall's 
mind  on  December  27,  1852,  as  to  sanity  or  insanity?"  It  was  to  this 
the  plaintiffs  objected.  But  the  witness  gave  his  opinion,  founded  on 
all  the  testimony  adduced  by  the  plaintiffs  tending  to  show  insanity, 
and  that  opinion  was  that  Hall  was  capable  of  doing  business  and  of 
executing  a  power  of  attorney.  He  could  have  said  no  more  had  he 
been  allowed  to  consider  the  evidence  given  by  the  defendants  as 
well  as  that  given  by  the  plaintiffs.  The  defendants,  therefore, 
received  no  possible  injury  from  the  ruling  of  the  court.  Hence  this 
assignment  cannot  be  sustained. 

There  remains  one  other  exception  to  be  considered,  for  the  proper 
understanding  of  which  a  concise  statement  of  the  plaintiff's  title  is 
necessary.  They  claimed  under  a  grant  made  on  December  3,  1848, 
from  T.  M.  Leavenworth,  Alcalde  of  the  district  of  San  Francisco, 
to  John  Hall,  their  ancestor.  The  grant  was  duly  recorded  prior  to 
the  third  of  April,  1850,  in  books  deposited  in  the  depositor's  office. 
It  was  for  a  part  of  the  pueblo  lands  situate  within  the  corporate 
limits  of  the  city,  as  defined  in  185 1,  east  of  Larkin  and  north  of 
Johnson  street.  Subsequently,  the  claim  of  San  Francisco  to  her 
pueblo  lands  was  submitted  to  the  United  States  Border  Land  Com- 
missioners, and  on  the  3d  day  of  October,  1854,  it  was  confirmed. 
An  appeal  was  taken  to  the  district  court,  and  thence  transferred  to 
the  circuit  court,  where,  on  the  i8th  day  of  May,  1865,  the  claim  of 


33 

the  city  to  the  lands,  including  the  lot  now  in  controversy,  was  con- 
firmed. And  '-  '  'ee  of  the  circuit  court  was  affirmed  by  this 
court,  by  the  of  the  appeal  therefrom,  the  mandate  having 
'  sent  dowii  .i.ii  riled  February  4,  1867.  On  the  20th  of  June, 
•  .  a  city  ordinance,  known  as  the  Van  Nes?  or-Iinance,  was 
passed,  by  which  the  city  relinquished  and  .  r  right  and 

claim  to  the  lands  within  her  corporate  h..  : iued  by- the 

iiarter  of  1851,  to  the  parties  in  actual  possession  thereof,  by  them- 
-clves  or  tenants,  on  or  before  7r  •'•'■— •    •    ■'---   ■  •    ■  ■  ied  such  posses- 
sion was  kept  up  until  the  'w  linance  into  the 
'                ^cils,  or,  if  interrupicU  by  a:  \  had  been,  or 
.  vered  by  legal  process.     The  -'  nko  declared 
iiat  all  persons  who  held  titles  to  lands  .wiiiiii  ■'•[-■. 
'>  ing  east  of  Larkin  street  and  northwest  of  job;  :ne. 
f  any  grant  by  any  ayuntamiento,  town  council,  or  alcalde  of  the 
,  -...Mr.  r'fter  the  7th  of  July,  1846,  and  before  the  incorporation  of 
!  ■             which  grant,  or  material- portions  of  which,  was  registered 
:       .       .  '             >roper  book  of  records,  deposited  in  the  office  or 
of  the  recorder  of  the  county  of  San  Francisco, 
on  o!                 -piil  3,  1850,  should,  for  all  purposes  contemplated  by 
the  o;              ,  be  decreed  to  be  the  possessors  of  the  land  granted, 
altliougli  It  might  be  in  the  actual  occupancy  of  persons  holding  the 
K'UM"  ''   \orse  to  the  "grantees.    As  the  lot  granted  to  Hall  is  within 
:                ription,  the  ordinance  assured  to  him  whatever  right  and 
1  i  I'            ty  then  had,  and  confirmed,  so  far  as  the  city  could  confirm 
i'     '           ilde's  grant. 

ly,  on  the  nth  of  March,  1858,  the  legislature  of  the 
:i  act  ratifying  and  confirming  what  the  citv  cotmcils 
he  Van  Ness  ordinance,  and  on  the  ist  0/  '54, 

•:'  .i^:'^  all  the  right  and  title  .  f  i1:r-  T'r.'i  to 

rporate  limits  of  the  as 

i;<:  cM.L  ii,v.urporating  the  city,  p:-:  ...ic:.  of 

April  15,  1851,  were  thereby  rel'  ;nted  to 

he  uses  and  purposes  specified  m  -^  ;icc  thereof, 

i.ct  of  the  legislature  of  the  state,   :  .  on  the  nth 

S,  excepting,  however,  from  the  reiuiqul^liment  certain 
luded  in  the  grant  to  Hall. 
i  ants  and  confirmations  were  effectual  to  vest  in  Hall 

'  nd  in  dispute  admits  of  no  question,  and  it  is  not 
■itiff  in  error.'    He  claimed  under  John  Hall.    Bia 
'I  been  given  in  evidence  by  the  plaintifif^  '    ' 
ey  were  the  children  and  heirs  of  Hall,  a; 
■  chief,  the  defendants  asked  the  court  to 
vrr  for  the  reason,  among  others,  tbat  tv 
5,  1864,  it  was  incumbent  u] 

,.^    ^  ,  ,      .ii  hr-;'!    I'l-vi'    hi'i-M   ri'.mmrii.rf'.l    v  .' 

ivElNUARD   C\5L<. 


led  by  &v 

Vhere  ai' 

'  (i  with  brici 

a  of  evidence 

.  any  plausibilit\ 

mplains  of  ^he  rv 

>  sfive  h' 


tacts  wt 

remain  to  b' 

.pert  will 

on  trial 


,;  bu..  aics.-.  and  c 
1  no  Tr>ore  bad  Iv 


icnce  till: 


.  prior  ti ' 
the  depositor's  office. 
•itbin  the  corporate 
■kin  and  north  of 
Francisco  to  her 
'  'rder  Land  Com 
it  was  C' 
■ce  tran: 
".  the  eld  I 


J 


PRINCIPAL.  33 

the  city  to  the  lands,  including  the  lot  now  in  controversy,  was  con- 
firmed. And  this  decree  of  the  circuit  court  was  affirmed  by  this 
court,  by  the  dismissal  of  the  appeal  therefrom,  the  mandate  having 
been  sent  down  and  filed  February  4,  1867.  On  the  20th  of  June, 
1855,  a  city  ordinance,  known  as  the  Van  Ness  ordinance,  was 
passed,  by  which  the  city  relinquished  and  granted  all  her  right  and 
claim  to  the  lands  within  her  corporate  limits,  as  defined  by  the 
charter  of  1851,  to  the  parties  in  actual  possession  thereof,  by  them- 
selves or  tenants,  on  or  before  January  i,  1855,  provided  such  posses- 
sion was  kept  up  until  the  introduction  of  the  ordinance  into  the 
common  councils,  or,  if  interrupted  by  an  intruder,  had  been,  or 
might  be  recovered  by  legal  process.  The  ordinance  also  declared 
that  all  persons  Avho  held  titles  to  lands  within  said  charter  limits, 
lying  east  of  Larkin  street  and  northwest  of  Johnson  street,  by  virtue 
of  any  grant  by  any  ayuntamiento,  town  council,  or  alcalde  of  the 
pueblo,  after  the  7th  of  July,  1846,  and  before  the  incorporation  of 
the  city,  which  grant,  or  material  portions  of  which,  was  registered 
or  recorded  in  a  proper  book  of  records,  deposited  in  the  office  or 
custody  or  control  of  the  recorder  of  the  county  of  San  Francisco, 
on  or  before  April  3,  1850,  should,  for  all  purposes  contemplated  by 
the  ordinance,  be  decreed  to  be  the  possessors  of  the  land  granted, 
although  it  might  be  in  the  actual  occupancy  of  persons  holding  the 
same  adverse  to  the  grantees.  As  the  lot  granted  to  Hall  is  within 
this  description,  the  ordinance  assured  to  him  whatever  right  and 
title  the  city  then  had,  and  confirmed,  so  far  as  the  city  could  confirm 
it,  the  alcalde's  grant. 

Subsequently,  on  the  nth  of  March,  1858,  the  legislature  of  the 
state  passed  an  act  ratifying  and  confirming  what  the  city  councils 
had  done  by  the  Van  Ness  ordinance,  and  on  the  ist  of  July,  1864, 
congress  enacted  that  all  the  right  and  title  of  the  United  States  to 
the  lands  within  the  corporate  limits  of  the  city  of  San  Francisco,  as 
defined  in  the  act  incorporating  the  city,  passed  by  the  legislature  of 
California  April  15,  185 1,  were  thereby  relinquished  and  granted  to 
said  city,  for  the  uses  and  purposes  specified  in  the  ordinance  thereof, 
ratified  by  an  act  of  the  legislature  of  the  state,  approved  on  the  nth 
of  ]\Iarch,  1858,  excepting,  however,  from  the  relinquishment  certain 
parcels  not  included  in  the  grant  to  Hall. 

That  the  grants  and  confirmations  were  effectual  to  vest  in  Hall 
the  title  to  the  land  in  dispute  admits  of  no  question,  and  it  is  not 
denied  by  the  plaintiff  in  error.  He  claimed  under  John  Hall.  But 
when  this  title  had  been  given  in  evidence  by  the  plaintiffs  below, 
with  proof  that  they  were  the  children  and  heirs  of  Hall,  and  when 
they  had  rested  in  chief,  the  defendants  asked  the  court  to  direct  a 
verdict  in  their  favor  for  the  reason,  among  others,  that  under  the 
state  statute  of  Alarch  5,  1864,  it  was  incumbent  upon  the  plaintiffs, 
inasmuch  as  their  action  had  not  been  commenced  within  a  year  after 
3 — Reinhard  Cases. 


34  COMPETENCY   OF    PARTIES. 

its  passage,  to  show  an  actual  possession  in  themsejves  or  their  an- 
cestors within  five  years  next  before  the  commencement  of  the 
action,  which  they  had  failed  to  do.  Cal.  Stat.  1863-4,  pp.  149  and 
435.  The  court  refused  the  direction,  and  correctly.  At  the  time 
when  the  request  was  made  it  did  not  appear  that  the  actual  posses- 
sion of  the  land  had  not  been  enjoyed  by  the  plaintiffs  within  five 
years  next  before  the  action  was  iDrought,  and,  therefore,  they  were 
presumed  to  have  had  such  possession,  in  the  absence  of  evidence  of 
an  adverse  possession,  and  no  such  evidence  has  been  given.  The 
9th  section  of  the  act  of  April  22,  1850,  which  defined  the  time  for 
commencing  civil  actions,  Cal.  Stat.  1850,  p.  343,  expressly  declares 
that  in  every  action  for  the  recovery  of  real  property  such  a  pre- 
sumption shall  be  made  in  favor  of  one  establishing  a  legal  title. 
In  addition  to  this,  three  of  the  plaintiffs  were  minors  when  the  title 
descended  to  them,  and  continued  minors  until  within  less  than  five 
years  before  the  suit  was  brought  (Cal.  Stat.  1834,  p.  435),  and  one 
was  a  minor  until  1872.  The  period  of  their  disabiHty  was,  therefore, 
not  to  be  included  in  the  statutory  period  of  limitation. 

It  is  probable  that  when  the  request  to  direct  a  verdict  for  the 
defendants  was  made,  the  supplementary  act  of  April  4,  1864,  was 
overlooked.  Certainly  it  has  not  been  argued  here  that  the  plaintiffs 
below  were  affected  by  the  act  of  March  5  of  that  year.  But  it  is 
claimed  the  plaintiffs  were  barred  by  the  Statute  of  Limitations  of 
1855.  That,  however,  is  not  before  us.  The  circuit  court  was  asked 
to  give  no  instructions  in  regard  to  it,  and  none  was  given.  Besides, 
so  far  as  the  record  exhibits,  there  was  no  evidence  of  continued  ad- 
verse possession  during  the  five  years  next  preceding  the  commence- 
ment of  the  suit. 

There  is  nothing  more  in  the  case  that  requires  particraar  notice ; 
nothing  which  would  justify  our  awarding  a  new  trial. 

The  judgment  is,  therefore,  affirmed.^ 


KITCHEN  V.  CAPE  GIRARDEAU  and  STATE  LINE  R.  R.  CO. 

1875.    Supreme  Court  of  Missouri.    59  Mo.  514. 

Lewis,  J. — The  petition  stated  in  substance  that  defendant,  by 
a  resolution  of  its  board  of  directors,  adopted  May  23,  1870,  em- 
ployed plaintiff  as  its  general  agent,  with  an  extensive  range  of 
powers  and  duties  for  the  management  of  its  external  affairs ;  that 
his  salary  was  to  be  $10,000  per  annum,  and  the  engagement  was  to 

^  See  Tarbuck  v.  Bispham,  2  M.  &  W.  2. 

In  Drew  v.  Nunn,  L.  R.  4  Q.  B.  D.  661,  it  was  held  that,  where  one  is  so  in- 
sane as  not  to  be  able  to  act  for  himself,  he  can  not  act  through  an  agent. 


PRINCIPAL.  35 

lie  at  ^i  lonths,  or  until  a  contract  made  on  the  same 

vviih  the  Cairo  and  Fulton  Railroad  Company, 

1 ;  that  plaintiff  entered  immediately  upon  the  dis- 

■  L^s.  and  thenceforth  was  at  all  times  willing,  and 

.adiness,  to  perform  any  services  which  might  be 

!(i,  as  such  agent,  by  defendant,  for  the  said  term  of 

hat  defendant  !■"  ^    ^-..•-    •.     -i    ...    .    .  i   <-.   ,,.,y^  g^^., 

atiff  demanded  ; 

'.  after  general  (iciuuii,  .^cl  -c  that  the 

*:  resolution  employing  plaintii'  :  nuthoritVi 

:ured  by  false   and   fraudulent   r  ^;   that 

rented  himself  as  an  officer  and  .  /^_  Ider  in 

Fulton  Railroad  Company ;  that  he  had  great  personal 

capitalists  in  this  country  and  in  Etv--  ■     -nd  with 

of  certain  counties ;  that  as  agent  fc  \nt,  he 

a  transfer  from  the  Cairo  and  Fulton  icaiiroad  Com- 

le  franchises  and  property,  including  from  200,000  to 

'nd,  and  would  obtain  large  county  subscriptions 

■c  of  defendant,  besides  other  great  aids  and  ad- 

t  defendant  in  building  its  railroad;  that  these  representa- 

relied  upon  by  defendant,  and  were  the  whole  inducement 

:  >tion  of  the  resolutions ;  but  that  they  all  proved  to  be  false 

:ulent,  so  that  defendant  realized  none  of  the  promised 

■  lat  defendant,  before  ascertaining  the  falsity  of  said  repre- 

paid  to  plaintiff,  on  account  of  said  agency,  the  sum  of 

which  defendant  claimed  a  right  to  recover  back  with 

also  alleged  that  plaintiff  rendered  no  services  under  his 
contract  of  agency,  but  abandoned  the  same  wholly,  and 
'    "t  had  rescinded  the  contract  soon  after  its  date,  and 

.  plaintiff  upon  discovery  of  said  frauds, 
vvcis  filed  by  plaintiff,  putting  in  issue  all  the  new  matter 
in  the  answer.    The  verdict  and  judgment  were  in  favor 

itiff  for  the  amount  claimed,  less  the  payment  proved  by 

*     *     * 

rf's  testimony  tended  to  prove  the  allegations  in  the 

ts  close  the  defendant  asked  the  court  to  instruct  the 

plaintiff  could  not  recover  because  he  had  omitted  to 

^^ndant  was  authorized  by  its  charter  to  make  the  al- 

The  refusal  so  to  instruct  is  assigned  for  error. 

1'  charter  restrictions,  the  power  of  a  corporation  to 

tsually  measured  by  the  general  objects  and  pur- 

'Oration.     It  is  always  presumed  that  a  corporate 

roper  contract  whose  scope  and  tendency  are 

the  design  of  its  legislative  creation.     It  is 

.-aiitted. 


FAi-niliS. 

'.on  in  t]  >)r  their  an- 

-    l!u  iient   of   the 

:    pp.  149  and 

.   .  V .     At  the  time 

'.he  actual  posses- 

•;::aintiffs  within  five 

therefore,  thev  wer< 


inch  dt 

i>-  343.  ^ 
ea!  projr 
cstabhsl 
ere  miii 
until  with.;, 
It.  1834.  p.  - 
.-  liisability  v 
l'!;ntation. 

ect  a  verdict  for  the 

.IV.L  of  April  4,  1864,  was 

led  here  that  the  plaintiffs 

•    .   '    '  "       it  is 

..  ,-,.V 

ihe  cifv  ii 
■1  none  w.i 
evidence 


'-.jinrcs  pariicuiar  ne)tice 
a  new  trial. 


vND  STATF 


0  '-iiat  aeienciant,  by 

!  May  23,  1870,  em- 

i   extensive  rang^e  01 

^  external  affairs ;  thai 

.d  the  engagement  was  to 


was  held  that,  where  one  is  so  in- 
he  can  not  act  through  an  agent. 


PRINCIPAL.  35 

continue  at  least  six  months,  or  until  a  contract  made  on  the  same 
day  by  defendant  with  the  Cairo  and  Fulton  Railroad  Company, 
should  be  rescinded ;  that  plaintiff  entered  immediately  upon  the  dis- 
charge of  his  duties,  and  thenceforth  was  at  all  times  willing,  and 
held  himself  in  readiness,  to  perform  any  services  which  might  be 
required  of  him,  as  such  agent,  by  defendant,  for  the  said  term  of 
six  months ;  that  defendant  had  failed  and  refused  to  pay,  etc., 
wherefore  plaintiff  demanded  judgment  for  $5,000. 

The  answer,  after  general  denials,  set  up  for  defense  that  the 
adoption  of  the  resolution  employing  plaintiff'  was  without  authority, 
and  was  procured  by  false  and  fraudulent  representations ;  that 
plaintiff  represented  himself  as  an  officer  and  large  stockholder  in 
the  Cairo  and  Fulton  Railroad  Company ;  that  he  had  great  personal 
influence  with  capitalists  in  this  country  and  in  Europe,  and  with 
county  courts  of  certain  counties ;  that  as  agent  for  defendant,  he 
would  procure  a  transfer  from  the  Cairo  and  Fulton  Railroad  Com- 
pany of  valuable  franchises  and  property,  including  from  200,000  to 
400,000  acres  of  land,  and  would  obtain  large  county  subscriptions 
to  the  capital  stock  of  defendant,  besides  other  great  aids  and  ad- 
vantages to  defendant  in  building  its  railroad ;  that  these  representa- 
tions were  relied  upon  by  defendant,  and  were  the  whole  inducement 
to  the  adoption  of  the  resolutions ;  but  that  they  all  proved  to  be  false 
and  fraudulent,  so  that  defendant  realized  none  of  the  promised 
benefits ;  that  defendant,  before  ascertaining  the  falsity  of  said  repre- 
sentations, paid  to  plaintiff,  on  account  of  said  agency,  the  sum  of 
$1,943.16,  which  defendant  claimed  a  right  to  recover  back  with 
interest. 

It  was  also  alleged  that  plaintiff  rendered  no  services  under  his 
pretended  contract  of  agency,  but  abandoned  the  same  wholly,  and 
that  defendant  had  rescinded  the  contract  soon  after  its  date,  and 
discharged  the  plaintiff  upon  discovery  of  said  frauds. 

A  reply  was  filed  by  plaintiff,  putting  in  issue  all  the  new  matter 
contained  in  the  answer.  The  verdict  and  judgment  were  in  favor 
of  the  plaintiff  for  the  amount  claimed,  less  the  payment  proved  by 
defendant.^     *     h<     * 

The  plaintiff's  testimony  tended  to  prove  the  allegations  in  the 
petition.  At  its  close  the  defendant  asked  the  court  to  instruct  the 
jury  that  the  plaintiff  could  not  recover  because  he  had  omitted  to 
prove  that  defendant  was  authorized  by  its  charter  to  make  the  al- 
leged contract.    The  refusal  so  to  instruct  is  assigned  for  error. 

In  the  absence  of  charter  restrictions,  the  power  of  a  corporation  to 
make  contracts  is  usually  measured  by  the  general  objects  and  pur- 
poses of  the  incorporation.  It  is  always  presumed  that  a  corporate 
body  may  make  any  proper  contract  whose  scope  and  tendency  are 
manifestly  to  forward  the  design  of  its  legislative  creation.     It  is 

^  Portions  of  the  opinion  are  omitted. 


36  COMPETENCY   OF   PARTIES. 

often  necessary,  however,  to  prove  the  charter  power,  where  the 
contract  in  issue  is  of  a  character  foreign  to  such  general  design. 
In  this  case  the  answer  sets  out  at  length  the  purposes  of  defendant's 
incorporation,  from  which  it  appears  that  the  agency  under  consid- 
eration was  created,  if  at  all,  expressly  to  carry  out  or  advance  those 
purposes.  It  was,  therefore,  right  to  refuse  the  instruction.^    *    *    *2 


UNITED  STATES  v.  GROSSMAYER. 
1869.     Supreme  Court  of  the  United  States.     '/6  U.  S.  ^2. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court : 
This  was  a  claim  preferred  under  the  Captured  and  Abandoned 
Property  Act,  and  presents  one  question  for  consideration,  which 
the  case  of  the  U.  S.  v.  Anderson  {ante  615),  decided  at  this  term, 
did  not  contain.  It  appears  that  Elias  Einstein,  a  resident  of  ]\Iacon, 
Georgia,  was  indebted,  when  the  war  broke  out,  to  Grossmayer,  a 
resident  of  New  York,  for  goods  sold  and  money  loaned ;  and  that, 
while  the  war  was  in  progress,  a  correspondence  on  the  subject  was 
maintained  through  the  medium  of  a  person  whose  name  is  not 
disclosed,  who  passed  back  and  forth  several  times  between  Macon 
and  New  York.  The  communication  between  the  parties  resulted  in 
Grossmayer  requesting  Einstein  to  remit  the  amount  due  him  in 
money  or  sterling  exchange,  or,  if  that  were  not  possible,  to  invest 
the  sum  in  cotton  and  hold  it  for  him  until  the  close  of  the  war. 

In  pursuance  of  this  direction — as  it  is  supposed  money  or  ster- 
ling exchange  could  not  be  transmitted — Einstein  purchased  cotton 
for  Grossmayer  and  informed  him  of  it,  who  expressed  himself  sat- 
isfied with  the  arrangement.  The  cotton  was  afterward  shipped  as 
Grossmayer's  to  Abraham  Einstein,  at  Savannah,  who  stored  it  there 
in  his  own  name,  in  order  to  prevent  its  seizure  by  the  rebel  author- 
ities. It  remained  in  store  in  this  manner  until  the  capture  of  Savan- 
nah in  December,  1864,  when  it  was  reported  to  our  military  forces 
as  Grossmayer's  cotton,  and  taken  by  them  and  sent  to  New  York 
and  sold. 

On  this  state  of  the  case  Grossmayer  insists  that  he  is  within  the 
protection  of  the  Captured  and  Abandoned  Property  Act,  but  it  is 
hard  to  see  on  what  ground  he  can  base  this  claim  for  protection.  It 
was  natural  that  Grossmayer  should  desire  to  be  paid,  and  credit- 
able to  Einstein  to  wish  to  discharge  his  obligation  to  him,  but  the 
same  thing  can  be  said  of  very  many  persons  who  were  similarly 
situated  during  the  war,  and  if  all  persons  in  this  condition  had  been 

"^Accord:   Washburn  v.  Nashville,  etc.,  R.  R.  Co.,  3  Head  (Tenn.)  638. 
Regarding  the  liability  of  an  unincorporated  society  as  principal,  see  Will- 
cox  V.  Arnold,  162  Mass.  577. 


PR;  NT 


'.'d  to  rio  what  was  done 

see  that  it 

ed  great  embar 

las.smcriL  and  o'um 

"ry  ma- 

ions  of  the  ann_^ 

r.   T'  ha-  been  fou' 

sary,  as 

as  war  is  commenced,  that 

■                'ntercourse 

should  cease 

-,  ri,  ,  .Mtizens  of  the  resp-  • 

,.,..ro.v,     •     • 

•^  it,  and  this 

great  that  all  wr 

:iat  it  is  un- 

ut  any   exprr 

on  the 

s  did  not  v 

of  the 

■n  this  regar 

•■,  1861, 

a  Non-Intercourse  . 

commercial 

■  'letween  the  ?tTi!< 

-       .      .  H       i          .     I.      .      .     ^  I   i               .   ,     >     L 

■  .  cr   .^f  the 

It  is  true  t': 

•nt  could  allow  .-' 

•ie, 

—  per;  but  m  m)  i 

ar  as  he  did  allow  n;, 

;\   •-■•■.:  TO  be 

g  to  regulations  prescribed  by  the  secretary  of  the 

pretense,  however,  that  this  particular  transaction  was 

any  one  connected  with  the  treasury  department,  and 

ore,  not  only  inconsistent  with  the  duties  growing  out 

of  war,  but  in  open  violation  of  a  statute  on  the  subject. 

•:ion  of  intercourse  with  an  enemy  during  the  war  affects 

id  creditors  on  either  side,  equally  with  those  who  do  not 

relation  to  each  other.   We  are  not  disposed  to  deny  the 

hat  a  resident  in  the  territory  of  one  of  the  belligerents  may 

me  of  war,  an  agent  residing  in  the  territory  of  the  other, 

his  debtor  could  pay  his  debt  in  money,  or  deliver  to  him 

11  discharge  of  it,  but  in  such  a  case  the  agency  must  have 

ed  before  the  war  began,  for  there  is  no  power  to  appoint 

lor  any  purpose  after  hostilities  have  actually  commenced, 

.  5  effect  are  all  the  authorities.  The  rer~  '       ''         :not 

:,  obvious    for  while  the  war  lasts  no  nds 

■jrse  is  ]*  ■     In  this  CcSv,  ii  iiiiistuin  is 

z  agent  mayer  to  buy  the  cotton,  the 

:  him  was  illegal,  because  it  was  done  by  means  of  a 

nication  through  a  messenger  who  was  in  some  man- 

!  in  the  record  able  to  pass,  during  the  war,  between 

:  ew  York.    It  was  not  necessary  to  make  the  act  un- 

rossmaver  should  have  communicated  personally  with 

■   re- 
ion 


Tonceded,  Grossmayer    ...  ^  . ohibited  from  trading 
nemy,  how  can  the  purchase  in  question  be  treated 
'  :^-  made  for  him  by  an  agent  appoint^ '  -■'  -  '   ' 
■t  all  with  the  insurgents  was  crea 


barter  fntAver,  where  the 

'         -       -neral  design. 

1.'  defendant's 

)   under  cx)nsid- 

or  advance  those 

action.^    *    *    « 


r^R. 


rossmayer,  a 

d ;  and  that, 

■  subject  was 


re  not  i 


:lt.r- 


bv  th(' 


.•.;lhm  tlr 

..  but  it  i: 

nil  for  protection.  It 

be  paid,  and  credit- 

1  to  him,  but  the 

'lo  were  similarly 

ondition  had  been 

nl  (Tenn.)  638. 


PRINCIPAL.  37 

allowed  to  do  what  was  done  in  this  case,  it  is  easy  to  see  that  it 
would  have  produced  great  embarrassment  and  obstructed  very  ma- 
terially the  operations  of  the  army.  It  has  been  found  necessary,  as 
soon  as  war  is  commenced,  that  business  intercourse  should  cease 
between  the  citizens  of  the  respective  parties  engaged  in  it,  and  this 
necessity  is  so  great  that  all  writers  on  public  law  agree  that  it  is  un- 
lawful, without  any  express  declaration  of  the  sovereign  on  the 
subject. 

But  congress  did  not  wish  to  leave  any  one  in  ignorance  of  the 
effect  of  war  in  this  regard,  for  as  early  as  the  13th  of  June,  1861, 
it  passed  a  Non-Intercourse  Act,  which  prohibited  all  commercial 
intercourse  between  the  states  in  insurrection  and  the  rest  of  the 
United  States.  It  is  true  the  president  could  allow  a  restricted  trade, 
if  he  thought  proper ;  but  in  so  far  as  he  did  allow  it,  it  had  to  be 
conducted  according  to  regulations  prescribed  by  the  secretary  of  the 
treasury. 

There  is  no  pretense,  however,  that  this  particular  transaction  was 
authorized  by  any  one  connected  with  the  treasury  department,  and 
it  was,  therefore,  not  only  inconsistent  with  the  duties  growing  out 
of  a  state  of  war,  but  in  open  violation  of  a  statute  on  the  subject. 
A  prohibition  of  intercourse  with  an  enemy  during  the  war  affects 
debtors  and  creditors  on  either  side,  equally  with  those  who  do  not 
bear  that  relation  to  each  other.  We  are  not  disposed  to  deny  the 
doctrine  that  a  resident  in  the  territory  of  one  of  the  belligerents  may 
have,  in  time  of  war,  an  agent  residing  in  the  territory  of  the  other, 
to  whom  his  debtor  could  pay  his  debt  in  money,  or  deliver  to  him 
property  in  discharge  of  it,  but  in  such  a  case  the  agency  must  have 
been  created  before  the  war  began,  for  there  is  no  power  to  appoint 
an  agent  for  any  purpose  after  hostilities  have  actually  commenced, 
and  to  this  effect  are  all  the  authorities.  The  reason  why  this  cannot 
be  done  is  obvious,  for  while  the  war  lasts  nothing  which  depends 
on  commercial  intercourse  is  permitted.  In  this  case,  if  Einstein  is 
to  be  considered  as  the  agent  of  Grossmayer  to  buy  the  cotton,  the 
act  appointing  him  was  illegal,  because  it  was  done  by  means  of  a 
direct  communication  through  a  messenger  who  was  in  some  man- 
ner not  stated  in  the  record  able  to  pass,  during  the  war,  between 
Macon  and  New  York.  It  was  not  necessary  to  make  the  act  un- 
lawful that  Grossmayer  should  have  communicated  personally  with 
Einstein.  The  business  intercourse  through  a  middle  man,  wdiich  re- 
sulted in  establishing  the  agency,  is  equally  within  the  condemnation 
of  the  law. 

Besides  if,  as  is  conceded,  Grossmayer  was  prohibited  from  trading 
directly  with  the  enemy,  how  can  the  purchase  in  question  be  treated 
as  lawful  when  it  was  made  for  him  by  an  agent  appointed  after  his 
own  disability  to  deal  at  all  with  the  insurgents  was  created  ? 

It  is  claimed  that  the  purchase  by  Einstein  was  ratified  by  Gross- 
mayer, and  that  it  relieves  the  case  of  difficulty;  but  this  is  a  mis- 


38  COMPETENCY   OF    PARTIES. 

taken  view  of  the  principle  of  ratification,  for  a  transaction  originally- 
unlawful  cannot  be  made  any  better  by  being  ratified. 

In  any  aspect  of  this  case,  whether  the  relation  of  debtor  and 
creditor  continued,  or  was  changed  to  that  of  principal  and  agent, 
the  claimant  cannot  recover. 

As  he  was  prohibited  during  the  war  from  having  any  deahngs 
with  Einstein,  it  follows  that  nothing  which  both  or  either  of  them 
did  in  this  case  could  have  the  effect  to  vest  in  him  the  title  to  the 
cotton  in  question. 

Not  being  the  owner  of  the  property  he  has  no  claim  against  the 
United  States. 

The  judgment  of  the  court  of  claims  is  reversed,  and  the  cause  is 
remanded  to  that  court,  with  directions  to  enter  an  order  dismissing 
the  petition,^ 


SAFFOLD,  J.,  IN  LUCAS  v.  BANK  OF  DARIEN. 

1830.     Supreme  Court  of  Alabama.     2  Stew.  (Ala.)  280. 

That  the  ordinary  and  legitimate  sphere  of  mercantile  transac- 
tions is  limited  to  simple  contracts ;  and  that  the  general  power  dele- 
gated by  one  member  of  a  firm  to  another,  by  forming  a  mercantile 
connection,  is  equally  limited,  are  propositions  to  which  I  readily 
assent.  The  consequence  of  which  is  that  one  partner  cannot  directly 
bind  another  by  deed,  nor  can  he  constitute  an  agent  or  attorney  with 
sufficient  authority  to  bind  the  partner  in  any  obligation  in  the  nature 
of  a  specialty,  unless  the  other  has  given  special  authority,  or,  being 
present,  consents  by  parol  or  otherwise,  except  that  he  may  make 
any  fair  disposition  of  the  partnership  effects,  or  release  a  debt  to  the 
firm  under  seal,  and  make  it  operate  against  the  whole.  2  Caines' 
Rep.  254-5,  note  A  and  cases  there  cited ;  also  i  H.  &  M.  423 ;  19 
Johns.  Rep.  513 ;  3  Kent's  Com.  24. 

In  this  case,  however,  it  is  not  contended  that  the  complainant  has 
been  subjected  to  any  immediate  obligation  by  deed  or  bond,  either 
by  J.  Lucas,  the  partner,  or  by  either  of  the  attorneys  appointed  by 
him.  But  it  is  said  that  the  principles  of  the  objection  equally  re- 
strained J.  Lucas  from  delegating  by  power,  under  seal,  the  author- 
ity to  Fort  or  Kenan  to  sign  or  indorse  the  notes  or  accept  the  serv- 
ice of  writs,  or  do  any  other  act ;  that  even  an  act  which  would  be 

^  "No  active  business  can  be  maintained,  either  personally  or  by  correspond- 
ence, or  through  an  agent,  by  the  citizens  of  one  belligerent  with  the  citizens 
of  the  other.  The  only  exception  to  the  rule  recognized  in  the  books  (if  we 
lay  out  of  view  contracts  for  ransom  and  other  matters  of  absolute  necessity) 
is  that  of  allowing  the  payment  of  debts  to  an  agent  of  an  alien  enemy,  where 
such  agent  resides  in  the  same  State  with  the  debtor."  Bradley,  J.,  in  New 
York  Life  Insurance  Co.  v.  Davis,  95  U.  S.  425,  429. 


valid  against  the  iiotit  a  seal,  if  done  by  the  partner,  or  by 

;  "■"  "  ■••:'••   '       .  .,;  .appointment,   would  be  void  if  executed  by 

point,  I  think  a  nice  discrimination  is  reqiiired.   I 

.'  a  to  be  this:  that  if  the  bon  ues 

;'  y  -St  be  vi?Ae  th*?  evidence  of  '  the 

I  or  the 

-/■-  are  es- 

rent,  the  securi^  v.    3  Kent's 

re  the  objectiori  ^'^nents  is, 

ted  by  virtue  oi  one  of 

r.  The  onlv  materia!  •,,-:  on  .  ..4n 

nr.  or  by  the  authority  of  the  t\:  lal 

e  an  agent  in  any  form  to  cl  .vhat  m- 

r  how  can  it  be  material  th  '*-^-  was 

isary  solemnity?  The  ac:  ire 

-■'-:d  have  but  the  same  1...^-.  ....,..,.  ....   ..  ...-  au- 

i  in  any  other  way-   It  is  usual  and  necessary 

M    .ikichandise  should  have  agents  or  clerks,   with 

'  •!  present  them  generally.   The  act  of  signing  notes. and 

ments  in  the  partnership  transactions,  is  a  power  fall- 

V  usual  scope  of  mercantile  dealings;  each  partner  can 

buy  .  :artnership  effects,  and  make  contracts  in  reference  to 

tlie  1;  '  tijr  fi rni.  and  pay  and  receive,  and  draw  and  indorse 

Garard  v.  Basse,  i  Dallas  R.  1 19 ;  3  Kent's 
...-.v.-  inere  given.    Hence,  I  am  of  opinion  that 
f  Fort,  and  his  acts  as  attorney  in  signing  and  in- 
valid, and  tantamount  to  an  appointment  by 
rm ;  and  that  so  much  of  the  power  ?.«  f^ve  it 
■  was  unnecessar  egular  r  ■  !  to 

ige  which  does  r  e.    The  -    to 

manner  to  accept  service  of  the  writs  is  more  ques- 


-Who  cai?  be  Agent 


1 E  Court  of  Alabama,    45  Ala.  656. 

c  Co..  of  Richmond,  Va.,  owned  some  cotton  m 

their  agent,  Erowder,  who  had 

on,  of  Ouincv,  TIL,  who  oh«-;rined 


'igiiially 

:  of  debtor  and 
cipal  and  agent, 

ng  any.  dealings 
r  either  of  them 
'.  the  title  to  the 

the 


>F  DAF 


er  dele- 


•1  the  nature 

lAMiiy,  or,  being 

at  he  niav  make 

'  ' "   '  • the 
.iies' 

+23;  ^9 


.AH':  c'cjaHuy  re- 
peal, the  author- 
ihe  serv- 
.ould  be 

or  by  corre?r»on<t- 

■t  with  tl' 
1  the  boc: 


AGENT.  39 

valid  against  the  firm  without  a  seal,  if  done  by  the  partner,  or  by- 
agent  under  a  parol  appointment,  would  be  void  if  executed  by 
specialty.  On  this  point,  I  think  a  nice  discrimination  is  required.  I 
take  the  distinction  to  be  this :  that  if  the  bond  or  deed  constitutes 
the  contract,  it  must  be  made  the  evidence  of  it,  and  determines  the 
remedy ;  then  this  principle  applies,  because  the  legal  effect  of  the 
contract,  the  power  of  the  remedy,  and  the  rules  of  evidence  are  es- 
sentially different,  the  security  being  of  higher  dignity.  3  Kent's 
Com,  24.  Here  the  objection  relative  to  the  sealed  instruments  is, 
that  agents  acted  by  virtue  of  powers  created  under  seal  by  one  of 
the  partners.  The  only  material  question  is,  did  those  agents  act  with 
the  consent,  or  by  the  authority  of  the  firm?  If  one  partner  had 
power  to  constitute  an  agent  in  any  form  to  do  these  acts,  what  in- 
jury can  result,  or  how  can  it  be  material  that  the  authority  was 
given  with  unnecessary  solemnity?  The  acts  done  by  the  agents  are 
in  the  same  form,  and  have  but  the  same  legal  effect,  as  if  the  au- 
thority had  been  given  in  any  other  way.  It  is  usual  and  necessary 
that  partners  in  merchandise  should  have  agents  or  clerks,  with 
authority  to  represent  them  generally.  The  act  of  signing  notes  and 
giving  indorsements  in  the  partnership  transactions,  is  a  power  fall- 
ing within  the  usual  scope  of  mercantile  dealings ;  each  partner  can 
buy  and  sell  partnership  eft'ects,  and  make  contracts  in  reference  to 
the  business  of  the  firm,  and  pay  and  receive,  and  draw  and  indorse 
and  accept  bills  and  notes.  Garard  v.  Basse,  i  Dallas  R.  119 ;  3  Kent's 
Com.  17,  and  references  there  given.  Hence,  I  am  of  opinion  that 
the  appointment  of  Fort,  and  his  acts  as  attorney  in  signing  and  in- 
dorsing the  notes  are  valid,  and  tantamount  to  an  appointment  by 
both  members  of  the  firm ;  and  that  so  much  of  the  power  as  gave  it 
the  character  of  a  deed  was  unnecessary  and  irregular  and  ought  to 
be  treated  as  surplusage  which  does  not  vitiate.  The  authority  to 
Kenan  in  like  manner  to  accept  service  of  the  writs  is  more  ques- 
tionable.^ 


Section  2. — Who  can  be  Agent. 

LYON  &  CO.  V.  KENT,  PAYNE  &  CO. 

1871.    Supreme  Court  of  Alabama.    45  Ala.  656. 

Kent,  Payne  &  Co.,  of  Richmond,  Va.,  owned  some  cotton  in 
Alabama.  They  gave  an  order  on  their  agent,  Browder,  who  had 
charge  of  the  cotton,  to  one  Singleton,  of  Ouincy,  111.,  who  obtained 

'  See  Paton  v.  Baker,  62  Iowa  704. 

Regarding  the  rights  of  a  tenant  in  common  to  be  principal,  see  Sewell  v. 
Holland,  6r  Ga.  608. 


40  COMPETENCY   OF   PARTIES. 

possession  of  the  cotton.  Singleton  sold  the  cotton  to  Guy,  who 
stored  it  in  the  warehouse  of  Lyon  &  Co.  Kent,  Payne  &  Co.,  be- 
lieving that  Singleton  had  no  authority  to  sell  it,  brought  this  action 
of  detinue  against  Lyon  &  Co.  for  the  cotton.  In  the  trial  court  the 
plaintiffs  had  judgment. 

Peters,  J. — The  charge  given  by  the  court,  of  its  own  motion, 
on  the  trial  below,  and  excepted  to  by  the  defendants,  was  correct. 
The  only  negotiation  that  Singleton  had  with  the  firm  of  Kent,  Payne 
&  Co.,  touching  the  cotton,  took  place  in  January,  1865,  at  Richmond, 
Va.  If  there  was  a  sale  at  all,  or  any  contract  entered  into  between 
Singleton,  a  citizen  of  Illinois,  and  Kent,  Payne  &  Co.,  citizens  of 
A^irginia,  bv  which  any  title  or  interest  in  the  cotton  was  attempted 
to  be  passed  from  one  to  the  other,  it  was  wholly  void  and  incapable 
of  ratification.  No  trading  between  these  parties  was  then  allow- 
able, without  a  permit  of  the  government.  And  the  president's  pass 
was  not  sufficient  for  that  purpose.  McKee  v.  United  States,  8  Wall. 
163,  166;  The  Ouachita  Cotton,  6  Wall.  521,  531 ;  Brown  v.  Tarkin- 
ton,  3  Wall.  377,  381 ;  Kennett  v.  Chambers,  14  How.  38,  50.  Then, 
the  order  alone  warned  all  who  looked  upon  it,  who  knew  the  domi- 
cil  of  the  parties  to  it,  that  it  could  not  be  evidence  of  a  legal  title. 
And  it  was  not,  unconnected  with  other  proof,  a  power  to  sell  or 
dispose  of  the  cotton. 

Yet,  though  the  order  of  itself  was  not  evidence  of  a  sale  to  Single- 
ton, or  a  power  to  sell,  it  shows  that  the  owners  of  the  cotton  had  au- 
thorized him  to  take  possession  of  it.  This  he  could  do  as  the  agent 
of  the  owners.  This  was  not  forbidden  to  him  or  to  them  by  law, 
or  the  policy  of  the  government.  They  could  change  the  agency  or 
the  custody  of  their  cotton  from  one  person  to  another.  And  they 
could  make  any  person,  capable  of  acting  as  an  agent,  such  agent  to 
take  possession  of  their  property  for  them,  and  keep  it  for  them. 
They  could  transfer  its  custody  from  Browder  to  Singleton  without 
a  violation  of  law.  The  objection  which  might  be  supposed  to  exist 
to  such  an  agency  during  the  war  ceased  as  soon  as  the  war  was 
ended ;  and  its  purpose  being  then  legal,  it  might  be  legally  consum- 
mated. Any  one,  except  a  lunatic,  imbecile,  or  child  of  tender  years, 
may  be  an  agent  for  another.  It  is  said  by  an  eminent  author  and 
jurist  that,  'Tt  is  by  no  means  necessary  for  a  person  to  be  siii  juris, 
or  capable  of  acting  in  his  or  her  own  right,  in  order  to  qualify  him- 
self or  herself  to  act  for  others.  Thus,  for  exaniple,  monks,  infants, 
femes  covert,  persons  attainted,  outlawed  or  excommunicated,  villains 
and  aliens,  may  be  agents  for  others."  Story's  Agency,  §§  6,  7,  9. 
So,  a  slave,  who  is  homo  non  civilis,  a  person  who  is  but  little  above 
a  mere  brute  in  legal  rights,  may  act  as  the  agent  of  his  owner  or  his 
hirer.  Powell  v.  The  State,  27  Ala.  51 ;  Stanley  v.  Nelson,  28  Ala. 
514.  It  was,  then,  certainly  not  unlawful,  or  against  the  public  policy 
of  the  nation,  for  Kent,  Payne  &  Co.  to  keep  their  cotton,  and  keep  it 
safely,  during  the  late  rebellion.     It  is  the  undoubted  law  of  agency, 


itiother  what  be  covild  do  himself  in 

■  osi-  and  h: 

\ng  in  ai.  'y 

law,  done  by  the  princ;  id 


of  deb"  'le's  bon'i, 

iLift  in  eiroi  a.i^ainst  the  c:  a- 

■nd  and  condition,  and  c!^  ,  -, 

e  breach  averring  that  the  defendant,  Daily,  as 

.    ......e  of  a  writ  of  seizure,  issued  by  a  justice  of  the 

'1  a  complaint  in  the  nature  of  a  libel  against  a  flatboat 

yeole.  did  ^  '      '       ,:id  boat  into  his  posses- 

i  the  libel  \\  .  ed,  and  the  said  Daily 

surrender  and  Uclrvci  up  tUv;  i.aid  boat  to  Feny,  the  person 

use  this  suit  was  brought.   It  appears  by  a  bill  of  excep- 

nat  prior  to  the  seizure  the  boat  had  been  in  the  actual  pos- 

'  of  a  slave  of  Feny,  called  Jim,  and  that^  at  the  time  it  was 

the  boat  was  in  possession  of  said  slave  and  a  white  man  em- 

by  the  owner.    That   '^^    '     had  intrusted  the  custody  of  the 

>  the  lihclbint,  as  hi  who,  after  the  discharge  of  the 

lave,  Jim,  m  i^ight  of  the  boat,  said  to  him,  "Jim, 

The  court  charged  the  jury  that  if  the  boat 

iider  tije  management  of  said  slave,  and  was  in  his  posses- 

i'^iu-'  (  r  fl.:.    ^fi/iiTv-    n  iieHvi  r\-  in  !iim  was  a  sufficient 

-ression  above  used 
u)  iiir  ^i.-v.-  .;■  i;,-,  jn^.  ~,..,:  ,,,  ^iw;-^;--  lon  of  the  boat,  and 
ed  by  him  as  a  delivery,  and  an  authority  to  said  slave 
^session  of  the  boat,  then  the  expression  amounto  ' 

n  error  that  th  is  ei- 

^        _  J  ;  thar  it  w-'-  r;;  ..!.  vwd 

lislead  the  jury. 

^n  by  the  plaintiff's  l^u.  .•  r■l.■^^^,  .,.,n>.^ 

.  be  maintained.    In  Cha-  'owman,  i  Hill 


lit Liie   iUa^LCr    l.S    :U. 

■":  fo  I'^is  command.    ] 


Guy,  who 
&  Co.,  be- 
this  action 


own  nioLion, 
v.%Ts  correct. 

•  o , 
•  en 


the  domi- 

■  -  -;  al  title. 

sell  or 


:k1  they 
I  gent  to 
:■  them. 


"IS. 

[y  ium- 
infants, 
villains 

'3,  7,  9- 
c  above 


AGENT.  41 

that  a  person  may  do  through  another  what  he  could  do  himself  in 
reference  to  his  own  business  and  his  own  property,  because  the 
agent  is  but  the  principal  acting  in  another  name.  The  thing  done  by 
the  agent  is,  in  law,  done  by  the  principal.  This  is  axiomatic  and 
fundamental.  It  needs  no  authorities  to  support  it.  Qui  facit  per 
fllium  facit  per  se.^     '■'     "^^     * 


THE  GOVERNOR  v.  DAILY. 

1848.    Supreme  Court  of  Alabaaia.     14  Ala.  469. 

Chilton,  J. — This  was  an  action  of  debt,  on  a  constable's  bond, 
brought  by  the  plaintiff  in  error  against  the  defendant.  The  declara- 
tion sets  out  the  bond  and  condition,  and  assigns  several  breaches, 
among  which  is  one  breach  averring  that  the  defendant,  Daily,  as 
constable,  by  virtue  of  a  writ  of  seizure,  issued  by  a  justice  of  the 
peace,  upon  a  complaint  in  the  nature  of  a  libel  against  a  fiatboat 
called  the  Creole,  did  seize  upon  and  take  said  boat  into  his  posses- 
sion. That  the  libel  was  afterwards  dismissed,  and  the  said  Daily 
refused  to  surrender  and  deliver  up  the  said  boat  to  Feny,  the  person 
for  whose  use  this  suit  was  brought.  It  appears  by  a  bill  of  excep- 
tions that  prior  to  the  seizure  the  boat  had  been  in  the  actual  pos- 
session of  a  slave  of  Feny,  called  Jim,  and  that  at  the  time  it  was 
seized,  the  boat  was  in  possession  of  said  slave  and  a  white  man  em- 
ployed by  the  owner.  That  Daily  had  intrusted  the  custody  of  the 
boat  to  the  libellant,  as  his  baihff,  who,  after  the  discharge  of  the 
boat,  meeting  the  slave,  Jim,  in  sight  of  the  boat,  said  to  him,  "Jini, 
there  is  your  boat."  The  court  charged  the  jury  that  if  the  boat 
had  been  under  the  management  of  said  slave,  and  was  in  his  posses- 
sion at  the  time  of  the  seizure,  a  delivery  to  him  was  a  sufficient 
delivery  to  its  owner.  Further,  that  if  the  expression  above  used 
was  made  to  the  slave  by  the  person  in  possession  of  the  boat,  and 
was  designed  by  him  as  a  delivery,  and  an  authority  to  said  slave 
to  take  possession  of  the  boat,  then  the  expression  amounted  to  a 
delivery. 

I.  It  is  insisted  by  the  plaintiff  in  error  that  this  charge  is  er- 
roneous, as  an  abstract  proposition ;  that  it  was  not  pertinent,  and 
was  calculated  to  mislead  the  jury. 

The  position  taken  by  the  plaintiff's  counsel,  that  a  slave  cannot 
be  an  agent,  cannot  be  maintained.  In  Chastain  v.  Bowman,  i  Hill 
270,  it  is  held,  the  master  may  constitute  his  slave  his  agent,  and  that 
there  is  no  condition,  however  degraded,  which  deprives  one  of  the 
right  to  act  as  a  private  agent — the  master  is  liable  even  for  the  act 
of  his  dog,  done  in  obedience  to  his  command.    Perhaps  there  are  no 

^A  portion  of  the  opinion  is  omitted. 


42  COMPETENCY   OF   PARTIES. 

persons  capable  of  comprehending  an  authority,  or  acting  in  pur- 
suance thereto,  who  may  not  be  constituted  agents.  Thus  it  is  said 
infants,  married  women,  persons  attainted,  outlawed,  excommuni- 
cated, aliens,  etc.,  may  be  constituted  attorneys,  i  Livermore  on  Ag. 
32,  33  ;  Co.  Lit.  52,  a.  Neither  is  it  necessary,  in  order  to  prove 
the  agency,  to  show  an  express  delegation  of  authority,  but  the 
agency  may  be  inferred  from  the  nature  of  the  employment.  So  in 
the  present  case,  if  the  slave,  Jim,  had,  as  the  agent  of  his  owner, 
control  of  the  boat,  and  was  in  the  actual  possession  at  the  time  of  the 
seizure,  his  agency  is  presumed  to  continue,  and  a  return  of  the  boat 
might  well  have  been  made  to  him.  If,  in  the  meantime,  his  owner 
had  assigned  him  another  occupation,  this  would  be  evidence  of  a 
revocation  of  his  authority.  But  the  charge,  although  correct  in  this 
respect,  is  clearly  wrong  when  it  assumes  the  equivocal  expression, 
"Jim,  there's  your  boat,"  if  designed  by  the  bailiff  as  an  authority  to 
the  servant  to  take  the  boat,  amounted  to  a  delivery,  whether  so 
understood  by  the  servant  or  not.  The  expressions  used  amount  to 
a  mere  pointing  out,  or  a  designation  of  the  boat,  and  disconnected 
from  all  other  facts,  confer  no  warrant  on  the  slave  to  take  posses- 
sion. The  question  whether  there  was  a  delivery  was  one  of  fact,  and 
the  jury  could  alone  judge  whether  the  evidence  sufficiently  proved  it. 
As  the  intention  or  design  of  the  bailiff  to  make  a  delivery  of  the  boat 
was  not  apparent  from  the  language  used,  it  follows  no  delivery  was 
made,  unless  the  servant  was  apprized  of  the  design  and  intention  to 
make  it,  by  the  terms  employed.^  *  *  * 
Judgment  reversed  and  cause  remanded.^ 


TALBOT  V.  BOWEN. 
1819.     Court  of  Appeals  of  Kentucky,     i  A.  K.  Marsh.  436. 

On  a  writ  of  error  to  reverse  a  decree  of  the  Henderson  circuit 
court. 

Owsley,  J. — This  suit  was  brought  in  chancery  by  Bowen,  to 
obtain  a  title  to  a  moiety  of  a  lot  of  ground  in  the  town  of  Henderson, 
the  equity  whereof  is  asserted  by  him  through  a  certain  William 
Featherston,  who,  it  is  alleged,  purchased  it  from  the  son  and  agent 
of  Talbot. 

^  A  portion  of  the  opinion  not  dealing  with  the  subject  of  Agency  is  omitted. 

"  "Where  the  overseer  of  a  slave  goes  to  a  house  where  spirituous  liquors  are 
kept  for  sale,  and  tells  the  keeper  that  he  will  send  the  slave  for  a  specified 
quantity  of  a  particular  quality,  and  goes  off  and  sends  the  slave  with  a  jug 
for  the  same;  and  thereupon  the  keeper  puts  it  in  the  jug,  and  delivers  it  to 
the  slave,  the  transaction  is,  in  legal  contemplation,  the  sale  and  delivery  of 
the  liquor  to  the  overseer.  The  slave,  in  such  case,  is  merely  the  instrument 
of  the  overseer."    Rice,  J.,  in  Powell  v.  State,  27  Ala.  51,  52. 


The  ^nrcb5?e  of  Featbe^'st'^n  is  admitted  r>v  the  ^n«wer  of  T^lhot 


quacy  of  tlie  consideratiou  for  whie  oecitic 

execution  of  the  contract  ought  not 

On  a  final  hearing,  the  court  bel.  lat  Bowen 

was  entitled  to  relief,  pi  '       '  '"''      'S, 

and  ornfripp-.them  to  < 


the  propriety  of  aecree  \- 

denre  in  writing  o''  '^ 
s    ■     ■  Talbot. 

Ab  the  contract  wa     lor  un.   >aa:  tn   hmm.  u"- 
according  to  the  plain  and  obvious  import  of 
frauds  and  perjuries,  that  Talb  ■ 
dence  of  the  <-f'i-^.  of  sale;  but 
done  i'  lian  by  lying  tti 

or  rely'__.     ;       .   .  .ute.,  in  hi.  .  ,i. 

Upon  a  denial  of  the  sale,  as  it  would  have  devolved  upon  Bowen 

'     '  v-'^  proven  it,  the  evidence  should,  no  doubt,  to  authorize  a  decree 

favor,  conform  to  the  reauisitions  of  the  statute ;  or  upon  the 

I  on  in  the  answer,  then,  as  evi- 
;  dUced,  proof  of  its  terms  having 

-Id,  most  clearly,  be  essentially  necessary 

e  present  case,  as  the  purchase  of  on  is  admittel 

-r-  ,-,■'  T-jjijot,  and  as  the  statute  is  n-  -  .^   ...J  upon  b-'-  i-''- 
the  purpose  of  proving  the  sale  or  taking. 
oi  i:;r  '  '       '■  '          '     e  any  ■-i\"i- 

dence  ire,  there- 

efstous  purchase, 

le  authority  of  Talbot's  son  i.  \  it  is  also 

hat  evidence  '^^  '*^- ■  -  '^^  .  ->  ,,:     have  been 

■  but  it  is  n:  rity  should  be 

•  '  ■   been  in  wnrnig.      i  n.i;   :'■    iiMuc  :;ic  sale  obligatory 

i.  >  '^on  mu«:t  have  been  clothed  with  pou'er  to  sell,  is 

•  ed  ;  but  of  the 

^er  the  .  either 

irol,  and  the  statute  against  frauds  and  perjuries  ]i. 

1  ■  ..   r-'diirr    '*■  -^n  W-   in   n,--.?*-"i  i  <•■- 

V  or  in  writing,  l-* 


.  r 

iimg  in  pui 
hus  it  is    ■■ 
excom; 


but    th 

..::[-.     So  1 

^nt  of  his  ownc 


•take  p 


'fnr^h. 


;icy  is  omitted. 

ious  liquors  are 

;i;ive  for  a  specified 

:lie  slave  with  a  incf 


AGENT.  43 

The  purchase  of  Featherston  is  admitted  by  the  answer  of  Talbot, 
but  the  authority  of  his  son  to  sell  the  land  is  denied ;  and  if  author- 
ized, it  is  contended  that,  owing  to  his  son's  infancy,  and  the  inade- 
quacy of  the  consideration  for  which  the  sale  was  made,  a  specific 
execution  of  the  contract  ought  not  to  be  inferred. 

On  a  final  hearing,  the  court  below  being  of  opinion  that  Bowen 
was  entitled  to  relief,  pronounced  a  decree  appointing  commissioners, 
and  ordering  them  to  convey  the  lot,  without  making  their  convey- 
ance depend  upon  the  failure  of  Talbot  to  execute  a  deed. 

The  main  objection  taken  to  the  relief  sought  in  the  bill  involves 
the  propriety  of  decreeing  an  execution  of  the  contract,  without  evi- 
dence in  writing  of  the  terms  of  Featherston's  purchase  from  the 
son  of  Talbot. 

As  the  contract  was  for  the  sale  of  land,  there  is  no  doubt  but, 
according  to  the  plain  and  obvious  import  of  the  statute  against 
frauds  and  perjuries,  that  Talbot  might  have  required  written  evi- 
dence of  the  terms  of  sale ;  but  this  we  apprehend  could  have  been 
done  in  no  other  way  than  by  either  denying  the  sale,  or  pleading, 
or  relying  upon  the  statute,  in  his  answer. 

Upon  a  denial  of  the  sale,  as  it  would  have  devolved  upon  Bowen 
to  have  proven  it,  the  evidence  should,  no  doubt,  to  authorize  a  decree 
in  his  favor,  conform  to  the  requisitions  of  the  statute ;  or  upon  the 
statute  being  either  pleaded  or  relied  on  in  the  answer,  then,  as  evi- 
dence of  the  sale  should  also  be  introduced,  proof  of  its  terms  having 
been  reduced  to  writing,  would,  most  clearly,  be  essentially  necessary 
to  entitle  Bowen  to  relief. 

But  in  the  present  case,  as  the  purchase  of  Featherston  is  admitted 
by  the  answer  of  Talbot,  and  as  the  statute  is  not  relied  upon  by  him, 
it  cannot,  either  for  the  purpose  of  proving  the  sale  or  taking  it  out 
of  the  statute,  have  been  necessary  for  Bowen  to  introduce  any  evi- 
dence whatever  in  relation  to  the  terms  of  sale.  The  failure,  there- 
fore, to  manifest  by  writing  the  terms  of  Featherston's  purchase, 
affords  no  objection  to  the  relief  sought  by  Bowen. 

But  as  the  authority  of  Talbot's  son  is  expressly  denied,  it  is  also 
contended  that  evidence  of  his  authority  should  not  only  have  been 
introduced,  but  it  is  moreover  urged  that  the  authority  should  be 
shown  to  have  been  in  writing.  That  to  make  the  sale  obligatory 
upon  Talbot,  his  son  must  have  been  clothed  with  power  to  sell,  is 
a  proposition  not  to  be  controverted  ;  but  as  respects  the  justice  of  the 
case,  it  cannot  be  material  whether  the  authority  was  created  either 
by  writing  or  parol,  and  the  statute  against  frauds  and  perjuries  has 
never  been  held  to  require  it  to  be  in  writing. 

And  that  the  son  was  authorized,  either  verbally  or  in  writing,  to 
make  the  sale,  from  the  circumstances  detailed  in  evidence,  there  is 
no  room  for  a  moment  to  doubt. 

And  if  authorized,  according  to  the  settled  doctrine  of  the  law,  his 
being  an  infant  can  afford  no  objection  against  the  liability  of  Tal- 


44  COMPETENCY    OF    PARTIES. 

bot ;  for  although  the  contracts  of  infants  are  not,  in  all  cases,  bind- 
ing upon  them,  there  is  no  doubt  but,  as  they  may  act  as  agents, 
their  contracts,  made  in  that  character,  if  otherwise  unexceptionable, 
will  be  binding  upon  their  principal. 

With  respect  to  the  inadequacy  of  the  consideration  relied  upon 
by  Talbot,  it  need  only  be  remarked  that  the  evidence  conduces  satis- 
factorily to  prove  that  the  full  value  of  the  lot  .at  the  time  of  its  sale 
was  given  for  it  by  Featherston. 

Upon  the  whole,  we  are  satisfied  that  Bowen  is  entitled  to  a  spe- 
cific execution  of  Featherston's  purchase;  but  we  are  of  opinion 
that  it  was  irregular  to  direct  the  commissioner  to  convey,  without 
giving  Talbot  a  previous  day  to  do  so.  For  that  irregularity,  there- 
fore, the  decree  must  be  reversed  with  cost,  the  cause  remanded  to 
the  court  below,  and  a  decree  there  entered  according  to  the  prin- 
ciples of  this  opinion.^ 


JENKINS  V.  FLINN. 
1871.    Supreme  Court  of  Indiana.    37  Ind.  349. 

This  was  an  action  by  Jenkins,  as  assignee  in  bankruptcy,  against 
Elijah  Flinn  and  his  wife,  Charlotte,  for  the  price  of  certain  goods 
sold  to  the  wife  by  the  bankrupts  but  charged  to  the  husband.  The 
question  was  whether  an  agency  might  be  inferred,  on  the  part  of 
the  wife,  for  the  husband,  so  as  to  make  him  liable  for  the  goods. 

Downey,  J.  (After  stating  the  facts.)  Was  this  evidence  suf- 
ficient to  show  a  legal  liability  on  the  part  of  the  husband  to  pay  for 
the  goods  ?  According  to  the  common-law  rule,  the  earnings  of  the 
wife  are  always  the  property  of  the  husband  just  as  much  as  are  the 
earnings  of  his  own  hands.  Bishop  Married  Women,  §§  21,  212, 
886 ;  Baxter  v.  Prickett's  Adm'r,  27  Ind.  490.  He  was  entitled  to  her 
earnings,  because  he  was  bound  for  her  support,  and  this  whether 
she  earned  much  or  little.    Bishop  Mar.  Women,  §  887. 

If  she  engage  in  any  trade  or  business,  the  profits  of  such  trade  or 
business  belong  to  the  husband,  for  they  are  as  much  the  earnings 
of  the  wife  as  any  other  income  produced  by  her  labor  or  skill.  Id., 
§  733  ;  Switzer  v.  Valentine,  4  Duer  96. 

This  rule  is  still  in  force  in  Indiana  as  a  part  of  the  common  law. 
The  statute  provides  that  the  lands  of  a  married  woman  and  the 
profits  thereof  shall  be  her  separate  property  as  fully  as  if  she  was 
unmarried,  i  G.  &  H.  374,  §  5.  It  is  also  provided  that  "the  per- 
sonal property  of  the  wife  held  by  her  at  the  time  of  her  marriage, 
or  acquired  during  coverture,  by  descent,  devise,  or  gift,  shall  re- 

^  Compare  Bennett  v.  Gillette,  3  Minn.  309. 

In  Widrig  v.  Taggart,  51  Mich.  103,  it  was  held  that  an  infant  was  not  liable 
to  his  employer  for  breach  of  the  contract  of  employment. 


45 

it  and  under  the  same  rules 

nd  be- 

yn  the 

i/e  before  i  in  the 

s  her  real  e..  ..„  under 

istances."    Acts  note  to  p.  295. 

/ill  be  seen  that  .  ^o  such  per- 

>f  the  wife  as  si  carriage  or 

^'^  the  CO  '5  ieav- 

ik,  the  --^  hiis- 


•  it  if  the  wife  enga.Cfed  in  ira  g-oods 
sold  in  such  tra<^"  *•''•"■  ■■'^"'  ^'  the 
s  purchased  wit:  ro 

1.     Switzer  v-   \  ait:nr.i]i.',  s:i['^nj  ^.-lanii  >-.    i cung- 
Lovett  V.  Pohinson,  7  How.  Pr.  105. 
-  her  se;  .perty  as  fully  as  if  she  was  un- 

e  she  m.  -  in  and  carry  on  business  there- 

assent  of  the  husband,  and  be  entitled  to  the  profits 
....  make  a^   i"  "'"-'-ease  of  her  separate  estate.    But  she 
.1  herself  f*  purchased  as  a  feme  sole  can  do. 

V.  Specker,  ju  iiii.  413. 

lie  wife  engages  in  business,  with  the  knowledge  and  con- 

^  the  business  is  ^e  husband, 

ut,  and  he  as  bd  ace  of  con- 

.  >  may  make  relating  to  such  business.    Abbott  v.  Mac- 

-.  220;  Glann  v.  V,Mir,.v;ra  ,■    .■■.h>-a;  Cropsey  v.  Mc- 

rb.  47;  Mackinl.  Whart.  368;  God- 

M.txs.  5  Harring.   (L<  :.,   j^j,]  jvctcii  v.  Miles,  2  Conn. 

or  V.  Valentine,  suhra;  Chitty  Con.,  184;  2  Bright  Hus. 

ln?t  stated,  it  seems  to  be  satisfac- 
c-u  by  tiie  cases  rre  the  wife  incurs  the  in- 

•1  the  credit  is  ^: iier  ev>]ir,ively,  and  where, 

*  can  be  no  presumption  thr,  -;  acting  as  the 
'■'■-"-'  •— 1  •   ^'-  ^'-^ ^'              ,,,ii)le.     Bentley  v. 

106;  Moses  V.  For- 
:?.  <_.J  355 ;  :^'\vcu  V.  i'cuncc,  -;4  I^Iiss.  416. 
Mpon  which  the  husband  is  bound  to  pay  for  nece-- 
y  the  wife  is  that  the  wife  is  his  agent  " 
>ing  such  articles  as  may  be  necessar/  \\\ 
r.    Litson  v.  Brown,  26  Ind.  48*:; 
,,,;,,=  fVie  facts  of  the  case  undc 
'iitions.  we  find  that  bv  t' 


I  cases,  bind- 

act  as  agents, 

unexceptionable. 

ition  relied  upor^ 
:e  conduces  satis- 

;:■  time  of  its  s.il. 


'-■  are  o*. 


nd.     The 


.;.S   Ol    lilC 

s  are  the 

21,    212, 

:  ...led  to  her 
this  whether 


....  common  law. 

■>:  woman  and  the 

L    i  ally"  as  if  she  was 

ivided  that  "the  per- 

of  her  niarriag^e, 

or  pfift.  <-ha]l  re- 


AGENT.  45 

main  her  own  property  to  the  same  extent  and  under  the  same  rules 
as  her  real  estate  so  remains ;  and  on  the  death  of  the  husband  be- 
fore the  wife,  such  personal  property  shall  go  to  the  wife,  and  on  the 
death  of  the  wife  before  the  husband,  shall  be  distributed  in  the 
same  manner  as  her  real  estate  descends,  and  is  apportioned  under 
the  same  circumstances."  Acts  1853,  p.  57,  copied  in  note  to  p.  295, 
I  G.  &  H.  It  will  be  seen  that  this  statute  reached  only  to  such  per- 
sonal property  of  the  wife  as  she  had  at  the  time  of  the  marriage  or 
acquired  during  the  coverture  by  descent,  devise,  or  gift,  thus  leav- 
ing, as  we  think,  the  common-law  rule  with  reference  to  the  hus- 
band's right  to  the  wife's  earnings  unchanged.  Baxter  v.  Prickett's 
Adm'r,  supra. 

It  follows  that  if  the  wife  engaged  in  trade  and  purchased  goods 
to  be  used  or  sold  in  such  trade,  they  became  the  property  of  the 
husband,  unless  purchased  with  money  acquired  and  belonging  to 
her  as  above  stated.  Switzer  v.  Valentine,  supra;  Glann  v.  Young- 
love,  27  Barb.  480;  Lovett  v.  Robinson,  7  How.  Pr.  105. 

As  the  wife  holds  her  separate  property  as  fully  as  if  she  was  un- 
married, we  suppose  she  may  engage  in  and  carry  on  business  there- 
with, with  the  assent  of  the  husband,  and  be  entitled  to  the  profits 
which  she  may  make  as  an  increase  of  her  separate  estate.  But  she 
cannot  bind  herself  for  goods  purchased  as  a  feme  sole  can  do. 
Hasheagen  v.  Specker,  36  Ind.  413. 

Where  the  wife  engages  in  business,  with  the  knowledge  and  con- 
sent of  the  husband,  the  business  is  regarded  as  that  of  the  husband, 
the  ^vife  as  his  agent,  and  he  as  bound  for  the  performance  of  con- 
tracts which  she  may  make  relating  to  such  business.  Abbott  v.  Mac- 
kinley,  2  Miles  220;  Glann  v.  Younglove,  supra;  Cropsey  v.  Mc- 
Kinney,  30  Barb.  47;  Mackinley  v.  M'Gregor,  3  Whart.  368;  God- 
frey V.  Brooks,  5  Harring.  (Del.)  396;  kotch  v.  Miles,  2  Conn. 
638;  Switzer  v.  Valentine,  supra;  Chitty  Con.,  184;  2  Bright  Hus. 
and  Wife,  300,  §  20. 

As  a  qualification  of  the  rule  last  stated,  it  seems  to  be  satisfac- 
torily established  by  the  cases  that  where  the  wife  incurs  the  in- 
debtedness, and  the  credit  is  given  to  her  exclusively,  and  where, 
therefore,  there  can  be  no  presumption  that  she  was  acting  as  the 
agent  of  the  husband  merely,  the  husband  is  not  liable.  Bentlev  v. 
Griffin,  5  Taunt.  356 ;  Carter  v.  Howard,  39  Vt.  106 ;  Moses  v.  For- 
gartie,  2  Hill  (S.  C.)  355  ;  Swett  v.  Penrice,  24  Miss.  416. 

The  theory  upon  which  the  husband  is  bound  to  pay  for  neces- 
saries purchased  by  the  wife  is  that  the  wnit  is  his  agent  for.  the 
purpose  of  purchasing  such  articles  as  may  be  necessary  while  the 
parties  live  together.     Litson  v.  Brown,  26  Ind.  489. 

Proceeding  to  examine  the  facts  of  the  case  under  consideration, 
in  view  of  these  legal  propositions,  we  find  that  by  the  evidence  it  is 
shown  that  the  husband  knew  that  the  wife  was  engaged  in  business, 
to  some  extent  he  derived  a  profit  from  the  business,  the  wife  sup- 


46  COMPETENCY   OF    PARTIES. 

porting  herself  and  contributing  to  the  support  of  the  children, 
which,  otherwise,  he  would  have  been  compelled  to.  He  had  paid 
$550  of  her  debts,  but  whether  on  account  of  this  business  or  not  is 
not  shown. 

On  the  other  hand,  it  is  shown  by  the  agreed  statement  of  facts 
that  she  received  the  goods  and  agreed  to  pay  for  them ;  and  he  testi- 
fies that  he  never  bought  anything  of  the  plaintiffs  nor  ever  agreed 
to  pay  them  anything;  that  he  never  saw  the  bill  of  the  goods  or 
knew  of  their  purchase.  It  is  not  shown  that  the  credit  was  given 
to  the  husband,  or  even  that  the  plaintiffs  knew  that  there  was  any 
such  person  in  existence. 

After  some  hesitation,  and  without  any  very  firm  conviction  that 
we  are  right,  we  have  come  to  the  conclusion  that  we  ought  to  hold 
that  the  credit  in  this  case  was  given  to  the  wife,  and  that  we  cannot 
infer  from  the  circumstances  an  agency  in  the  wife  and  a  liability 
of  the  husband. 

Judgment  affirmed,  with  costs. ^ 


KILLINGSWORTH  v.  PORTLAND  TRUST  COMPANY. 

1890.     Supreme  Court  of  Oregon.     18  Ore.  351. 

Lord,  J. — This  is  an  action  to  recover  damages  for  failure  of  the 
defendant  to  execute  and  deliver  to  the  plaintiff  a  conveyance  of 
certain  premises,  pursuant  to  an  agreement  to  that  effect.  The  de- 
fendant denies  this,  and  alleges,  as  the  attorney  in  fact  of  one  De- 
borah H.  Ingersoll,  in  compliance  with  said  agreement,  that  it  did 
not  execute  and  tender  to  the  plaintiff  a  conveyance  of  said  premises, 
etc.,  and  now  brings  it  into  court  and  deposits  it  for  the  plaintiff, 
and  that  plaintiff  refuses  to  accept  the  same.  To  this  the  plaintiff 
demurred,  on  the  ground  that  the  same  does  not  state  facts  sufficient 
to  constitute  a  cause  of  defense  to  the  cause  of  action  alleged.  The 
point  raised  by  the  demurrer  is,  can  the  defendant,  a  corporation, 
execute  a  deed  of  conveyance  of  real  property  as  the  attorney  in  fact 
of  another?  In  this  state  the  right  to  become  incorporated  is  se- 
cured by  a  general  law,  and  any  persons  may  avail  themselves  of  it 
by  complying  with  its  provisions.     Corporations  which  owe  their 

^  "A  feme  covert  may  act  as  the  agent  or  attorney  of  her  own  husband,  and 
as  such,  with  his  consent,  bind  him  by  her  contract  or  other  act.  *  *  * 
She  may  act  as  the  agent  of  another  in  a  contract  with  her  husband,  and 
when  she  does,  or  when  she  is  the  mutual  agent  of  her  husband  and  a  third 
person,  her  declarations  may  be  given  in  evidence  by  the  husband,  and  in  his 
favor."    Dixon,  C.  J.,  in  Birdsall  v.  Dunn,  16  Wis.  250,  254. 

"A  married  woman  is  capable  of  being  appointed  and  acting  as  the  agent  of 
a  third  person,  without  the  consent  of  her  husband."  Clopton,  J.,  in  Pullam  v. 
State,  78  Ala.  31,  2>2- 


1  law  must  be  governed  by  it  in  the  mode  of 
0  manner  of  exercis-  powers,  and  in 

conferred.    But  the  e  may  author- 

ot  corporations  for  many  purposes  not  contemplated 
,  law  and  endue  it  with  powers  an.'  rnn.icities  to  be 
sregard  of  its  rules,  or  which  n  ly  extend, 

>[  its  common-law  povi-—         '     "-'  The  meas- 

-lative  power  in  this  r  oy  circum- 

in  the  e  '  -is,  the 

-s  ^.re  i-  2  pro- 

strained  by  the  J:  in  de- 

the  nature  and  c:.    :  .        -  s  con- 

•  1  corporation,  and -the  mode  of  t'f  the  law  of 

.,  whether  a  charter  or  a  statute,  i:..  •I'^'^d;  for 

iwer  except  as  thus  given,  either  exprc  'ental 

)f  the  powers  granted. 

'  by  our  statute  that  a  corporation  may  engage  in  any 
usiness,  pursuit,  or  occupation  (Code,  §  3217), 
^orations  are  affected  with  some  disabihty  when 
of  mcorporation  are  sufficient  for  the  purpose,  there  is 
iiii  occupation  or  business  in  which  it  may  not  engage  in  this 
vactly  as  individuals.    By  its  articles  of  incorporation  the  de- 
t  corporation  is  expressly  authorized  and  empowered  "to  act 
general  or  special  agent,  or  attorney  in  fact,  for  any  public 
ate  corporation,  or  person,  in  the  management  and  control  of 
rate  or  other  property,  its  purchase,  sale,  or  conveyance,  etc." 
icstion  is  made  but  what  the  defendant,  by  its  articles  of  in- 
ition,  has  conferred  upon  it  the  power  to  do  the  act  for  which 
s  claimed  to  be  an  alleged  failure ;  but  the  contention  is  that 
oration,  from  the  nature  of  the  organization  as  an  artificial 
necessitated  to  act  through  agents,  is  inrnpable  ^f  executing 
as  an  attorney  in  fact.    This  argiUTient  '<- 

'.at  there  are  some  thin^r'^.  from  the  le 

•lat  a  corporation  is  :  ',s  liiustra- 

'  file  common  law,  as ..  .     ^  ..-  an  admin- 

executor,  because  its  duties  a  nal  nature  and 

'■'   rated,  or  to  take  an  oath,  wncu  _-j  vecjuired  by  law, 
iig  to  execute  some  duty  or  trust.    But  this  argument 
'liat  a  corporation  may  be  er  1  to  do  by 

•ncapable  of  doing  imder  its  €•  ■  iw  powers, 

created,  its  p<owers,  capacities  atid  modes  of  exercis- 
t  -    d  upon  the  statute.    Nor  is  the  di.sability  in  •^rn-b  r:i-   - 
■  ictcr  which  cannot  be  obviated  by  statute,   f 
,-^,.,;    »u„j.g  gj-g  numerous  instances  in  which  coii-. 
V  empowered  by  statutes  to  administer 
■ '  7. 

was  unable  to  \;-  le  office  of 


PARTIES. 

:    to  the  support  of  the  children, 

been  conipelled  to.    He  had  paid 

•1  account  of  this  business  or  not  is 

the  agreed  statemimt  of  facts 

[or  them  '■- 

stiffs  nv  d 

:>•  bill  of  is  or 

...L  the  crt ;^iven 

the  plaintiffs  knew  that  there  was  any 

hout  anv  very  firm  c  that 


jices  an  agency  in.  the  wife  aitu  a  liability 
ih  costs.  ^ 

IT^AND  T}<  •  )MPANY. 


Inmcrp^    {,\v    r-il'irii   of   thc 

.  e  of 

I  u;  Lis.iL  '.ii  - .  L      J  ue  de- 

Toniey  in  fact  of  one  De- 

-li  .>aid  agTecment,  that  it  did 

1  '"onveyance  of  said  premises. 

^posits  it  for  the  plaintiff, 

me.     To  this  the  plaintiff 

■s  not  state  fact.s  sufficient 

V   ...  ......  ■  .iise  of  action  "  '■  ■■•''     ^^"-' 

is.  can  the  defendant, 

■   as  the  att.  T'ley  m  lacr 

e  incorporated  is  se- 

1  themselves  of  i' 

which  owe  thei'' 

;  nnornr*y  of  her  own  husband,  and 

t  or  other  act.     *     *    * 

with  her  husband,  and 

liusband  and  a  third 

husband,  and  in  his 


ting  as  the  agent  of 

■(■;n     T  ,  in    P'.jllr.in   V. 


AGENT.  47 

existence  to  the  common  law  must  be  governed  by  it  in  the  mode  of 
their  organization,  in  the  manner  of  exercising  their  powers,  and  in 
the  use  of  the  capacities  conferred.  But  the  legislature  may  author- 
ize the  creation  of  corporations  for  many  purposes  not  contemplated 
by  the  common  law  and  endue  it  with  powers  and  capacities  to  be 
exercised  in  disregard  of  its  rules,  or  which  may  greatly  extend, 
modify,  or  limit  its  common-law  powers  and  privileges.  The  meas- 
ure of  the  legislative  power  in  this  regard  is  limited  only  by  circum- 
stantial provisions.  Ordinarily,  in  the  creation  of  corporations,  the 
common-law  incidents  and  powers  are  implied,  unless  otherwise  pro- 
vided or  restrained  by  the  law  of  its  corporate  existence.  But  in  de- 
termining the  nature  and  extent  of  the  powers  and  capacities  con- 
ferred on  a  corporation,  and  the  mode  of  their  exercise,  the  law  of 
its  creation,  whether  a  charter  or  a  statute,  must  be  consulted ;  for 
it  has  no  power  except  as  thus  given,  either  expressly  or  as  incidental 
to  the  exercise  of  the  powers  granted. 

It  is  provided  by  our  statute  that  a  corporation  may  engage  in  any 
lawful  enterprise,  business,  pursuit,  or  occupation  (Code,  §  3217), 
so  that,  unless  corporations  are  affected  Vvdth  some  disability  when 
the  articles  of  incorporation  are  sufficient  for  the  purpose,  there  is 
no  lawful  occupation  or  business  in  which  it  may  not  engage  in  this 
state  exactly  as  individuals.  By  its  articles  of  incorporation  the  de- 
fendant corporation  is  expressly  authorized  and  empowered  "to  act 
as  the  general  or  special  agent,  or  attorney  in  fact,  for  any  public 
or  private  corporation,  or  person,  in  the  management  and  control  of 
real  estate  or  other  property,  its  purchase,  sale,  or  conveyance,  etc." 
No  question  is  made  but  what  the  defendant,  by  its  articles  of  in- 
corporation, has  conferred  upon  it  the  power  to  do  the  act  for  which 
there  is  claimed  to  be  an  alleged  failure ;  but  the  contention  is  that 
a  corporation,  from  the  nature  of  the  organization  as  an  artificial 
body,  necessitated  to  act  through  agents,  is  incapable  of  executing 
a  deed  as  an  attorney  in  fact.  This  argument  is  based  on  the  assump- 
tion that  there  are  some  things,  from  the  inherent  nature  of  the 
case,  that  a  corporation  is  incapable  of  doing,  and  seeks  its  illustra- 
tions in  the  common  law,  as  that  a  corporation  cannot  be  an  admin- 
istrator or  executor,  because  its  duties  are  of  a  personal  nature  and 
cannot  be  delegated,  or  to  take  an  oath,  when  so  required  by  law, 
before  proceeding  to  execute  some  duty  or  trust.  But  this  argument 
overlooks  the  fact  that  a  corporation  may  be  empowered  to  do  by 
statute  what  it  was  incapable  of  doing  under  its  common-law  powers, 
and  when  thus  created,  its  powers,  capacities  and  modes  of  exercis- 
ing them  depend  upon  the  statute.  Nor  is  the  disability  in  such  cases 
of  a  character  which  cannot  be  obviated  by  statute,  for,  as  ^Ir. 
]\Iorawetz  says,  there  are  numerous  instances  in  which  corporations 
have  been  expressly  empowered  by  statutes  to  administer  estates. 
Alorawetz  on  Corporations,  §  357. 

The  reason  why  a  corporation  was  unable  to  perform  the  office  of 


48  COMPETENCY   OF    PARTIES. 

executor  or  administrator,  as  stated  by  Blackstone,  was  that  it  could 
not  take  an  oath  for  the  due  execution  of  the  office,  i  Bla.  Com. 
477.  But  to  enable  a  corporation  to  act  as  executor  or  administrator, 
the  statute  may  dispense  with  the  oath,  or  provide  that  some  one  of 
its  officers  may  take  it,  or  the  law  of  the  state  may  not  require  any 
oath  for  the  due  execution  of  the  office,  and  in  such  case,  when  no 
other  impediment  intervenes,  a  corporation  may  act  as  administrator 
when  the  law  of  the  state  does  not  require  the  administrator  to  take 
an  oath.  It  was  not  so  held  in  Deringer's  Adm'r  v.  Deringer's 
Adni'r,  5  Houst.  416;  i  Am.  St.  Rep.  156.  So,  too,  in  Lincoln's  Sav. 
Bank  v.  Ewing,  12  Lea  602,  where  it  was  urged  that  a  corporation 
was  incapable  of  taking  to  itself  a  mortgage  or  trust  conveyance,  it 
was  held  that  a  corporation  may  take  and  hold  as  a  trustee  or 
mortgagee,  and  execute  a  trust  in  which  it  has  an  interest  within 
the  scope  of  its  business,  and  a  failure  or  inability  to  comply 
with  the  provisions  of  the  code,  by  taking  the  required  oath, 
would  not  affect  the  validity  of  the  deed  or  the  title  vested.  As 
it  is  not  questioned  that  the  business  in  which  the  defend- 
ant is  engaged  is  a  lawful  occupation,  and  that  the  articles  of 
incorporation  are  sufficient  to  confer  the  power  on  the  defendant 
to  act  as  an  attorney  in  fact  in  furtherance  of  its  legitimate  objects, 
there  is  nothing  to  prevent  it  from  doing  the  acts  essential  to  carry 
on  its  business  and  comply  with  the  terms  of  its  agreement,  unless  it 
is  incapable  of  performing  such  acts  from  some  cause  inherent  in 
itself.  A  corporation,  like  a  natural  person,  has  a  right  to  conduct 
its  legitimate  business  by  all  the  means  necessary  to  effect  such  ob- 
ject. Within  its  prescribed  range  it  can  do  whatever  a  natural  per- 
son, mutatis  mutandis,  could  do.  Wharton  on  Agency,  §  57.  In 
Barry  v.  Merchants'  Exchange  Co.,  i  Sand.  Ch.  280,  it  is  said : 
"Every  corporation,  as  such,  has  the  capacity  to  take  and  grant 
property  and  to  contract  obligations  the  same  as  an  individual. 
*  *  *  And  every  such  corporation  has  power  to  make  all  con- 
tracts which  are  necessary  and  usual  in  the  course  of  the  business  it 
transacts,  as  means  to  enable  it  to  effect  such  objects,  unless  ex- 
pressly prohibited  by  law."  Having  the  power  conferred  upon  it 
to  act  as  an  attorney  in  fact,  is  it  not  endowed  with  all  the  faculties 
or  capacities  essential  to  execute  it  and  carry  out  the  business 
projects  of  its  creation?  Why  may  not  a  corporation  act  as  an 
agent  for  an  individual  or  another  corporation?  As  the  owner  of 
real  property,  it  can,  by  its  authorized  agents,  execute  a  conveyance, 
or  it  may  authorize  another,  by  power  of  attorney  in  writing,  to  con- 
vey such  property  for  it.  Why,  then,  may  it  not  act  as  the  agent  or 
attorney  in  fact  of  another  for  a  like  purpose,  when  it  is  so  author- 
ized, and  to  thus  act  is  one  of  the  chief  powers  conferred  to  effect 
the  object  of  its  creation  and  to  carry  on  the  business  in  which  it  is 
engaged  ? 

"Within  the  scope  of  its  corporate  powers,"  says  Mr.  Mechem, 


am;.-!,  49 

"unless  there  are  exprc  ;sions  in  its  charter,  or  constating 

instruments  to  the  contrary,  a  corporation  may  act  as  agent  either 
for  an  individual,  a  partnership  or  another  c -no  tion.  Many  of 
the  great  corporations  of  the  country  are  orp  f  this  express 

purpose  under  statute  or  cha-"' ""       ■-^--'-■■^■^  —  their  pow- 

ers and  the  methods  of  exec  •  cases  the 

authority  so  to  act  might  be  :iijpli-a  as  :  '  ■       t- 

pose."     Mochem  on  Agency.  ^  ^>4.    Tt  i"^  ^- 

tion  may  act  as  the  agent  o*  'dued 

with  the  faculties  or  instruis:  's  au- 

thorized  to   undertake    and  crea- 

tion.    When  "a  corporation  c..-,..;.^^  .>..■_  .m  ;q 

authorized  by  its  incorporation  to  do  the  thi. 
'>!  .-.;    li  business,  it  is  an  exp  '  ■: 

'iect.  If  it  is  to  be  ex 
■  :  'ie  nature  of  its  organizcttiuu,  it  cannoL  act  j 
li  f  r.'.;h  agents,  there  would  be  little  left  in  the  u 
it  could  do.  As  was  said  by  the  court  in  Hopkins  v.  Gallaton  Turn- 
pike Co.,  4  Hump.  412 :  "The  common-law  rule  with  regard  to  natu- 
ral persons,  that  an  agent,  to  bind  his  principal  by  deed,  cannot  in 
tlie  nature  of  things  b«  applied  to  corporations  aggregate,  these  be- 
ing of  mere  legal  existence,  and  their  board,  as  such,  literally  speak- 
ing, are  incapable  of  a  personal  act.  They  direct  or  assent  by  vote, 
but  their  most  immediate  mode  of  action  must  be  by  agent."  Being 
a  creation  of  the  law — an  artificial  person — it  can  only  act  by  agents, 
who  are  its  limbs  or  instrinnentalities,  to  effect  the  purpose  for 
which  it  was  organized,  and  to  act  for  it,  their  act  being  the  act  of 
the  corporation  exactly  as  the  act  of  an  individual  is  his  act.  As 
such,  upon  the  principle  of  the  objection  raised,  it  could  not  make 
:<■'■  '      lent  in  person,  but  it  may  by  its  o''  'd  in  such 

affixing  the  seal  i?  the  pnrty  >.  «:be  -^eed 

'    iUe  meaning  of  the  statj  s  lu  01 

■  1      '  V  the  grantor.     Kelly  v.  l.  ..     -i.,     ,   -  .  S.  711;  :  .^ 

V.  Brace,  51  Md.  508;  Am.  &  Eng.  Ency.  of  Law,  tits. 

u;gment,  Corporations. 

t.  within  the  same  principle  of  reasoning,  it  may  be  said  that 
'  'M  cannot  make  a  <leed  of  its  f^  but  we  • 

iiat  the  act  of  its  officers  in  so  .ict  of  th 

When  a  corporation  is  made  the  agent  of  another  to  sell 
r  'ivey  property,  it  acts  through  the  same  instrumentalitiec  .-i , 

when  acting  for  itself,  and  the  relation  between  it  and  its  i: 
mentalities  are  as  one  being  or  artific'  ■"-on,  in  the  perfor, 
of  its  engage.'uent,  and  involves  no  ■  ;i  of  powers.     S 

when  a  con/  •■  •  dwithap; 

convey  xf^''  rson  confen 

the  cor;  •  i  personally  ;l:  thai,  r, 


's  that  it  could 

.0.     I  Bla.  Com. 

■c  or  administrator, 

■  that  some  one  of 

ly  not  require  any 

i:  .-^uch  ■■  lo 

■ iV  act  a-  'V 

admin;  ;  e 

-   Adm'r  ^,    s 

.  too,  in  Lincohi's  Sav. 
,...-,  i'-..r  ,.  .•—-■^ ration 

ice.  it 

■   'jr 

ii 

or    i:  iv 


'.nkmo" 


'.c  title  vested.     As 

'■'■•h    the    defend- 

;e  articles  of 

'      defendant 

e  objects, 

carry 

'CSS  it 

nt  in 

.■]nrt 
.■...ai   ^.ei- 

•^  57-    .In 

:,.   260,  it  is  said: 

;o  take  and   f^rant 

uue   as  'duah 

I'vver  to  :  \  con- 

of  the 

on  it 
iiculties 
business 
corpcraiit'n  act  as  an 
on?     As  the  owner  of 
,  execute  a  conveyance, 
.  ney  in  writing,  to  con- 
not  act  as  the  agent  or 
,  when  it  is  so  author- 
rs  conferred  to  effect 
"  ness  in  which  it  is 

-ays  Mr.  Mechem, 


AGENT.  49 

"unless  there  are  express  provisions  in  its  charter,  or  constating 
instruments  to  the  contrary,  a  corporation  may  act  as  agent  either 
for  an  individual,  a  partnership  or  another  corporation.  Many  of 
the  great  corporations  of  the  country  are  organized  for  this  express 
purpose  under  statute  or  charters  conferring  and  defining  their  pow- 
ers and  the  methods  of  executing  them ;  but  even  in  other  cases  the 
authority  so  to  act  might  be  implied  as  auxiliary  to  their  main  pur- 
pose." Mechem  on  Agency,  §  64.  It  is  clear,  then,  that  a  corpora- 
tion may  act  as  the  agent  of  another,  and  if  so,  it  must  be  endued 
w^ith  the  faculties  or  instrumentalities  to  perform  the  office  it  is  au- 
thorized to  undertake  and  carry  out  the  purposes  of  its  crea- 
tion. When  a  corporation  engages  in  a  legitimate  business,  and  is 
authorized  by  its  incorporation  to  do  the  things  necessary  to  carry 
on  such  business,  it  is  an  express  grant  of  power  to  enable  it  to  effect 
that  object.  If  it  is  to  be  excluded  from  doing  such  things  because, 
from  the  nature  of  its  organization,  it  cannot  act  personally,  but  only 
through  agents,  there  would  be  little  left  in  the  domain  of  business 
it  could  do.  As  was  said  by  the  court  in  Hopkins  v.  Gallaton  Turn- 
pike Co.,  4  Hump.  412 :  "The  common-law  rule  with  regard  to  natu- 
ral persons,  that  an  agent,  to  bind  his  principal  by  deed,  cannot  in 
the  nature  of  things  be  applied  to  corporations  aggregate,  these  be- 
ing of  mere  legal  existence,  and  their  board,  as  such,  literally  speak- 
ing, are  incapable  of  a  personal  act.  They  direct  or  assent  by  vote, 
but  their  most  immediate  mode  of  action  must  be  by  agent."  Being 
a  creation  of  the  law — an  artificial  person — it  can  only  act  by  agents, 
who  are  its  limbs  or  instrumentalities,  to  effect  the  purpose  for 
which  it  was  organized,  and  to  act  for  it,  their  act  being  the  act  of 
the  corporation  exactly  as  the  act  of  an  individual  is  his  act.  As 
such,  upon  the  principle  of  the  objection  raised,  it  could  not  make 
an  acknowledgment  in  person,  but  it  may  by  its  officers,  and  in  such 
cases,  its  officer  affixing  the  seal  is  the  party  executing  the  deed 
within  the  meaning  of  the  statute  requiring  deeds  to  be  acknowl- 
edged by  the  grantor.  Kelly  v.  Calhoun,  95  U.  S.  711;  Frostburg 
M.  B.  Assn.  V.  Brace,  51  Md.  508;  Am.  &  Eng.  Ency.  of  Law,  tits. 
Acknowledgment,  Corporations. 

In  fact,  within  the  same  principle  of  reasoning,  it  may  be  said  that 
a  corporation  cannot  make  a  deed  of  its  own  property ;  but  we  know 
it  can,  and  that  the  act  of  its  officers  in  so  doing  is  the  act  of  the  cor- 
poration. When  a  corporation  is  made  the  agent  of  another  to  sell 
and  convey  property,  it  acts  through  the  same  instrumentalities  as 
when  acting  for  itself,  and  the  relation  between  it  and  its  instru- 
mentalities are  as  one  being  or  artificial  person,  in  the  performance 
of  its  engagement,  and  involves  no  delegation  of  powers.  So  that 
when  a  corporation  is  invested  with  a  power  of  attorney  to  sell  and 
convey  real  property,  the  person  conferring  the  power  knows  that 
the  corporation  cannot  act  personally  in  the  matter,  but  that  in  per- 
-1-— Reinhard  Cases. 


50  COMPETENCY   OF   PARTIES. 

forming  the  engagement  it  will  act  through  its  agents,  who  for  that 
purpose  are  its  faculties,  and  whose  acts  in  the  discharge  of  that 
duty  are  the  acts  of  the  corporation,  and,  as  such,  must  be  considered 
to  be  included  in  the  artificial  person  as  instrumentalities  authorized 
by  him  to  do  the  act  conferred  upon  it  by  his  power  of  attorney.  In 
this  view,  the  argument  that  the  corporation  cannot  do  such  act 
under  the  power  of  attorney  without  a  delegation  of  authority  to  its 
agents,  and  that  the  grantor  of  the  power  has  given  no  such  power 
of  substitution,  cannot  be  sustained. 

There  was  no  error,  and  the  judgment  must  be  affirmed.^ 


HOLT  V.  GREEN. 
1873.   Supreme  Court  of  Pennsylvania.   73  Pa.  St.  198. 

Mercur,  J. — The  plaintiff  brought  this  suit  to  recover  commissions 
for  the  sale  of  certain  machinery  sold  by  him  for  defendant.  It  ap- 
peared upon  the  trial  of  the  cause  that  the  plaintiff  was  carrying  on 
the  business  of  a  commercial  broker,  and  as  such  broker  rendered 
the  services  for  which  the  commissions  were  claimed.  He  also  tes- 
tified that  he  had  not  taken  out  a  license  nor  paid  a  special  tax  under 
the  act  of  congress.  Upon  this  the  learned  judge  nonsuited  the 
plaintiff  and  judgment  was  entered  thereon.  This  is  assigned  for 
error. 

The  question  thus  presented  is,  did  the  plaintiff's  omission  to  pay 
the  tax  and  obtain  the  license  as  a  commercial  broker  bar  his  recov- 
ery of  commissions  for  services  rendered  as  such  brokers  ? 

The  act  of  congress  of  June  30,  1864,  §  71,  provides  that  no  per- 
son *  *  *  shall  be  engaged  in  prosecuting  or  carrying  on  any 
trade,  business  or  profession  hereafter  mentioned  and  described  until 
he  *  *  *  shall  have  obtained  a  license  therefor  in  the  manner 
hereinafter  provided.  Section  73  provides  that  any  person  carrying 
on  the  business  without  a  license  shall  be  liable  for  each  offense  to 
a  certain  fine  and  imprisonment  therein  specified. 

Section  79  provides  that  commercial  brokers  shall  pay  $20  for 
each  license.  Any  person  whose  business  it  is  as  a  broker  to  nego- 
tiate sales  or  purchases  of  goods,  wares,  products  or  merchandise 
shall  be  regarded  a  commercial  broker  under  this  act. 

An  action  founded  upon  a  violation  of  the  laws  of  the  United 
States  or  of  this  state  cannot  be  maintained  in  the  courts  of  this 
state.    Maybin  v.  Coulon,  4  Dall.  298 ;  s.  c.  4  Yeates  24. 

^  "The  relation  of  principal  and  agent,  or  master  and  servant,  may  exist  be- 
tween a  corporation  and  an  employer  as  well  as  between  individuals."  Camp- 
bell, J.,  in  McWilliams  v.  Detroit  Central  Mills  Co.,  31  Mich.  274,  276. 


AGENT.  y 

It  is  not  necessary  that  :  'e  should  expressly  declare  the 

t  to  be  void.     An  action  founded  xv  n.  pro- 

i  by  a  statute  cannot  be  iriaintafncrl.  'tv  be 

imposed  for  violating-  the  law.  1- 

ministrators,  4  Serg.  &  Rawle  ly..  'e 

about  a  contract  cr  thing  which  is  r  y 

statute  it  is  void,  though  th  .  sjiaii 

be  so.  but  only  inflicts  a  pr  'ridge 

Co.  V.  Halderman,  7  Watt?  c- 

tion  in  this  state,  whether  th 
i:.  se.  Columbfa  Bridge  Co  ^rg.  2 

^^ho  test  whether  a  deman..  .......:,. ^^^^'^  5  :.l  ■  .    ., 

e  of  being  enforced  by  law  is,  whether  ti  quires 

',  1  of  the  illegal  transaction  to  establish  his  c.  "it, 

.    ■  -';'^.  &  Rawle  164;  Thomas  v.  Brady,  10  i 
'  '^'      is  20.     If  a  plaintiff  cannot  open  liis  cai.c  vviiiiout 

;e  has  broken  the  law,  a  court  will  not  assist  him. 
-Jy,  supra.    It  has  been  well  said  that  the  objection 
;    >   -  iid  very  ill  in  the  mouth  of  a  defendant,  but  it  is  not 
-  sake  the  objection  is  allowed;  it  is  founded  on  general  prin- 
ciples of  policy  which  he  shall  have  the  advantage  of,  contrary  to  the 
real  justice  between  the  parties.     That  principle  of  public  policy  is 
n  .'   -  ')  court  will  lend  its  aid  to  a  party  who  grounds  his  action 
';         ;n  immoral  or  upon  an  illegal  act.    Mitchell  v.  Smith,  i  Binn. 
:der  v.  Charles'  Adm'rs,  supra.     The  principle  to  be 
all  the  cases  is,  that  the  law  will  not  lend  its  support 
t  >.  'ounded  on  its  own  violation.    Coppel  v.  Hall,  7  Wall.  558. 

■>->se  principles  to  this  case.    The  bill  of  particulars  served 
cndant  avers  "the  plaintiff's  demand  is  founded  on  his 
issions  as  a  broker  or  salesman  on  commission,  for 
'in  cards  and  other  spmnincr  ?.nd  th'^ir  m^chinerv  of 
',  put  in  '  it, 

Upon  '  ss 

was  bn\mg  and  seiimg  machinery  for  other  parties.     The  moment 
he-  .»..  1  •  ■  his  case  he  showed  that  •"'•"  "■  -^  engaged  in  a  business 
V  itrary  to  a  clear  and  exr  of  congress.    That  for 

s  liable  to  a  fine  and  ini^'ii-onment.    The  intent  with 
•'  i  cannot  he  inquired  into  in  this  action.     Hi's  right  to 

I  upon  ^  'acts.    1  to  re- 

pon  his  :  .  :  it  to  pei  :  serf- 

's.    Ihc  vhich  he  testified  showed  he  had  no  such  r; 

Without;  f  '-i<  in -o-"]  transactions,  he  could  nr^^ 

->t,  show  ..  •  '.    His  case  as  he  exhibit?  d 

•    "^    "'  ■'-' -      ^le  grounds  b'  n 

cannot  sue-  '<e 


assents,  who  for  that 


rized 

Tn 


cannoi. 

•on  of  p 

given  ! 


Pa.  St 


commissions 

•I.    It  ap- 


•lission  to  pay 
>ar  his  recov- 

.  .-    :.crs? 

provides  that  no  per- 

;i£C  or  carrying;-  on  any 

-d  and  described  until 

'lerefor  ■:      '  r 

■■■  anv  p  ;^ 

icli  otlenbe  to 

-hall  pay  $20  for 

,  a  broker  to  nego- 

■  iucts  or  merchandise 

;  lis  act. 

•  laws  of  the  United 

•he  courts  of  this 

-<^.  24. 

'..  may  exist  be- 
alividuals."    Camp- 
■:1t.  274,  276. 


AGENT.  51 

It  is  not  necessary  that  the  statute  should  expressly  declare  the 
contract  to  be  void.  An  action  founded  upon  a  transaction  pro- 
hibited by  a  statute  cannot  be  maintained,  although  a  penalty  be 
imposed  for  violating  the  law.  Seidenbender  et  al.  v.  Charles'  Ad- 
ministrators, 4  Serg.  &  Rawle  159.  Hence  where  a  contract  is  made 
about  a  contract  or  thing  which  is  prohibited  and  made  unlawful  by 
statute  it  is  void,  though  the  statute  itself  does  not  declare  it  shall 
be  so,  but  only  inflicts  a  penalty  on  the  offender.  Columbia  Bridge 
Co.  V.  Halderman,  7  Watts  &  Serg.  233.  Nor  is  there  any  distinc- 
tion in  this  state,  whether  the  contract  is  inaluni  prohibittun  or  malum 
in  se.  Columbia  Bridge  Co.  v.  Halderman,  7  Watts  &  Serg.  233. 

The  test  whether  a  demand  connected  with  an  illegal  transaction  is 
capable  of  being  enforced  by  law  is,  whether  the  plaintiff  requires 
the  aid  of  the  illegal  transaction  to  establish  his  case.  Swan  v.  Scot, 
II  Serg.  &  Rawle  164;  Thomas  v.  Brady,  10  Barr.  170;  Scott  v. 
Duffy,  2  Harris  20.  If  a  plaintiff  cannot  open  his  case  without 
showing  that  he  has  broken  the  law,  a  court  will  not  assist  him. 
Thomas  v.  Brady,  supra.  It  has  been  well  said  that  the  objection 
may  often  sound  very  ill  in  the  mouth  of  a  defendant,  but  it  is  not 
for  his  sake  the  objection  is  allowed;  it  is  founded  on  general  prin- 
ciples of  policy  which  he  shall  have  the  advantage  of,  contrary  to  the 
real  justice  between  the  parties.  That  principle  of  public  policy  is 
that  no  court  will  lend  its  aid  to  a  party  who  grounds  his  action 
upon  an  immoral  or  upon  an  illegal  act.  Mitchell  v.  Smith,  i  Binn. 
118;  Seidenbender  v.  Charles'  Adm'rs,  supra.  The  principle  to  be 
extracted  from  all  the  cases  is,  that  the  law  will  not  lend  its  support 
to  a  claim  founded  on  its  own  violation.    Coppel  v.  Hall,  7  Wall.  558. 

Apply  these  principles  to  this  case.  The  bill  of  particulars  served 
on  the  defendant  avers  "the  plaintiff's  demand  is  founded  on  his 
claim  to  commissions  as  a  broker  or  salesman  on  commission,  for 
the  sale  of  certain  cards  and  other  spinning  and  their  machinery  of 
a  cotton  or  woolen  mill,  put  in  his  hands  for  sale  by  the  defendant, 
on  or  about  May,  1866."  Upon  the  trial  he  testified  that  his  business 
was  buying  and  selling  machinery  for  other  parties.  The  moment 
he  opened  his  case  he  showed  that  he  was  engaged  in  a  business 
directly  contrary  to  a  clear  and  express  act  of  congress.  That  for 
so  doing  he  was  liable  to  a  fine  and  imprisonment.  The  intent  with 
which  he  did  it  cannot  be  inquired  into  in  this  action.  His  right  to 
commissions  as  shown  rested  upon  his  illegal  acts.  His  right  to  re- 
cover in  law  must  depend  upon  his  legal  right  to  perform  the  serv- 
ices.   The  facts  to  which  he  testified  showed  he  had  no  such  right. 

Without  the  aid  of  his  illegal  transactions,  he  could  not,  and  did 
not,  show  any  services  performed.  His  case  as  he  exhibits  it  is  based 
upon  a  clear  violation  of  the  statute.  He  grounds  his  action  upon 
that  violation.  Thus  resting  his  case,  he  cannot  successfully  invoke 
the  aid  of  a  court. 

We  are  aware  there  are  some  English  authorities,  as  well  as  de- 


52  COMPETENCY   OF    PARTIES. 

cisions  in  some  of  our  sister  states,  that  make  a  distinction  in  cases 
of  contracts  predicated  of  a  violation  of  the  revenue  laws,  and  espe- 
cially that  class  of  them  which  does  not  expressly  declare  the  con- 
tract to  be  void.  The  case  of  Aiken  v.  Blaisdell,  41  Vt.  655,  is  a  strong 
case  going  to  sustain  a  contract  of  sale  contrary  to  law.  We  prefer, 
however,  to  stand  by  our  own  decisions.  The  case  of  Maybin  v. 
Coulon,  supra,  was  based  upon  a  violation  of  the  revenue  laws  of 
the  United  States,  and  the  unbroken  current  of  authorities  in  this 
state  is  to  hold  a  contract  void  which  is  grounded  upon  a  clear  viola- 
tion of  a  statute,  although  it  may  not  be  expressly  so  declared  by  its 
terms. 

Judgment  affirmed.^ 

*  Compare  Cooper  v.  Griffin,  13  Ind.  App.  212. 

Statutes  in  most  states  provide  that  it  is  unlawful  for  any  one  to  retail 
drugs  or  to  compound  prescriptions  without  a  license.  See  Mass.  Rev.  Stat. 
(1902),  Chap.  76,  §§  10-23;  Mo.  Annot.  Stat.  (1906),  Chap.  23. 


II 


CHAPTER    III. 

SUBJEC.  OF  AGENCY. 

Section  1. — What  Acts  can  be  done  by  an  Agent. 


In  re  LONDON  AND  MEDITERRANEAN  t.^w't: 
Ex  PARTE  BIRMINGHAM  BANKING  CO 

iSf^S.    Court  OF  Appeal  IN  Chancery.    L.  R.  3  Ch.  App.  65:. 

At  an  extraordinary  meeting  of  the  London  and  Mediterranean 

Hank,  Limited,  held  on  the  22d  of  November,   1865,  resolutions 

A  ere  passed  for  winding  up  the  company  voluntarily,  and  Messrs. 

Maxwell,  Routh,  Collins  and  Schoales  were  appointed  liquidators. 

.\t  the  first  meeting  of  the  liquidators,  held. on  the  24th  of  Novem- 

i.or,  at  which  all  four  liquidators  were  present,  a  resolution  was 

•  I  ••    •  ';■      ' m  that  the  bankers  of  the  company  be  r  "  10 

.    .  ■  ks  or  drafts  bearing  the  signature  of  one  •-.  •  ^  li- 

manager,  or  secretary,  countersigned  by  the  accouniatd  or 

'  ihe  cashiers  of  the  company,  and  that  the  bank's  acceptances 

dnue  to  be  signed  l3y  one  of  the  liquidators  and  by  the 

ng  Company  were  the  holders  of  five 

■  dates  since  the     "    "  no 

v?d  by  one  of  the  rs 

,,er  'for  Lhe  Lijuuon  and  Me  .  Lim- 

tion."    The  Birmingham  Ba..      ,.    _/  ,    daimed 

for  £4667  los.,  in  respect  of  these  five  bills. 

,--  i,  ,1  YfQQri  changed  since  the  bills  were  accepted, 

tors  disputed  the  claim  of  the  Birmingham 

0:1  the  ground  that  the  '  '  '    '     "  been  accepted 

niv  instead  of  two,  as  rc'-  the  Companies 

accept  bills  being  given  b_y   the  ninety-fi'fth 

the  original  liquidators  had  passed  a  re 

■''  of  £16,500  should  be  issued  to  a  Mr  '"• 

led  to  have  taken  these  five  bills  • 

■    n;r,  (■  '"  'V       ''':  -is    a    di^ 


:irs. 

ake  a  distinction  in  crises 


.n  oi  1.! 

07    TT^t    ' 

41  Vt.  6. 

..y  to  law 

rhe  case 

;■)  of  the  re\ 

i-nt  of  auth 

CHAPTER    III. 

SUBJECT-MATTER  OF  AGENCY. 

Section  1. — What  Acts  can  be  done  by  an  Agent. 


In  re  LONDON  AND  MEDITERRANEAN  BANK. 
Ex  PARTE  BIRMINGHAM  BANKING  COMPANY. 

Court  of  Appeal  in  Chancery.     L.  R.  3  Ch.  App.  651. 

At  an  extraordinary  meeting  of  the  London  and  Mediterranean 
Bank,  Limited,  held  on  the  22d  of  November,  1865,  resolutions 
were  passed  for  winding  up  the  company  voluntarily,  and  Messrs. 
Maxwell,  Routh,  Collins  and  Schoales  were  appointed  liquidators. 
At  the  first  meeting  of  the  liquidators,  held  on  the  24th  of  Novem- 
ber, at  which  all  four  liquidators  were  present,  a  resolution  was 
passed  by  them  that  the  bankers  of  the  company  be  requested  to 
honor  all  checks  or  drafts  bearing  the  signature  of  one  of  the  liqui- 
dators, manager,  or  secretary,  countersigned  by  the  accountant  or 
one  of  the  cashiers  of  the  company,  and  that  the  bank's  acceptances 
should  continue  to  be  signed  by  one  of  the  liquidators  and  by  the 
manager  as  theretofore. 

The  Birmingham  Banking  Company  were  the  holders  of  five 
bills  of  exchange  drawn  at  different  dates  since  the  winding  up,  and 
by  different  persons,  and  each  accepted  by  one  of  the  four  liquidators 
and  the  manager  "for  the  London  and  Mediterranean  Bank,  Lim- 
ited, in  liquidation."  The  Birmingham  Banking  Company  claimed 
to  be  creditors  for  £4667  los.,  in  respect  of  these  five  bills. 

The  liquidators  had  been  changed  since  the  bills  were  accepted, 
and  the  present  liquidators  disputed  the  claim  of  the  Birmingham 
Banking  Company  on  the  ground  that  the  bills  had  been  accepted 
by  one  liquidator  only  instead  of  two,  as  required  by  the  Companies 
Act,  1862,  power  to  accept  bills  being  given  by  the  ninety-fifth 
section  of  the  act. 

It  appeared  that  the  original  liquidators  had  passed  a  resolution 
that  bills  to  the  extent  of  £16,500  should  be  issued  to  a  Mr.  Dimsdale, 
and  Mr.  Dimsdale  seemed  to  have  taken  these  five  bills  of  exchange 
and   to  have  got  them   discounted.     There   was   a   dispute   as   to 

53 


54  SUBJECT-MATTER. 

whether  these  bills  were  issued  for  the  purposes  of  the  liquidation 
or  for  other  purposes,  as  to  which  some  evidence  was  entered  into. 

The  vice-chancelor  Stuart  was  of  opinion  that  the  Birmingham 
Banking  Company  had  established  their  claim,  and  he  made  an 
order  that  their  claim  in  respect  of  the  said  five  bills  of  exchange 
should  be  allowed. 

The  official  liquidators  appealed. 

Mr.  Bacon,  Q.  C,  and  Mr.  J.  N.  Higgins  for  the  appellants : 

We  reply  on  the  statutory  requisitions,  and  contend  that  these  bills 
are  invalid,  as  being  signed  by  one  liquidator  only.  The  company 
at  the  meeting  could  authorize  one  liquidator  to  act,  but  the  liquida- 
tors could  not.  It  is  clear  on  the  face  of  the  bills  that  the  company 
was  in  liquidation,  and  any  one  taking  them  is  bound  to  know  that 
one  liquidator  could  not  bind  the  company.  There  is  no  distinction 
between  this  case  and  the  case  of  a  claim  by  the  London  and  South 
Western  Bank  against  this  very  company,  where  the  vice-chancellor 
decided  against  the  claim. 

Mr.  Swanston,  Q.  C,  and  Mr.  Lindley  for  the  Birmingham  Bank- 
ing Company : 

Our  olaim  is  that  of  creditors  holding  these  bills  as  security.  We 
advanced  the  money  and  took  the  bills  signed  by  one  liquidator. 
There  is  nothing  in  the  act  to  make  such  an  acceptance  invalid.  Lord 
v.  Hall,  8  C.  B.  627  (E.  C.  L.  R.,  Vol.  65).  It  does  not  signify  who 
actually  signs  the  bills  if  the  signer  has  the  authority  of  all  the 
liquidators.  A  clerk  may  sign.  Ex  parte  Sutton,  2  Cox  84.  The 
Vice-Chancellor  Stuart  was  of  opinion  that  we  had  advanced  this 
money ;  and  the  words  as  to  the  bills  of  exchange  must  have  been 
inadvertently  introduced  into  the  order. 

Mr.  Higgins,  in  replv. 

Sir  W.  Page  Wood,  L.  J.— 

The  point  now  before  us  is  this,  and  it  does  not  seem  to  be  unim- 
portant to  the  liquidators  of  the  Mediterranean  Bank :  namely, 
whether  the  proof  should  be  upon  the  bills  or  upon  the  debt? 

Now,  as  regards  the  claim  upon  the  bills,  the  case  stands  in  a  very 
small  compass,  and  it  is  this  :  According  to  the  Act,  liquidators,  when 
they  are  in  the  plural  number,  cannot  perform  any  act  except  there 
be  two  at  least  engaged  in  the  performance  of  that  act,  unless  they 
have  authority  from  the  company  appointing  the  liquidators  to  per- 
form it  in  any  other  manner — as  for  example,  through  the  medium 
of  one  liquidator.  Then  the  ninety-fifth  section  gives  power  to 
liquidators  to  accept  bills  of  exchange,  which  shall  bind  the  com- 
pany. That  power  is  simply  a  statutory  power;  and  the  liquidators 
have  no  power  whatever,  except  by  the  statute,  and,  of  course,  there- 
fore, that  power  must  be  exercised  as  the  statute  directs ;  that  is  to 
say,  the  liquidators  in  this  case  have  no  power  to  accept  bills  except 
through  the  medium  of  two,  at  least,  of  them. 

I  am  disposed  to  accede  to  the  very  able  argument  of  Mr.  Swan- 


D5 

-ion  and  Mr.  '  ind  I  am  not  at  all  inclined  to  dispute  their 

propo?'*"'*'  '    '^  -uthority  of  the  two  does  not  necessarily  mean 

that  \  '  the  names  of  the  two  liquidators  on  the  piece  of 

!!s  the  bill.     But  though  the  liquidators  might  well 

liquidators  are  said  to  have  done  so  here)  and  give 

l;  some  one,  yet  that  \r        '  •  ■  e  of  a 

s'  other  specific  thingf  ^•  ;y  may 

1  at  their  clerk  or  ag<  •  gn  for 

■•  '  1  i:l\  )>q,  impress  a  'ken  to 

;  That  may  iie  95th 

,  a.  .>.ast  you  r^'  xo  liq- 

;pon   the  partici;'  be   so 

d  I  apprehend  tli  >   Hs 

■iigned  in  a  parti  'r. 

•^  when  ud 

icular  bil  ^  ay 

il  be  done.     [The  lord  justice  then  commented  on  the 

continued.]     The  grant  of  a  sweeping  authority  to 

aether  to  the  extent  of  £16,500,  without  any  judgmenL 

>  ro  the  date  at  which  they  are  to  be  issued,  the  pro- 

■  wliich  they  are  to  be  issued,  the  amount  of  the  bills,  or 

vhich  they  shall  run,  except  this,  that  there  are 

from  the  date,  whenever  that  may  be,  does  not 

to  us  an  act  which  it  was  competent  to  the  four  liquidators 

■>  i^he.  manner  proposed  by  their  resolution. 

rds  tiie  holders  of  the  bills,  it  may  be  said  that  they  are 

.  disadvantageous  position,  in  being  aflfected  by  any  of  these 

with  reference  to  the  acceptance  of  bills;  but  I  apprehend 

"^  of  the  bills  must  be  bound  by  the  statute.    It  niay  al- 

n"on  how  far  they  are  bound  by  the  private  regulations 

's  deed,  but  here  is  an  express  provision  in  the  statute 

iT»  that  a  single  liquidator  cannot  accept — that  is  to 

be  the  person  authorizing  an  acceptance.    Therefore. 

mds  on  the  face  of  the  bill  r '  *"        nf  the  requisite 

his  own  fault  if  he  takes  a  biJi  iescription,  and 

in  thrown  upon  him  of  showing  that  the  statute  has 

with.    We  think  that  that  omis  has  not  been  in  this 

I,  and  that  the  decision  of  the  vice-chancellor  in  the 

idon  and  South  Western  Bank  was  a  perfectly  correct 

circumstances  there  stated,  which  seem  to  have  been 

"'"Stance  to  the  circumstances  here.    Our  order  will 

•prejudice  to  the  question  whether  or  not  the  clain - 

ver  the  I  ';ich  may  have  been  a(. 

'\nce  of  '^tor? ;  that  i?  <^uif■e 


:  to  anv 


:f  the  liquidation 
..as  entered  into. 
;hat  the  Bin!;ing;haiTi 

le  said  five 


.  for  the 
'.d  contf 
ator  onl 

■  .ciior  to  ac; 

of  the  bills 


-  nirmir.  rr1-.,'im  Rank- 
in uun.'!.;  i;  :v.  We 
the  bills   ■                                luidator. 


and  it  does  not'  seem  to  be  unim- 
Mediterranean    Bank :    namely, 
■;ills  or  upon  the  debt? 
bills,  the  casp  -'""'''^  '■"  -  "--^y 
q-totheAct 

i>erform  any  cic^  t'-.cpi;  inere 

. nance  of  that  act.  nnless  they 

;\Gf  the  ]■'-  to  per- 

::iple,  th'-  -redinm 

tifth   sec;  r   to 

:'ors 

■  ^u^Uii.e.  'TC- 

the  star  -  lo 


r;  argument  v  an- 


WHAT   CAN    BE   DONE   BY   AGENT.  55 

ston  and  Mr.  Lindley,  and  I  am  not  at  all  inclined  to  dispute  their 
proposition,  that  the  authority  of  the  two  does  not  necessarily  mean 
that  you  should  find  the  names  of  the  two  liquidators  on  the  piece  of 
paper  which  forms  the  bill.  But  though  the  liquidators  might  well 
meet  (the  four  liquidators  are  said  to  have  done  so  here)  and  give 
an  authority  to  some  one,  yet  that  must  be  as  to  the  acceptance  of  a 
specific  bill,  or  other  specific  thing  which  is  to  be  done ;  and  they  may 
then  say  that  their  clerk  or  agent,  whoever  it  may  be,  shall  sign  for 
them ;  or,  it  may  be,  impress  a  printed  mark,  which  may  be  taken  to 
be  their  signature.  That  may  be  a  good  acceptance  under  the  95th 
section ;  but  at  least  you  must  have  the  judgment  of  the  two  liq- 
uidators upon  the  particular  bill  which  they  authorize  to  be  so 
signed ;  and  I  apprehend  that  a  general  resolution  that  all  these  bills 
should  be  signed  in  a  particular  way  could  go  no  farther  than  Mr. 
Lindley  put  it,  that  when  they  have  exercised  their  judgment,  and 
desired  that  a  particular  bill  shall  be  accepted,  that  shall  be  the  way 
in  which  it  shall  be  done.  [The  lord  justice  then  commented  on  the 
evidence,  and  continued.]  The  grant  of  a  sweeping  authority  to 
issue  bills,  altogether  to  the  extent  of  £16,500,  without  any  judgment 
exercised  as  to  the  date  at  which  they  are  to  be  issued,  the  pro- 
portions in  which  they  are  to  be  issued,  the  amount  of  the  bills,  or 
the  times  during  which  they  shall  run,  except  this,  that  there  are 
to  be  three  months  from  the  date,  whenever  that  may  be,  does  not 
appear  to  us  an  act  which  it  was  competent  to  the  four  liquidators 
to  do  in  the  manner  proposed  by  their  resolution. 

As  regards  the  holders  of  the  bills,  it  may  be  said  that  they  are 
placed  in  a  disadvantageous  position,  in  being  afifected  by  any  of  these 
regulations  with  reference  to  the  acceptance  of  bills ;  but  I  apprehend 
that  the  holders  of  the  bills  must  be  bound  by  the  statute.  It  may  al- 
ways be  a  question  how  far  they  are  bound  by  the  private  regulations 
of  the  company's  deed,  but  here  is  an  express  provision  in  the  statute 
which  tells  them  that  a  single  liquidator  cannot  accept — that  is  to 
say,  he  cannot  be  the  person  authorizing  an  acceptance.  Therefore, 
if  the  holder  finds  on  the  face  of  the  bill  no  trace  of  the  requisite 
authority,  it  is  his  own  fault  if  he  takes  a  bill  of  that  description,  and 
the  onus  is  then  thrown  upon  him  of  showing  that  the  statute  has 
been  complied  with.  We  think  that  that  ouks  has  not  been  in  this 
case  discharged,  and  that  the  decision  of  the  vice-chancellor  in  the 
case  of  the  London  and  South  Western  Bank  was  a  perfectly  correct 
decision  on  the  circumstances  there  stated,  which  seem  to  have  been 
very  similar  in  substance  to  the  circumstances  here.  Our  order  will 
be  wholly  without  prejudice  to  the  question  whether  or  not  the  claim- 
ants are  entitled  to  recover  the  money  which  may  have  been  advanced 
to  the  bank  at  the  instance  of  the  liquidators ;  that  is  quite  another 
question,  but  the  order  of  the  vice-chancellor,  in  its  present  form, 
cannot  stand,  and  will  be  discharged.  All  we  do  is  to  discharge 
the  vice-chancellor's  order,  without  prejudice  to  any  proof  that  may 


^6  SUBJECT-MATTER. 

be  made  by  the  Birmingham  Bank  in  respect  of  moneys  advanced  to 
the  bank  in  Hquidation ;  the  Uquidators  to  have  their  costs  of  this  ap- 
peal out  of  the  estate ;  and  the  costs  of  the  respondents  of  this  appeal 
to  depend  upon  the  result  of  the  proof  they  may  offer  in  respect  of 
the  moneys  advanced/ 


CROW  V.  CARTER. 
1892.    Appellate  Court  of  Indiana.    5  Ind.  App.  169. 

Reinhard,  C.  J. — Action  by  the  appellees  against  the  appellant 
on  a  subscription  paper,  by  which  Crow  promised  to  pay  Carter  one 
hundred  dollars  for  the  purpose  of  piping  gas  from  a  certain  well  to 
a  point  where  it  could  be  used  by  these  parties  and  other  citizens  of 
the  community.  The  contract  was  afterward  assigned  by  Carter  to 
the  appellees.  ^  There  was  an  answer  of  non  est  factum.  Upon  trial 
in  the  court  below  the  appellees  recovered. 

No  question  is  made  as  to  the  consideration,  nor  is  it  denied  by 
the  appellant  that  he  agreed  to  the  contract  as  embodied  in  the  writ- 
ten instrument  declared  upon.  He  admits  that  he  authorized  Carter 
to  sign  his  name  to  the  paper,  but  claims  that  such  signature  was 
invalid  and  not  binding  on  him. 

Numerous  authorities  are  cited  by  appellant's  learned  counsel  in 
support  of  the  contention  that  an  agency  cannot  be  assumed  by  one 
of  two  contracting  parties  for  the  other,  and  it  is  urged  with  con- 
siderable force  and  earnestness  that  these  authorities  declare  that 
one  of  such  contracting  parties  cannot  validly  place  the  signature  of 
the  other  to  the  contract,  even  at  his  request  and  in  his  presence.  We 
have  examined  the  authorities  relied  upon  and  our  conclusion  is 
they  do  not  apply  to  a  case  like  the  one  here  presented.  They  have 
reference,  almost  entirely,  to  cases  coming  within  the  purview  of  the 
statute  of  frauds,  and  but  express  in  different  forms  the  familiar  rule 
that  where  a  written  instrument  is  necessary  to  the  validity  of  a  con- 
tract, under  the  statute,  one  of  the  contracting  parties  may  not  be 
the  other's  agent,  even  for  the  purpose  of  signing  the  contract.  No 
question  arises  here  under  the  statute  of  frauds.    The  act  of  signing 

^  The  concurring  opinion  of  Selwyn,  L.  J.,  is  omitted. 

Cited  and  approved  in  Ex  parte  Agra  Bank,  L.  R.  6  Ch.  206. 

"Also  there  are  some  things  personal,  and  so  inseparably  annexed  to  the 
person  of  a  man,  that  he  cannot  do  them  by  another,  as  doing  of  homage  or 
fealty.  So  it  is  held  in  33  E  3,  Trespass  253,  the  lord  may  beat  his  villain  for 
cause,  or  without  cause,  and  the  villain  shall  not  have  any  remedy;  but  if  the 
lord  commands  another  to  beat  his  villain  without  cause,  he  shall  have  an  ac- 
tion of  battery  against  him  who  beats  him  in  such  case."  Combe's  Case,  9 
Co.  75a,  76.      ' 

Regarding  the  question  whether  an  agent  can  be  given  authority  to  answer 
interrogatories  on  oath,  see  Dickson  v.  Morgan,  7  La.  Ann.  490. 


name  was  but  a  mechanical  performance,  and  the  ap- 
'jrht  to  avail  himself  of  the  services  of  the  appellee  for 
is  much  as  he  would  that  of  a  stamp  or  other  instru- 
choose  to  employ.     ~"         "  •  Crow 

o  the  contract  n.'^  str  '.  upon. 

oi  affixing  the  '  equired  to 

some  disinteresL-  ecuting  by 

■  contract  under  the  statute  oi  -r  signature 

men  in  the  presence  and  at  the  ^arty  to  be 

d,  and  where  such  is  the  ca<^e  the  that  of  the 

iiimself.    Croy  v.  Bu       '  •    more- 

was  complete  when  i.  ".d  ac- 

•  the  instrument  as  emuudyiii^  the  tc  it. 

. 't  of  signing  may  be  no-  ''  rraed  in  m  1 

e  instrument  may  be  '  '  accepted  by  th< 

•^- '"I  at  all.    Not  so  ,..  •,    ^  - pect  to  contracts  iu..t  ic.     ■     ,..- 
of  frauds.    These  are  required  to  be  in  writing  and  signed 
'•  be  charged  therewith,  "or  by  some  person  thereunto 
y  authorized."    Section  4904,  R.  S.  1881,  et  seq.    The 
■  •.!;  of  a  contract  not  v,  statute,  such  as  the  one  in  suit, 

an  evidence  of  its  at  as  such  contract,  and  the  signa- 

not  essential  to  its  validity, 
•'^^nt  affirmed. 

iving  died  before  the  date  of  submission,  William  Walker, 
^r,  was  substituted  as  appellant,  and  it  is  adjudged  that  said 
ay  the  costs  of  this  appeal  out  of  the  assets  of  said  Crow's 


N-r-  .    ^VOOD. 

OURT  OF  MASi>-\(.  UL^J- 11;,. 
••   133. 

•OKER  acting  for  both  n  effecting  an-exchange  of  prop- 

•(■cover  compensation  from  neither,  unless  his  double  em- 
vas  known  and  assented  to  by  both. 

to  recover  a  broker's  commission.     At  the  trial  in  the 

..-.•..   ,.  ,.^|.  q£  Worcester  it  appeared  that  the  defendant 

tiffs  to  exchange  his  stocks  for  real  estate,  and 

"■  r;  that  at  th' 
to  s^n  or  e^ 


There  was  evider. 


At  the  } 

•h   the 

he  real  estate. 

ins     '.>^iv. 

-■■-'  ■^  ■t.-.i  -'^ 

•igc ;  thr. 

f  moneys  advanced  to 
iheir  costs  of  'l.i-  .in- 
indents  of  th 


Ind.  App.  161 


a.ga\n<^t 

tht"  iipnellant 

vuiiised  ' 

;as  froi! 

"ties  and  other  citizens  01 

'■'1  assigned 

),-    r.-i.-r  to 

.    factuiu 

.rial 

itifi, 

it  denied  by 

■  ■  the  writ- 

(1  Carter 

ure  was 

unsel  in 


anc! 


.  irc  tnat 

iatnre  of 

'.  m  iiis  presence.   We 

lid  our  conclusion  is 

:e  here  presented.    They  have 

'•'-  within  the, purview  of  the 

'It  forms  the  familiar  rule 

-ary  to  the  validity  of  a  con- 

ntracting  parties  may  not  be 

ing-  the  contract.    No 

The  art  of  sicrninG: 


■•d  to  the 


ve  an  ac- 
.     .        _    ..„-  3  Case,  9 

/en  authority  to  answer 
Ann.  490. 


WHAT    CAN    BE   DONE   BY   AGENT.  57 

the  appellant's  name  was  but  a  mechanical  performance,  and  the  ap- 
pellant had  a  right  to  avail  himself  of  the  services  of  the  appellee  for 
that  purpose,  as  much  as  he  would  that  of  a  stamp  or  other  instru- 
ment he  might  choose  to  employ.  There  is  no  pretense  that  Crow 
did  not  agree  to  the  contract  as  stated  in  the  instrument  sued  upon. 

The  act  of  affixing  the  appellant's  signature  was  not  required  to 
be  done  by  some  disinterested  person  as  in  the  case  of  executing  by 
an  agent  a  contract  under  the  statute  of  frauds.  Here  the  signature 
was  written  in  the  presence  and  at  the  direction  of  the  party  to  be 
charged,  and  where  such  is  the  case  the  act  is  regarded  as  that  of  the 
party  himself.  Croy  v.  Busenbark,  y2  Ind.  48.  The  contract,  more- 
over, was  complete  when  the  minds  of  the  parties  had  met  and  ac- 
cepted the  instrument  as  embodying  the  terms  of  their  agreement. 
The  act  of  signing  may  be  performed  in  many  ways  and  be  valid, 
and  the  instrument  may  be  binding,  if  accepted  by  the  parties,  though 
not  signed  at  all.  Not  so  with  respect  to  contracts  that  fall  within 
the  statute  of  frauds.  These  are  required  to  be  in  writing  and  signed 
by  the  party  to  be  charged  therewith,  ''or  by  some  person  thereunto 
by  him  lawfully  authorized."  Section  4904,  R.  S.  1881,  et  scq.  The 
signing  of  a  contract  not  within  the  statute,  such  as  the  one  in  suit, 
is  but  an  evidence  of  its  acceptance  as  such  contract,  and  the  signa- 
ture is  not  essential  to  its  validity. 

Judgment  affirmed. 

Crow  having  died  before  the  date  of  submission,  William  Walker, 
his  executor,  was  substituted  as  appellant,  and  it  is  adjudged  that  said 
executor  pay  the  costs  of  this  appeal  out  of  the  assets  of  said  Crow's 
estate. 


RICE  V.  WOOD. 

1873.     Supreme  Judicial  Court  of  AIassachusetts. 
113  ]\Iass.  133. 

A  broker  acting  for  both  parties  in  effecting  an  exchange  of  prop- 
erty can  recover  compensation  from  neither,  unless  his  double  em- 
ployment was  known  and  assented  to  by  both. 

Contract  to  recover  a  broker's  commission.  At  the  trial  in  the 
central  district  court  of  Worcester  it  appeared  that  the  defendant 
employed  the  plaintiffs  to  exchange  his  stocks  for  real  estate,  and 
that  he  agreed  to  pay  them  a  commission  therefor ;  that  at  this  time 
the  plaintiffs  were  also  employed  by  other  parties  to  sell  or  exchange 
their  real  estate ;  that  the  plaintiffs  introduced  the  defendant  to  these 
parties,  and  through  the  plaintiff's'  instrumentality  the  defendant's 
stock  was  exchanged  for  the  real  estate.  There  was  evidence  that 
the  plaintiffs  were  employed  and  acted  as  brokers  for  both  parties  in 
this  exchange ;  that  they  were  to  receive,  and  did  receive  from  the 


58  SUBJECT-jMATTER. 

owners  of  the  real  estate  a  commission  for  disposing-  of  it ;  that  the 
defendant  knew  at  the  time  he  employed  them  and  agreed  to  pay 
them  a  commission  that  they  w^ere  employed  by  the  owners  of  the 
real  estate  to  dispose  of  it,  and  that  they  were  to  receive  a  commission 
from  them,  but  that  the  other  parties  did  not  know  that  the  plaintiffs 
were  employed  by  the  defendant,  or  that  they  were  to  receive  a  com- 
mission from  him  for  disposing  of  the  stock. 

The  defendant  asked  the  court  to  instruct  the  jury  that  if  a  broker 
acts  for  both  parties  in  effecting  a  sale  or  exchange  of  property,  he 
cannot  recover  compensation  from  either  of  the  parties,  unless  both 
parties  knew  and  assented  to  his  acting  for  both. 

The  court  refused  to  give  the  instruction  prayed  for,  but  did  in- 
struct the  jury  as  follows :  "If  the  plaintiffs  were  employed  by  the 
defendant  as  brokers  to  exchange  his  stock  for  real  estate,  and  he 
was  informed  by  them,  or  had  knowledge,  that  they  were  to  make 
the  exchange  with  persons  whose  estates  had  been  left  in  their  hands 
for  exchange  or  ^ale,  and  that  they  were  to  receive  commissions  from 
those  persons  for  disposing  of  their  estates,  and  that  with  this  knowl- 
edge the  defendant  agreed  to  pay  the  plaintiffs  a  commission  for 
making  the  exchange,  the  fact  that  the  plaintiffs  were  employed  by 
and  were  to  receive  a  commission  from  the  other  parties  would  not 
in  itself  defeat  the  plaintiff's'  claim." 

Devens,  J.  In  this  case  there  was  evidence  at  the  trial  in  the  court 
below  that  the  plaintiffs  had  been  employed  by  a  third  person,  who 
had  promised  to  pay  them  a  commission  therefor,  to  dispose  of 
certain  real  estate,  and  that  afterward,  without  the  knowledge  of 
such  person,  an  agreement  was  made  between  the  plaintiff's  and  the 
defendant,  by  w'hich  the  plaintiffs  were  employed  to  act  for  the  de- 
fendant in  the  exchange  of  certain  stocks  held  by  him  for  real  es- 
tate, and  were  promised  a  commission  if  such  exchange  should  be 
effected,  the  defendant  knowing  at  the  time  that  the  plaintifi^s  were 
employed  for  a  commission  to  sell  such  real  estate ;  and  further  that 
afterward  the  plaintiffs  introduced  the  defendant  to  the  owner  of 
such  real  estate,  and  by  the  instrumentality  of  the  plaintiffs  the 
exchange  of  defendant's  stock  for  such  real  estate  was  effected. 

If  this  were  an  action  by  the  plaintiffs  against  the  owner  of  the 
real  estate,  for  commissions  earned  in  disposing  thereof,  the  decision 
of  this  court  in  Farnsworth  v.  Hemmer,  i  Allen  494,  would  be  con- 
clusive against  the  claim,  upon  the  ground  that  the  plaintiffs,  if  such 
facts  should  be  proved,  had  entered  into  a  relation  inconsistent  with 
the  confidence  reposed  in  them  by  such  owner,  and  placed  them- 
selves in  a  position  antagonistic  to  his  interests.  This  case  presents, 
however,  the  question  w'hether,  conceding  that  the  plaintiffs  could 
not  recover  their  commissions  from  the  owner  of  the  real  estate,  they 
may  not  recover  those  they  claim  to  be  entitled  to  from  the  defend- 
ant, as  he  knew  fully,  at  the  time  of  entering  into  his  contract,  the 
relation  in  which  the  plaintiffs  stood  to  the  third  party. 


59 

It  Avas  the  (iuty  of  the  plaintiffs  to  get  the  hisrhest  price  for  the 

,-.  ■  '  ■             ■   13(1  for  it  ill    '             '         while  the 

(■  'id  the  defer                         ■idiirement 

to  the  '! 

1n\v(  r  -y 

ir  commissions  from  bor  e- 

[-  y.  Osgood, 

.,;    .      -S.  345. 

tracts  wliich  are  opp^  ht  and  no-  are 


this  character,    it  t  e 

v_,,v  UCr   of    1!"''    "'-'i^    ,-;-rj"v  ,.,,    jil- 

;ent  to  [  -\  they 

shonid  not  be  rj.;^.',v;:  1  1/.  -oiiv-'i  t'^L  pi'jij:''-fti  '/lvi-  he 

sal*""  rif  the  =tork.  which  was  thp  consideration  for  ut 

one  can  be  perniuteJ  ic  Juund 

•ainst  another  also  in  the  wrong. 

ie  to  one  in  consideration  of  doing  an  unlawful  act, 

.in  assault  ■.-•  '     v^r-.'■■^■.■^  n  fraud  upon  a  third  person, 

'  in  law ;  and  the  avoid  contracts,  the  avowed 

T  -rpress  objcLi  i.i   \    ;;.  M  i-  io  do  an  unlawful  act,  but 

■\\\  a  view  to  place,  or  the  necessary  effect  of  which  is 

ider  wrong  influences,  an  '  '  'm  a  temptation 

usly  affect  the  rights  of  1  ^ns.    A'or  is  it 

ary  to  show  that  injury  to  third  persons  has  ;  osulted 

-iirli  ;i  rrnifrriri-,  for  in  many  cases  where  it  ha  cd  this 

))roved.    The  contract  is  avoided  on  ac- 

.jurious  tendency     T.\.\\n,-  .-    rv ,,-.,     .« 

ii  opiiaux;,  ;         "         that  the  ju.  at  tiic; 

''n  th°  'n=;tr  -en,  and  tha  as  en- 

like  that  asked  for.   jl\ui  can  the 
I  suo^crfS'od  't  j'-ip  br-r.  that  the 
■  dlemen  onl;  cr  and 

.  ..ihcr,  the  part,.  >  ^.o^.r-^.,  .^fi-.o- 

:mpson,  16  Gray  398,  the  pi 

rvices  rendered  to  the  det-.ri'aant  >:.;  u  oroiMji',  r-i.r 
i  of  a  certain  specific  act,  namely,  the  introduction 
10  him,  the  parties  after  such  introduction  mak- 
'act.  It  was  there  held  that  this  was  not  such  a 
::er  party,  who  also  paid  for  the  service  of  the 
■1  ^'^  'ii'ii^.'-h  concealed  from  such  p 'ill  V  . 
•  make  ;  iff  with  the  defendant  \ 


iction  |-;i 
laintiffs  wvr- 
stock  for  1 


tliat  the 


from  ti 


commission  for 

-    r-'T^ loved  by 

ould  not 


I  for  the  de- 
ll'.M  D)-  mm  for  real  cs- 
such  exchange  should  be 
I  the  time  that  the  plaintiffs  were 
:  such  real  estate ;  and  further  that 
ntroduced  the  defendant  to  the  owner  of 


;t  S 


,    the  instrumentality  of  1' 
stock  for  such  real  estate 


^■^■■^i■ff<     thv 


.:  ...     ..        .1,  .     .^1      ......  /..._    ..  ....     .  .,     . 

'\\  !!'-■'.      Ol      Ll!f 

,  the  decision 

.-,  I  Aiici\  ^  ■ 

'  I  be  con- 

and  that  the 

.  if  such 

d,  had  entered  into  a  relation 

cnt  with 

■d  in  them  by  such  owmi. 

.!   ihc!n- 

.:onistic  to  his  inti 

hether,  concedinL 

ions  from  the  o\\  > 

Vic  tliiid  party. 


WHAT    CAN    BE   DONE   BY   AGENT.  59 

It  was  the  duty  of  the  plaintiffs  to  get  the  highest  price  for  the 
real  estate  that  could  be  obtained  for  it  in  the  market ;  while  the 
contract  between  the  plaintiffs  and  the  defendant  was  an  inducement 
to  the  plaintiffs  to  eft'ect  a  sale  to  the  defendant,  even  if  it  was  on 
lower  terms  than  might  have  been  obtained  from  others,  because  they 
thereby  secured  their  commissions  from  both  parties.  It  was  there- 
fore an  agreement  which  placed  the  plaintiffs  under  the  temptation 
to  deal  unjustly  with  the  owner  of  the  real  estate.  Walker  v.  Osgood, 
98  Mass.  348. 

Contracts  which  are  opposed  to  open,  upright  and  fair  dealing  are 
opposed  to  public  policy.  A  contract  by  which  one  is  placed  under  a 
direct  inducement  to  violate  the  confidence  reposed  in  him  by  an- 
other is  of  this  character.  If  the  plaintiffs  were  guilty  of  injustice 
to  the  owner  of  the  real  estate,  by  placing  themselves  under  an  in- 
ducement to  part  with  it  at  less  than  its  full  market  value,  they 
should  not  be  allowed  to  collect  the  promised  commissions  on  the 
sale  of  the  stock,  which  was  the  consideration  for  which  they  put 
themselves  in  such  a  position.  No  one  can  be  permitted  to  found 
rights  upon  his  own  wrong,  even  against  another  also  in  the  wrong. 
A  promise  made  to  one  in  consideration  of  doing  an  unlawful  act, 
as  to  commit  an  assault  or  to  practice  a  fraud  upon  a  third  person, 
is  void  in  law ;  and  the  law  will  not  only  avoid  contracts,  the  avowed 
purpose  or  express  object  of  which  is  to  do  an  unlawful  act,  but 
those  made  with  a  viev.^  to  place,  or  the  necessary  effect  of  which  is 
to  place,  a  person  under  wrong  influences,  and  offer  him  a  temptation 
which  may  injuriously  affect  the  rights  of  third  persons.  Nor  is  it 
necessary  to  show  that  injury  to  third  persons  has  actually  resulted 
from  such  a  contract,  for  in  many  cases  where  it  had  occurred  this 
would  be  impossible  to  be  proved.  The  contract  is  avoided  on  ac- 
count of  its  necessarily  injurious  tendency.  Fuller  v.  Dame,  18 
Pick.  472. 

We  are  of  opinion,  therefore,  that  the  judge  who  presided  at  the 
trial  erred  in  the  instruction  given,  and  that  the  defendant  was  en- 
titled to  an  instruction  substantially  like  that  asked  for.  Nor  can  the 
ruling  be  sustained  upon  the  ground  suggested  at  the  bar,  that  the 
plaintiffs  were  middlemen  only,  bringing  the  parties  together  and 
doing  nothing  further,  the  parties  themselves  making  the  contract. 
In  Rupp  V.  Sampson,  16  Gray  398,  the  plaintiff  was  permitted  to 
recover,  not  for  services  rendered  to  the  defendant  as  a  broker,  but 
for  the  performance  of  a  certain  specific  act,  namely,  the  introduction 
of  the  other  party  to  him,  the  parties  after  such  introduction  mak- 
ing their  own  contract.  It  was  there  held  that  this  was  not  such  a 
fraud  upon  the  other  party,  who  also  paid  for  the  service  of  the 
plaintiff  in  introducing  him,  although  concealed  from  such  party,  as 
to  make  the  contract  of  the  plaintiff  with  the  defendant  void  for 
illegality.  That,  however,  is  not  the  present  case.  It  here  appears, 
by  the  bill  of  exceptions,  not  only  that  there  was  evidence  that  the 


6o  SUBJECT-MATTER. 

plaintiffs  introduced  the  parties,  but  that,  through  the  instrumentality 
of  the  plaintiffs,  the  exchange  was  effected,  and  that  in  effecting 
such  exchange  the  plaintiffs  acted  as  brokers  for  both  parties.  It  is 
to  be  observed  also,  that  both  the  instructions  asked  for  by  the  de- 
fendant and  those  given  by  the  presiding  judge  proceed  upon  the 
ground  that  the  plaintiffs  were  brokers,  and  not  middlemen  only. 
Exceptions  sustained.^ 


COX  V.  HAUN. 
1890.     Supreme  Court  of  Indiana.     127  Ind.  325. 

Elliott,  J.  This  case  has  been  twice  tried,  and  the  result  in  each 
instance  has  been  against  the  appellant.  He  asks  a  reversal  upon 
the  ground  that  the  trial  court  erred  in  denying  him  a  new  trial. 

The  point  is  made  that  the  verdict  is  not  sustained  by  the  evidence, 
and,  in  support  of  this  point,  it  is  urged  that  the  evidence  fails  to 
establish  a  fact  essential  to  a  recovery.  The  fact  which  it  is  said  is 
not  proved  is  that  the  appellant  did  not  have  knowledge  that  the  ap- 
pellee was  acting  for  the  parties  in  making  an  exchange  of  real 
estate.  To  understand  the  question  it  is  necessary  to  outline  the  facts. 
The  appellee  was  a  real  estate  broker,  and  had  in  his  hands  for  sale 
a  farm  belonging  to  Avery  Fish.  The  appellant  asked  the  appellee 
if  he  had  a  farm  which  he  could  exchange  for  property  in  the  city 
of  Lebanon,  and  this  opened  the  negotiations  which  led  to  the  ex- 
change of  property.  After  several  interviews  the  two  owners  were 
brought  together,  and  an  exchange  effected,  the  owners  fixing  the 
terms  of  the  exchange.  The  meeting  took  place  in  the  appellee's 
office,  and  the  terms  of  the  exchange  were  there  agreed  upon  by  the 
owners  themselves  without  any  suggestions  as  to  terms  from  the 
broker.  The  appellee,  in  his  testimony,  says  that  the  owners  "knew 
that  he  was  acting  as  agent  for  them  both,"  and  he  also  testifies  that 
the  appellant  agreed  to  pay  him  a  commission  of  one  and  a  half  per 
cent.  This  evidence  fully  sustains  the  verdict.  It  is  probable  that 
without  any  direct  testimony  showing  that  the  appellant  knew  that 
the  broker  was  acting  for  the  other  party  to  the  exchange  the  fact 
that  he  was  so  acting  would  be  necessarily  inferable  from  the  fact 
that  the  appellant  knew  the  business  in  which  the  appellee  was  en- 

^  "I  entertain  no  doubt,  however,  that  when  a  bribe  is  given,  or  a  promise  of 
a  bribe  is  made,  to  a  person  in  the  employ  of  another,  by  some  one  who  has 
contracted,  or  is  about  to  contract,  with  the  employer,  with  a  view  to  inducing 
the  person  employed  to  act  otherwise  than  with  loyalty  and  fidelity  to  his  em- 
ployer, the  agreement  is  a  corrupt  one,  and  is  not  enforceable  at  law,  whatever 
the  actual  effect  produced  on  the  mind  of  the  person  bribed  may  be."  Cock- 
burn,  C.  J.,  in  Harrington  v.  Victoria  Graving  Dock  Co.,  L.  R.  3  Q.  B.  D.  549, 
551- 


AIT' 

g-Oi^ed,  and  knew  ti...,  .  already  had  in  his  hands,  as  brok^..  ._ 
]>!.  •    rty  of  the  other  party  to  the  contract  of  exchange. 

If  an  owner  goes  to  a  broker  and  promises  to  pay  him  a  commis- 

:  )n  for  effecting  an  exchange  with  another  owner  who  has  already 

■     cd  the  broker,  it  is  no  more  than  reasonable  to  infer  that  he 

with  knowledge  th^t  if  the  broker  rendered  service  to  both 

parties  he  will  expect  co  '  .n  from  both  of  them. 

It  is  a  mistake  to  sup;  an  ordinary  real  estate  broker  occu- 

pies the  same  position  as  an  agent  employed  to  buy  or  sell  specific 
pro|^f^rty,  for  such  a  broker  '-^  ■■  •-'-ally  a  middleman,  employed  to 
ir-j;     the  principals  togethei  e  them  an  opportunity  to  effect 

a;  e  of  property.    I  right,  Ii6  L   '    -    '  ,  Vinton  v. 

1  •  Ind.  104;  Ale.\  North  Wesr  :stian  Uni- 

. ,  57  Ind.  466 ;  Rowe  v.  Sic>  cas,  53  N.  Y.  621 ,  ivupp  v.  Samp- 
o  Gray  39S ;  Barry  v.  Schmidt,  27  Alb.  L.  J.  297;  Stewart  v. 
■     .    :.  32  Wis.  344;  Herman  v.  Martineau,  i  Wis.  136.    If  the 
is  guilty  of  fraud,  or  if  h-  ^"^' -  any  advantage  of  his  posi- 
'  the  injury  of  his  princir  :iinot  recover  commissions; 

'  i  :       lore,  as  here,  he  acts  in  g<.(  j  ;.'.itn,  brings  the  principals  to- 
in  his  own  office,  and  they  make  their  own  hriVg^Lm,  uninflu- 
■y  any  representations  of  his,  he  is  enti' 
trial  court  did  not  err  in  treating  the  .- 
■he  ground  of  newly-discovered  evidence,  as  msutticient. 


Section  2. — Contract  of  Appointment  for  Illegal  Purpose. 

rr  TPPTvr.TTT:'  ,..   tttttt;  at*.":!-! 

Supreme  Court  of  i'ENNSvLVANiA.     5  WalU  and  berg.  315. 

w^as  an  action  on  a  written  agreement  in  which  defendant 

— r)   promised  to  pay  '''     •      •■+iff   (Hcpbaugh)   one  hun- 

'.  on  condition  that  ;  procure  a  certain  law.  of 

"     r,  to  be  e.i;:.c:c^  by  the  '<:    "  '  '   '"     ■^- 

ing  succeeded  in  having  '■' 

■■ .   Tiic  practice  which  has  generally  obtutiifd  in  ilir 
contingent  compensation  for  legal  services^  has  i  . 

or  hrcker  .'vmi'-vvl  I-/  r'-rc^ar->;  f":r  Tii-  -irificin:!'  :annot  hc-^-'i;.: 


"at  held  bv  t 


■Svd  ro  tJ; 


!  rj/'_'i  ',':i   •^   m; 


'le  instrn 

.  that  in ^ 

M,)r  both  parties.    It  is 

oi.^  askf^'i  *■      ''V  ♦'■:--  ■]<: 
judge  f 
■i  not  miadicineu  oaiy. 


at.    He  asks  a 


•tpon 


>  urged  tlia 
very.  Tlu  ■■ 
d  not  ha 


ience  lails  to 

1  it  is  said  is 

that  the  ap- 

•'■'/:  of  real 

he  facts. 


owners  were 

'•s  fixing  the 

he  appellee's 

•  LIJ.M    jd  upon  by  the 

s  to  terms  from  the 

,.  ■cnys  tliat  the  owners  "knew 

oth,"  nnd  he  also  ■'^sHfies  ^hat 

oi  one  ; 

t.    It  is  i  .  ,  •  • 

,  mg  that  the  appellant  knew  that 

■'■  ''■arty  to  the  exchange  the  fact 

sarily  inferable  from  the  fact 

hich  the  '     '  was  en- 


549, 


APPOINTMENT    FOR    ILLEGAL   PURPOSE.  6l 

gaged,  and  knew  that  he  already  had  in  his  hands,  as  broker,  the 
property  of  the  other  party  to  the  contract  of  exchange. 

If  an  owner  goes  to  a  broker  and  promises  to  pay  him  a  commis- 
sion for  effecting  an  exchange  with  another  owner  who  has  already 
employed  the  broker,  it  is  no  more  than  reasonable  to  infer  that  he 
does  so  with  knowledge  that  if  the  broker  rendered  service  to  both 
parties  he  will  expect  compensation  from  both  of  them. 

It  is  a  mistake  to  suppose  that  an  ordinary  real  estate  broker  occu- 
pies the  same  position  as  an  agent  employed  to  buy  or  sell  specific 
property,  for  such  a  broker  is  generally  a  middleman,  employed  to 
bring  the  principals  together,  and  give  them  an  opportunity  to  effect 
an  exchange  of  property.  Pape  v.  Wright,  ii6  Ind.  502;  Vinton  v. 
Baldwin,  88  Ind.  104;  Alexander  v.  North  Western  Christian  Uni- 
versity, 57  Ind.  466 ;  Rowe  v.  Stevens,  53  N.  Y.  621 ;  Rupp  v.  Samp- 
son, 16  Gray  398 ;  Barry  v.  Schmidt,  27  Alb.  L.  J.  297 ;  Stewart  v. 
Mather,  32  Wis.  344;  Herman  v.  Martineau,  i  Wis.  136.  If  the 
broker  is  guilty  of  fraud,  or  if  he  takes  any  advantage  of  his  posi- 
tion to  the  injury  of  his  principal,  he  cannot  recover  commissions; 
but  where,  as  here,  he  acts  in  good  faith,  brings  the  principals  to- 
gether in  his  own  office,  and  they  make  their  own  bargain,  uninflu- 
enced by  any  representations  of  his,  he  is  entitled  to  compensation. 

The  trial  court  did  not  err  in  treating  the  showing  for  a  new  trial 
upon  the  ground  of  newly-discovered  evidence,  as  insufficient. 

Judgment  affirmed.^ 


Section  2. — Contract  of  Appointment  for  Illegal  Purpose. 

CLIPPINGER  V.  HEPBAUGH. 
1843.     Supreme  Court  OF  Pennsylvania.     5  Watts  and  Serg.  315. 

This  was  an  action  on  a  written  agreement  in  which  defendant 
(Clippinger)  promised  to  pay  the  plaintiff  (Hepbaugh)  one  hun- 
dred dollars  on  condition  that  he  should  procure  a  certain  law,  of 
interest  to  the  defendant,  to  be  enacted  by  the  legislature  of  Penn- 
sylvania, Hepbaugh  having  succeeded  in  having  said  law  enacted.^ 

Rogers,  J.  The  practice  which  has  generally  obtained  in  this  state, 
to  allow  a  contingent  compensation  for  legal  services,  has  been  a 

^"An  agent  or  broker  employed  to  purchase  for  his  principal  cannot  become 
the  seller  without  notice  to  the  principal.  If  appellees,  as  commission  mer- 
chants, were  employed  by  appellants  to  go  upon  the  market  and  buy  for  them 
a  certain  quantity  of  wheat  for  cash,  this  would  not  authorize  appellees  to 
turn  over  to  appellants  wheat  held  by  them,  even  if  they  charged  no  more 
than  the  market  price,  unless  the  fact  was  disclosed  to  the  principals."  Craig, 
J.,  in  Tewksbury  v.  Spruance,  75  111.  187,  188. 

'  The  reporter's  statement  of  facts  is  condensed. 


62  SUBJECT-MATTER. 

subject  of  regret,  nor  am  I  aware  of  any  direct  decision  by  which 
the  practice  has  received  judicial  sanction  in  our  courts.  Biit  con- 
ceding the  principle  to  be  as  is  assumed,  it  is  very  certain  that  it  has 
not  yet  been  extended  to  the  allowance  of  a  compensation  for  serv- 
ices in  our  legislative  halls.  The  point,  therefore,  comes  before  us, 
untrammeled  either  by  inveterate  practice  or  authoritative  decisions. 
Such  services,  be  it  remembered,  are  not  confined  to  the  legal  pro- 
fession. They  are  common  to  every  class  of  citizens,  and  if  we 
should  give  countenance  and  a  legal  sanction  to  this  attempt,  which 
is  the  entering  wedge,  it  is  impossible  to  foretell  the  train  of  evils 
of  which  it  may  be  the  prolific  parent.  Already  is  there  too  much 
reason  to  believe  that  this  indispensable  branch  of  government, 
without  which  our  whole  political  fabric  would  crumble  into  ruins, 
has  in  some  instances  been  contaminated  by  sinister  and  improper 
influences  brought  to  bear  on  members,  and  no  doubt  having  their 
source  in  the  direct  and  indirect  efforts  of  individuals  retained  under 
the  hope  of  reward  in  the  event  of  success.  It  cannot  be  avoided 
that  such  influences,  privately  and  secretly  exerted  under  false  and 
covert  pretenses,  must  operate  deletcriously  on  legislative  action ; 
and  of  this  truth,  unfortunateh^,  our  annals  (I  do  not  speak  of  this 
state  alone)  have  afforded  some  melancholy  proofs.  There  is  at 
least  a  wide-spread  and  growing  suspicion  of  legislative  integrity, 
which  of  itself  is  an  evil  of  no  little  magnitude.  Its  pernicious  tend- 
ency seems  to  be  admitted  as  to  public  bills,  but  a  distinction  is  taken 
between  them  and  private  acts.  That  the  latter  may  not  prove  so 
pernicious  as  the  former  (of  which,  by  the  bye,  I  am  by  no  means 
satisfied),  may  be  conceded  without  danger  to  the  argument;  but 
the  principle,  with  which  alone  we  have  to  do,  is  the  same.  When 
it  is  recollected  that,  with  the  rapid  increase  of  wealth  and  popula- 
tion, such  acts  have  greatly  multiplied,  and  have  assumed  an  im- 
portance before  unknown;  and  when  it  is  remembered  (with  all  due 
respect  be  it  spoken)  that  comparatively  so  little  care  is  taken  in  the 
preparation  of  private  bills,  or  in  giving  notice  to  persons  interested 
in  the  examination  of  the  evidence  on  which  they  are  founded,  that 
the  information  of  members  is  derived,  altogether  or  in  part,  from 
the  applicant  himself,  and  the  secret  whisperings  of  his  friends,  we 
cannot  be  too  much  on  our  guard  against  them,  nor  insist  too  strongly 
on  the  necessity  of  preserving,  as  far  as  can  be  done,  the  source  from 
which  the  evidence  on  which  they  act  is  obtained.  It  would  not  be 
becoming  in  us  to  lend  our  aid  in  a  transaction  which  may  be 
founded  in  corruption,  and  steeped  in  fraud. 

These  remarks  are  not  to  be  understood  as  having  any  relation 
to  the  case  in  hand,  for  no  suspicion  is  entertained  that  anything 
out  of  the  ordinary  course  took  place  in  respect  to  this  bill.  Yet  it 
cannot  escape  observation  that  even  here  an  inducement  was  not 
wanting  to  an  improper,  or  at  least  personal  influence,  or  deceptive 
acts,  to  procure  the  success  of  the  measure.   The  temptation  may  be 


\L  PURPOSE. 


IS  not  always  been  confined  v.•i^hit^  stich  narrow 
great  reason  to  fear.    W  .  it  is  not 

....   _-se  to  say,  that  a  certain  ^.  for  such 

r  not  be  recovered;  but  we  are  cl  .^on  that  it 

-:-i?t  sound  polic}'  to  -  •■•-'■   ■    -  •  '    -"ly  lead 

J  per  and  corrupt  m.  It 

iS  not  :  ihat  it  t. :   '  j  mislead, 

it  is  (!•  ainst  th;  ■y,  no  hu- 

man bt'ui^  can  reasonably  •  Watts 

15 J V  ':':  i~  decided  that  a  co  i<  ree- 

I  cure  signatures  r, 

] .  and  cannot  be  '  , 
'■  f  it  is  essential  t 

"  ijm  imposition  in  U!c  exercise  ui  :- 

Ay  so  to  extend  the  same  protection  f 

;ue.    It  is  of  the  first  consequence  thai  iiitiy 
'.  that  they  should  be  protected  from  the  ari 
ons  of  designing  men,  having  an  interest  ■ 
'•'■'-■  "'  'luty. 

st  erroneous  to  assi" 
■1,  riKM.  a. practice,  leading  to  .sucn  consequences,  is  noi 
■  private  interest  and  public  morals.    The  reverse  is  too 
.,>r  already  has  a  class  of  persons  arisen,  at  the  seat  of  the 
!  government  and  elsewhere,  who  make  it  a  business  to  push 
li  private  claims,  for  a  compensation  greatly,  if  not  entirely, 
"on  success.    How  demoralizing  this  may  be,  it  needs  not 
prophecy  to  foretell.   Nay,  more;  we  feel  its  effects,  for 
ible  to  shut  our  eyes  at  the  consequences  of  -this,  with 
>,  daily  developing  themselves  in  the  decline  of  hisfice 
ds.  How  easy  the  transition  from  private  '  U 

>  themselves,  it  would  not  be  difficult  to  ■  it 

eft  to  conjecture,  for  we  are  not  without  examples,  wnich 
'  invidious  to  mention,  but  whicli  are  too  well  known, 
.buses  may  exist  elsewhere,  we  hope  -the  judicial  tribu- 
■  rntry  may  be  kept  pure,  without  suspicion  even,  that 
i  '  1   be  induced  under  a  pretense  to  countenance  vice, 

iCtion  to  a  principle,  the  inevitable  efifect  of  which  will 
'  if  it  does  not  create,  fraud  and  misrepresentation. 

■  painful  examples  to  the  contrary,  it  is.  idle  to 
extraneous  influence,  ad  in"    ^vi-retly  iipo?i  Mi-- 
slature,  is  not  pernicious  ,  st  inter 

■^•■■:'ncy  is  to  sap  ''-^  -'■  -■.i.'Uwik-,  of  a''  •- 
luthority  in  tate,  6  Dana 

'  '-red.    The   cci.ri,  it   ' 
•   was  on  the  fnecial  ' 


any  direct  decision  bv  which 


'in  our 

con- 

is  very 

has 

.   of  a  compcusa; 

^erv- 

:i,  therefore,  com 

us, 

riractice  or  authoritaii 

MIS. 

'■VI-  Ti.,1  confined  <o  i 

pro- 

s  of  citi 

!    we 

1.  i.ion  to  til' 

.  wliich 

..  to  foretell  ^ 

of  evils 

.rent.    Already  i 

■■,^ch 

pensable   brand 

■•■n1, 

.  fabric  won: 

of  success.    It  cannot  be  avoided 


.ind  secretly  ext 
e  deleterionslv 


!er  false  and 

itive   action; 

'  '.k  of  this 

■re   is   at 


•.nd  growing 
v'il  of  no  liti 
tted  as  to  p. 


iCvl  Vviti  uiu  ;  but 

alone  v,  ■  .    When 

the  rapid  increase  of  wealth  and  popula- 
itly  multiplied,  and  have  assumed  an  im- 
:  and  when  it  is  remembered  (with  all  due 

• nitively  so  little  care  is  taken  in  the 

giving  notice  to  persons  interested 
e  on  which  they 
rived,  altogether 
ret  whisperings 

xgainst  them,  nor  ,. 

as  far  as  can  be  done,  the  source  from 


thf 


"><    r'^-. 


■vould  not  be 
:ich  may  be 


fcpea  :i!  jryua. 

he  understood  -a 
'icion  is  ■ 
:)lace  in  re 

ir  even  here  an 

t  r.ncr  T)ersonal  ^ 
'  asure.   1 


"ion 


may  be 


APPOINTMENT    FOR    ILLEGAL    PURPOSE,  63 

small  here,  but  it  has  not  always  been  confined  within  such  narrow 
limits,  as  there  is  great  reason  to  fear.  We  do  not  say,  it  is  not 
necessary  to  the  case  to  say,  that  a  certain  compensation  for  such 
services  may  not  be  recovered ;  but  we  are  clearly  of  opinion  that  it 
would  be  against  sound  policy  to  sanction  a  practice  which  may  lead 
to  secret,  improper  and  corrupt  tampering  with  legislative  action.  It 
is  not  required  that  it  tends  to  corruption;  if  its  effect  is  to  mislead, 
it  is  decisive  against  the  claim ;  and  that  such  is  its  tendency,  no  hu- 
man being  can  reasonably  doubt.  In  Hatzfield  v.  Gulden  (7  Watts 
152),  it  is  decided  that  a  contract,  founded  on  a  promise  and  agree- 
ment to  procure  signatures  and  obtain  a  pardon  from  the  governor, 
is  unlawful,  and  cannot  be  enforced  by  action.  This  case  is  very  per- 
tinent, for  if  it  is  essential  to  the  purity  of  the  government  to  protect 
the  governor  from  imposition  in  the  exercise  of  the  executive  func- 
tions, it  is  equally  so  to  extend  the  same  protection  to  the  members  of 
the  legislature.  It  is  of  the  first  consequence  that  they  should  not 
be  deceived,  that  they  should  be  protected  from  the  arts  and  mis- 
representations of  designing  men,  having  an  interest  to  mislead  them 
from  the  paths  of  duty. 

It  is  therefore  most  erroneous  to  assume,  as  is  done  by  the  plain- 
tiff's counsel,  that  a  practice,  leading  to  such  consequences,  is  not 
contrary  to  private  interest  and  public  morals.  The  reverse  is  too 
true ;  for  already  has  a  class  of  persons  arisen,  at  the  seat  of  the 
general  government  and  elsewhere,  who  make  it  a  business  to  push 
through  private  claims,  for  a  compensation  greatly,  if  not  entirely, 
dependent  on  success.  How  demoralizing  this  may  be,  it  needs  not 
the  gift  of  prophecy  to  foretell.  Nay,  more ;  we  feel  its  effects,  for 
it  is  impossible  to  shut  our  eyes  at  the  consequences  of  this,  with 
other  causes,  daily  developing  themselves  in  the  decline  of  justice 
and  public  morals.  How  easy  the  transition  from  private  individuals 
to  the  members  themselves,  it  would  not  be  difficult  to  divine  ;  but 
we  are  not  left  to  conjecture,  for  we  are  not  without  examples,  v/hich 
it  would  be  invidious  to  mention,  but  which  are  too  well  known. 
Whatever  abuses  may  exist  elsewhere,  we  hope  the  judicial  tribu- 
nals of  the  country  may  be  kept  pure,  without  suspicion  even,  that 
they  may  never  be  induced  under  a  pretense  to  countenance  vice, 
or  lend  their  sanction  to  a  principle,  the  inevitable  effect  of  wdiich  will 
be  to  increase,  if  it  does  not  create,  fraud  and  misrepresentation. 
In  the  face  of  many  painful  examples  to  the  contrary,  it  is  idle  to 
say  that  individual,  extraneous  influence,  acting  secretly  upon  the 
members  of  the  legislature,  is  not  pernicious  to  the  best  interests  of 
society.  Its  direct  tendency  is  to  sap  the  foundations  of  all  morality. 
And  we  are  not  without  authority  in  a  sister  state,  6  Dana  366,  where 
this  point  has  been  considered.  The  court,  it  is  true,  decided  in 
favor  of  the  plaintiff;  but  it  was  on  the  special  grounds,  that  it  did 
not  appear  that  the  fee  was  contingent,  nor  that  the  plaintiff  was 
expected  or  required  to  do  anything  he  might  not  lawfully  have  done, 


64  SUBJECT-MATTER. 

or  that  he  had  any  personal  or  pecuniar}-  interest  in  the  success  of 
the  apphcation  to  the  legislature. 

The  whole  reasoning-  of  the  court,  however,  goes  to  establish  these 
propositions,  which  cannot  be  reasonably  denied.  That  the  law  will 
not  aid  in  enforcing  any  contract  that  is  illegal,  or  the  consideration 
of  which  is  inconsistent  with  public  policy  and  sound  morality,  or  the 
integrity  of  the  domestic,  civil  or  political  institutions  of  a  state. 
That  a  contract  to  procure  or  endeavor  to  procure  the  passage  of  an 
act  of  the  legislature,  by  any  sinister  means,  or  even  by  using  per- 
sonal influence  with  the  members,  would  be  void,  as  being  incon- 
sistent with  public  policy  and  the  integrity  of  our  political  institu- 
tions. And  any  agreement  for  a  contingent  fee,  to  be  paid  on  the 
passage  of  a  legislative  act,  would  be  illegal  and  void,  because  it 
w^ould  be  a  strong  incentive  to  the  exercise  of  personal  and  sinister 
influences  to  effect  the  object.  These  are  broad  fundamental  prin- 
ciples, to  the  truth  of  which  we  subscribe,  and  which  cover  the  whole 
ground  on  which  this  case  rests.  It  matters  not  that  nothing  im- 
proper was  done  or  was  expected  to  be  done  by  the  plaintiff.  It  is 
enough  that  such  is  the  tendency  of  the  contract,  that  it  is  contrary  to 
sound  morality  and  public  policy,  leading  necessarily,  in  the  hands  of 
designing  and  corrupt  men,  to  improper  tampering  with  members, 
and  the  use  of  an  extraneous,  secret  influence  over  an  important 
branch  of  the  government.  It  may  not  corrupt  all ;  but  if  it  corrupts 
or  tends  to  corrupt  some,  or  if  it  deceives  or  tends  to  deceive  or  mis- 
lead some,  that  is  sufficient  to  stamp  its  character  with  the  seal  of 
reprobation  before  a  judicial  tribunal. 

Two  cases  have  been  cited,  adverse,  as  is  supposed,  to  this  view  of 
the  case :  The  Vauxhall  Bridge  Co.  v.  Earl  Spencer  (4  Con.  E.  C. 
R.  28),  Jacob  64;  10  lb.  85,  7  Simons  337.  In  the  first,  it  is  ruled 
that  securities  given  to  persons  who  would  be  prejudiced  by  the 
passage  of  a  private  bill  in  parliament,  in  consideration  of  their  with- 
drawing their  opposition  to  it,  are  not  illegal.  In  the  last,  that  an 
agreement  not  to  oppose  a  railway  is  not  illegal.  The  projectors  of  a 
railway,  pending  a  bill  in  parliament  for  incorporating  them,  having 
made  an  agreement  on  behalf  of  the  proposed  corporation,  in  conse- 
quence of  which  a  threatened  opposition  to  the  bill  was  withdrawn, 
it  was  held  that  the  corporation,  having  received  the  benefit  of  the 
agreement,  was  bound  by  it.  The  last  case  was  ruled  on  the  author- 
ity of  the  first ;  and  if  it  was  the  case  of  a  secret  agreement,  withheld 
from  the  knowledge  of  the  committee  to  whom  the  subject  was  com- 
mitted. I  cannot  say  that  I  am  altogether  satisfied  with  the  decision. 
Nor  do  I  see  much  force  in  the  observation,  that  because  only  one 
member  may  have  been  dissatisfied  with  the  bill,  non  constat  it  would 
have  had  any  influence  on  the  house.  But,  be  this  as  it  may,  it  is 
put  upon  special  grounds,  that  it  was  merely  an  agreement  to  com- 
pensate the  opposing  party  for  what  it  was  apprehended  they  might 
lose  by  the  passage  of  the  act ;  and  if  it  were  a  private  affair  merely, 


API-  i;   ILLEGAL    PURPOSE. 

ch  the  p  no  interest,  it  rais^ht  be  well  enougfh.    Rtii- 

'-^  -^'-  ,  ,  .<  ..  seems,  on  a  practice  which  obtains  in  parlia- 

^  such  bills  when  the  parties  can  agree  about  them. 

seems  to  have  thought  that  it  was  a  matter  in  which 

lO  interest,  that  it  was  neither  against  sound  morality 

if  he  is  right  in  these  positions,  his  conclu- 

i.     But  in  this  radical  distirjc^inn  consists  the 

ice  of  the  cases. 

des,it  would  be  unsafe  to  rely  on  a  precede]^  from  such 

'-',  when  we  reflect  upon  the  dift'eren  t  manner  :cting  such 

ss  in  the  respective  countries.    The  contrast  ;-     i   ^  cd  striking. 

•land,  a  private  act  of  parliament  is  in  the  nature  of  a  common 

■:^ce,  and  the  passage  of  such  an  act  is  conducttd  in  some  meas- 

rh  the  forms  and  circumspection  of  a  judicial  proceeding.    In 

ite  it  is  notoriously  otherwise.     In  both  houses,  in  England, 

re  carried  on  with  great  deliberation  and  caution,  particularly 

house  of  lords ;  they  are  usually  referred  to  two  judges,  to 

:e  and  report  the  facts  alleged,  and  to  settle  all  technical  forms. 

ig  is  done  without  the  consent,  expressly  given,  of  all  parties 

g,  and  capable  of  consent,  that  have  the  remotest  interest  in 

tter,  unless  such  consent  shall  appear  to  be  perversely,  and 

;t  reason,  withheld.    An  equivalent  in  money,  or  other  estate, 

;;lly  settled  upon  infants,  or  persons  not  iJi  cssej  or  not  of  capac- 

ict  for  themselves,  who  are  to  be  concluded  by  the  act.    And  a. 

i\  saving  is  constantly  added,  at  the  close  of  the  bill,  of  the 

nd  interest  of  all  persons  whatsoever,  except  those  whose  con- 

-  so  given  and  purchased,  and  who  are  therein  particularly 

.,    And  yet,  notwithstanding  all  the  precautions  used,  alarm. 

>m  felt  at  the  frequency  of  acts  of  parliament  of  a  priv 

.'St  the  good  old  rules  which  are  the  best  securitv  fnr  r: 

1  be  shaken  ;  and  wishes  have  been  expressed  f ;  >i- 

T,  that  men  might  nol  l'-^^^  <-'-"-^  -i^n.-v,  >■■...:  ,n  .   ^.,  _  j^e 

iients  which  they  ma;,  easily  un- 

.  when  they  are  dead,  uy  i  k  j- wti  'i; 

■  'ere  is  reason  to  fear  this  in  EnelaiK'  nore  so  in 

where  but  little  pr-  not  unfre- 

ich  acts  are  passed  \\ .:  on  the  pri- 

-f^ntations  of  persons  who  have  a  <  rest  to  misrep- 

deceive.    And  of  the  danger  to  pr.,,  .       .rising  from  this 
3  case  presents  a  proof ;  for  it  is  certain  that  this  act,  and 
might  be  named,  so  loosely  drawr    — '      ing  so  li"'^ 
he  rights  of  infants,  would  not  ha,  the  par" 

•  r  the  legislature  of  this  state,  if  properly    ■ 
botit  the  assent  or  even  hearing  of  the  t 
1  by  it.    I  say  without  the  hearinp 

\'-   i1->f-    ';t^oiir   of   fh&    narenf    whri 


rest  in  the  success  of 

er,  goes  to  e.-.'-i'.fish  these 

lenied.    Tha-  will 

i legal,  or  the  'don 

and  sound  nv  '  the 

'lucal   institutions     •:    a   state. 

^r  to  procvire  the  pas'^Mgre  of  an 

means,  or  even  ;  ocr- 

ould  be  void,  r\'  ^on- 

:!itc'grity  of  our  'itvi - 

'ntingent  fee,  ic  ,  tl  : 

Ve  illegal  and  vo; 

c'.vcrcise  of  personal  ..tn  i-m^.^.^i 

'lese  are  broad  fundamental  prin- 

Dscribe,  and  which  cover  the  whole 

It  ni?iU^r<:  not  that  nothing  im- 

'  !ie  plaintiff.     It  is 

;  :  ;.  tt  it  is  contrar}'  to 

ieading  r  •  ,  in  the  hands  of 

.    :  i^proppr  ■  ,.  n}.  Tucmbers, 

,'  nportant 

■  rtiay  n( -  '  '"  •'<''' 
:  it  clece; 

o  stamp 

ribunal. 

adverse,  as  is  supposed,  to  this  view  of 

ige  Co.  V.  Earl  Spencer  (4  Con.  E.  C. 

7  Simons  337.  In  the  first,  it  is  ruled 
ons  who  would  he  prejudiced  by  the 

rliament,  in  consideration  of  their  with- 

e  not  illegal.     In  the  last,  that  an 

is  not  illegal.    The  projectors  of  a 

•nt  for  incorporating  them,  having 

;  :he  proposed  corporation,  in  conse- 

■  opposition  to  the  bill  was  withdrawn, 
■•^  having  received  the  benefit  of  the 

■  last  case  was  ruled  on  the  author- 

nse  of  a  secret  agreement,  withheld 

ittc^  to  whom  the  subiect  was  com- 

atisfied  with  the  decision. 

ion,  that  because  only  one 

■ '     'V  bill,  lion  constat  it  would 

'  "T    Ke  this  as  it  may,  it  is 

an  agreement  to  com- 

i  was  apprehended  they  might 

'  were  a  private  affair  merely 


APPOINTMENT    FOR    ILLEGAL   PURPOSE.  65 

in  which  the  pubHc  had  no  interest,  it  might  be  well  enoug-h.  Reli- 
ance was  also  had,  as  it  seems,  on  a  practice  which  obtains  in  parlia- 
ment, of  passing-  such  bills  when  the  parties  can  agree  about  them. 
The  chancellor  seems  to  have  thought  that  it  was  a  matter  in  which 
the  public  had  no  interest,  that  it  was  neither  against  sound  morality 
nor  public  policy.  And  if  he  is  right  in  these  positions,  his  conclu- 
sions cannot  be  gainsaid.  But  in  this  radical  distinction  consists  the 
difference  of  the  cases. 

Besides,  it  would  be  unsafe  to  rely  on  a  precedent  coming  from  such 
a  source,  when  we  reflect  upon  the  different  manner  of  conducting  such 
business  in  the  respective  countries.  The  contrast  is  indeed  striking. 
In  England,  a  private  act  of  parliament  is  in  the  nature  of  a  common 
assurance,  and  the  passage  of  such  an  act  is  conducted  in  some  meas- 
ure with  the  forms  and  circumspection  of  a  judicial  proceeding.  In 
this  state  it  is  notoriously  otherwise.  In  both  houses,  in  England, 
they  are  carried  on  with  great  deliberation  and  caution,  particularly 
in  the  house  of  lords;  they  are  usually  referred  to  two  judges,  to 
examine  and  report  the  facts  alleged,  and  to  settle  all  technical  forms. 
Nothing  is  done  without  the  consent,  expressly  given,  of  all  parties 
in  being,  and  capable  of  consent,  that  have  the  remotest  interest  in 
the  matter,  unless  such  consent  shall  appear  to  be  perversely,  and 
without  reason,  withheld.  An  equivalent  in  money,  or  other  estate, 
is  usually  settled  upon  infants,  or  persons  not  in  esse,  or  not  of  capac- 
ity to  act  for  themselves,  who  are  to  be  concluded  by  the  act.  And  a 
general  saving  is  constantly  added,  at  the  close  of  the  bill,  of  the 
right  and  interest  of  all  persons  whatsoever,  except  those  whose  con- 
sent is  so  given  and  purchased,  and  who  are  therein  particularly 
named.  And  yet,  notwithstanding  all  the  precautions  used,  alarm 
has  been  felt  at  the  frequency  of  acts  of  parliament  of  a  private  na- 
ture, lest  the  good  old  rules  which  are  the  best  security  for  property 
should  be  shaken ;  and  wishes  have  been  expressed  from  the  highest 
quarter,  that  men  might  not  have  too  much  reason  to  fear  that  the 
settlements  which  they  make  of  their  estates  shall  be  too  easily  un- 
settled, when  they  are  dead,  by  the  power  of  parliament. 

If  there  is  reason  to  fear  this  in  England,  how  much  more  so  in 
this  state,  where  but  little  precaution  is  used — where,  not  unfre- 
quently,  such  acts  are  passed  with  but  little  examination,  on  the  pri- 
vate representations  of  persons  who  have  a  direct  interest  to  misrep- 
resent and  deceive.  And  of  the  danger  to  property  arising  from  this 
source,  this  case  presents  a  proof ;  for  it  is  certain  that  this  act,  and 
others  that  might  be  named,  so  loosely  drawn,  containing  so  little  se- 
curity for  the  rights  of  infants,  would  not  have  passed  the  parliament 
of  England,  nor  the  legislature  of  this  state,  if  properly  conned  and 
scrutinized,  without  the  assent  or  even  hearing  of  the  parties  prin- 
cipally to  be  affected  by  it.  I  say  without  the  hearing  of  the  infants, 
for  I  count  but  little  the  assent  of  the  parent  who  had  an  interest 
5 — Reinh.\rd  Cases. 


66  SUBJECT-MATTER. 

adverse  to  them.  It  is  remarkable,  too,  that  the  bill  passed  without 
any  saving  clause,  which,  although  not  absolutely  necessary,  yet 
would  have  shown  some  regard  to  the  rights  of  persons  who  were 
not  in  a  capacity  to  protect  themselves. 

Judgment  reversed,  and  judgment  for  defendant.^ 


ELKHART  COUNTY  LODGE  v.  CRARY. 

1884.     Supreme  Court  of  Indiana.     98  Ind.  238. 

Elliott,  C.  J. — The  material  facts  of  this  case  are  these :  In 
October,  1878,  the  post-office  in  Goshen  was  kept  in  a  room  not  af- 
fording suitable  accommodations  for  the  public,  and  there  was  a 
necessity  for  its  removal.  The  postmaster  was  required  by  the  gov- 
ernment to  furnish  a  room  for  the  office  and  the  rent  was  payable  out 
of  his  salary.  The  value  of  adjacent  property  was  enhanced  by  the 
location  of  the  post-office  and  its  rental  value  increased.  The  citizens 
of  Goshen  requested  that  the  location  of  the  office  should  be  changed, 
and  thereupon  a  competition  arose  between  property  owners  of  two 
localities,  and  property  owners  on  Main  street  made  a  proposition  to 
the  department  that  they  would  furnish  a  suitable  building  for  the 
office,  and  this  proposition  was  made  known  to  the  appellants  who 
were  property  owners  on  Market  street,  and  were  desirous  of  having 
the  post-office  located  on  that  street.  The  appellants  were  the  owners 
of  a  brick  building  on  Market  street,  in  course  of  erection,  which  was 
suitably  located  for  the  post-office ;  the  appellee  was  the  owner  of 
real  estate  in  the  vicinity  of  appellants'  building  and  was  desirous  of 
having  the  post-office  located  near  his  property.  The  appellants  pro- 
posed to  the  appellee  and  other  property  owners,  that  they  would  fit 
up  a  room  in  their  building  with  all  suitable  conveniences  and  equip- 
ments for  a  post-office  and  tender  it  to  the  government,  rent  free  or 
for  a  nominal  rent  for  ten  years,  on  condition  that  the  post-office 
should  be  maintained  in  the  room  for  that  period.  A  verbal  prelimi- 
nary agreement  was  made,  wherein  the  property  owners  agreed  that 
they  would  each  pay  to  the  appellants  a  certain  sum  yearly  for  ten 
years,  provided  the  appellants  would  propose  to  the  government  to 

"^  Accord:    Mills  v.  Mills,  40  N.  Y.  543. 

"The  principal  question  here  presented  is,  was  the  contract  entered  into  be- 
tween the  plaintiff  and  defendant  void,  as  against  public  policy?  _  And  that 
turns  on  whether  it  embraces,  by  its  terms  or  by  necessary  implication,  an 
agreement  to  do  an  illegal  act  or  to  resort  to  secret  or  improper  tampering 
with  official  action,  either  legislative  or  otherwise,  to  effect  the  purposes  of 
the  agreement,  or  that  such  was  its  tendency.  If,  by  its  terms,  or  by  necessary 
implication,  the  agreement  stipulated  for  corrupt  action  or  personal  solicita- 
tion in  the  nature  of  lobbying,  or  tended  directly  to  such  results,  it  is  void." 
Marshall,  J.,  in  Houlton  v.  Nichol,  93  Wis.  393,  396. 


APPOINTMENT  FOR  ILLEGAL  PURPOSE.  6y 

yield  their  room  for  a  post-office  at  a  nominal  rent  for  ten  years,  and 
that  "they  would  use  all  proper  persuasion  to  secure  the  location  of 
the  post-office  in  their  room."  The  notes  in  suit  were  executed  pur- 
suant to  tl  ■  lent,  and  for  the  consideration  th:  cified. 
One  of  the  .  n  was  a  personal  friend  of  tlie  post-  npral, 
and  represeateu  to  that  officer  that  the  location  was  a  Sl 
and  urged  upon  him  the  propriety  of  placing  the  otf  :r  -" 
building.  The  representation  that  the  location  wa  le  one  was 
true.  The  proposition  m.ade  by  the  appellants  w.-.  .  ,.;ed  by  the 
government  and  the  nominal  rent  of  $12  per  annum  was  agreed  upon, 

arj'i  lie  room  leased  for  a  pc^ '         '  .  -  .  .t 

^  ■  material  deduction  c  ^t 

•.;,c   1.  irties  formed  a  comb.  u  tiiC  ;,■  e 

1". ;f:.i>a  of  a  public  office,  a.;  c  of  the  _  i- 

dertook  that  certain  individuals  01  their  number  nr  in- 

fliie?'ce  with  the  government  officers  to  effect  the  ju  . .  -  m- 

' :  \  -■  n,  and  that  the  agreement  to  pay  for  such  services  was  ; 
gwu  upon  the  success  of  the  scheme. 

It  has  Icng  been  established  that  a  contract  against  public  policy 

■■  enforced.     This  principle  is  firmly  fixed  and  has  often 

d  to  contracts.     There  can,  therefore,  be  no  doubt  as  to 

isrence  of  the  rule;  the  only  question  is  as  to  its  applicability 

i'acts  of  this  case. 

e  the  general  public  has  an  interest  in  the  location  of  an  office, 

a  icuoad  station,  or  the  like,  a  contract  to  secure  its  location  at  a 

particular  place  is  held  to  be  against  public  policy  and  not  enforce- 

r  m'  e  arc  very  nr.  -  holding  that  an  r  a  to  locate 

M  '-•Ration  at  a  d  place  is  not  c  ;e  because 

.,  '  olicy.    St.  Louis,  etc.,  R.  R.  Co.  v.  iviatiiers,  104  111. 

:-,  n  v.  Chicago,  etc.,  R.  R.  Co.,  53  Towa  126;  s.  c,  36 

Am.  R.  200,  tHde  authorities  n.  214.    The  principle  upon  which  these 

cn?o^-  t!'  -. •    s  that  the  public  good,  and  not  private  interest,  should 

cation  of  railroad  depots,  and  this  principle  certainly 
■1  force  to  an  office  of  a  purely  public  ■  '  .  such 

We  find  in  these  railroad  cases,  and  ,  very 

ciii,  a  principle  whic  s  a  rule  govcniia^  such  a 

present.     It  is  true  e  is  some  diflFerence  in  the 

;■  courts  upon  the  question  whether  an  agreement  for  the 
■  -'cpotis  valid  when  it  does  not  restrict  the  location  to 
1.  and  no  other ;  but  upon  the  general  principle  there 
.y.    In  the  present  case  the  rlifference  in  the  o:' 
ap  unimportant  cnnsiHer^qtirm,  -for  here  the  l 
c  and  no  '  d  of  ten 

'.'  "vithin  ~  rn?c^  v 

able  tl 
place,  ; . 
one  post-ri 


■  ^  I ^d  without 

ilutely  necessary,  yet 


iciiinuaut.-" 
JDGE  v.  CRAK.V 

.  N'DIANA.      98 

'3  of  this  case  .'1  ; 

ion  was  kept  in  ;■  >i  af- 

X   the  public,  and  as  a 

stmaster  was  required  by  the  gov- 
=  office  and  the  rent  w^    '  '■    ■'  '•    '"^ 
:ent  property  was  en: 
^ntal  value  increased,     liieci 
h"on  of  the  o^co  should  he  cha^  : 

rs  of  two 
■^ sit! on  to 
lid  lun^ 
•AS  mad( 
ket  strt'i 


■0  ;  Uic  f ,  ..to  liic  owjier  ot 

'ants'  bui  ^1  was  desirous  of 

his  property.    The  apj)ellants  pro- 

operty  owners,  that  they  would  fit 

il  suitable  conveniences  and  equip- 

^'  '  )  the  g'overnment.  rent  free  or 

,  condition  that  the  post-office 

i,;i- that  period.    Ax    '    '        ".■■■- 

'■■f  the  property  owne; 

^  a  certain  sum  ycariv  for  ten 
roposc  to  the  q-overnment  to 


,  was  the  1  into  be- 

against  \nd  that 

:i  or  by  1 

:  to  seen:  : 
iierwise, 
If,  by 


APPOINTMENT   FOR   ILLEGAL   PURPOSE.  6/ 

yield  their  room  for  a  post-ojfifice  at  a  nominal  rent  for  ten  years,  and 
that  "they  would  use  all  proper  persuasion  to  secure  the  location  of 
the  post-office  in  their  room."  The  notes  in  suit  were  executed  pur- 
suant to  this  agreement,  and  for  the  consideration  therein  specified. 
One  of  the  appellants  was  a  personal  friend  of  the  postmaster  general, 
and  represented  to  that  officer  that  the  location  was  a  suitable  one, 
and  urged  upon  him  the  propriety  of  placing  the  office  in  appellants' 
building.  The  representation  that  the  location  was  a  suitable  one  was 
true.  The  proposition  made  by  the  appellants  was  accepted  by  the 
government  and  the  nominal  rent  of  $12  per  annum  was  agreed  upon, 
and  the  room  leased  for  a  period  of  ten  years  for  a  post-office. 

The  material  deduction  of  fact  from  these  subsidiary  facts  is  that 
the  parties  formed  a  combination  for  the  purpose  of  securing  the 
location  of  a  public  office,  and  as  part  of  the  plan  the  appellants  un- 
dertook that  certain  individuals  of  their  number  should  use  their  in- 
fluence with  the  government  officers  to  effect  the  purpose  of  the  com- 
bination, and  that  the  agreement  to  pay  for  such  services  was  contin- 
gent upon  the  success  of  the  scheme. 

It  has  long  been  estabhshed  that  a  contract  against  public  policy 
will  not  be  enforced.  This  principle  is  firmly  fixed  and  has  often 
been  applied  to  contracts.  There  can,  therefore,  be  no  doubt  as  to 
the  existence  of  the  rule ;  the  only  question  is  as  to  its  applicability 
to  the  facts  of  this  case. 

Where  the  general  public  has  an  interest  in  the  location  of  an  office, 
a  railroad  station,  or  the  like,  a  contract  to  secure  its  location  at  a 
particular  place  is  held  to  be  against  public  policy  and  not  enforce- 
able. There  are  very  many  cases  holding  that  an  agreement  to  locate 
a  railroad  station  at  a  designated  place  is  not  enforceable  because 
against  public  policy.  St.  Louis,  etc.,  R.  R.  Co.  v.  Mathers,  104  111. 
257;  Williamson  v.  Chicago,  etc.,  R.  R.  Co.,  53  Iowa  126;  s.  c,  36 
Am.  R.  206,  vide  authorities  n.  214.  The  principle  upon  which  these 
cases  proceed  is  that  the  public  good,  and  not  private  interest,  should 
control  in  the  location  of  railroad  depots,  and  this  principle  certainly 
applies  with  full  force  to  an  office  of  a  purely  public  character,  such 
as  a  post-office.  We  find  in  these  railroad  cases,  and  there  are  very 
many  of  them,  a  principle  which  supplies  a  rule  governing  such  a 
case  as  the  present.  It  is  true  that  there  is  some  difference  in  the 
views  of  the  courts  upon  the  question  whether  an  agreement  for  the 
location  of  a  depot  is  valid  when  it  does  not  restrict  the  location  to 
the  place  named,  and  no  other ;  but  upon  the  general  principle  there 
is  entire  harmony.  In  the  present  case  the  difference  in  the  opinions 
of  the  courts  is  an  unimportant  consideration,  for  here  the  location 
is  restricted  to  one  place  and  no  other,  for  a  period  of  ten  years,  and 
the  case,  therefore,  falls  within  the  holding  of  the  cases  most  favor- 
able to  the  appellants.  We  say  that  the  location  is  restricted  to  one 
place,  for  the  reason  that  it  is  matter  of  judicial  knowledge  that  but 
one  post-office  can  be  located  in  the  citv  of  Goshen.    While  the  cases 


68  SUBJECT-MATTER. 

of  which  we  have  spoken  estabhsh  a  principle  which  rules  this  case, 
there  are  others  which,  in  their  general  features,  more  nearly  resem- 
ble the  one  at  bar.  Closely  analogous  in  principle  are  those  cases 
which  hold  that  contracts  which  may  tend  to  the  injury  of  the  public 
service  are  void.  Card  v.  Hope,  2  B.  &  C.  661 ;  Wells  v.  Foster,  8  M. 
&  W.  149 ;  Blachford  v.  Preston,  8  T.  R.  89 ;  Tool  Co.  v.  Norris,  2 
Wall.  45  ;  Ashburner  v.  Parrish,  81  Pa.  St.  52. 

There  are  many  phases  of  injury  to  the  public  service,  and  we  do 
not  deem  it  necessary  to  examine  the  cases  upon  the  subject,  for  we 
think  it  quite  clear  that  a  contract  which  is  made  for  the  purpose  of 
securing  the  location  of  an  important  office  connected  with  the  public 
service  for  individual  benefit,  rather  than  for  the  public  good,  tends 
to  the  injury  of  the  public  service.  The  case  made  by  the  evidence 
falls  fully  within  the  principle  that  contracts  which  tend  to  improp- 
erly influence  those  engaged  in  the  public  service,  or  which  tend  to 
subordinate  the  public  welfare  to  individual  gain,  are  not  enforce- 
able in  any  court  of  justice.  Pollock  Prin.  of  Cont.  279 ;  Anson  Cont. 
175  ;  I  Whart  Cont.,  sections  402  to  414,  inclusive.  A  wholesome 
rule  of  law  is  that  parties  should  not  be  permitted  to  make  contracts 
which  are  likely  to  set  private  interests  in  opposition  to  public  duty 
or  to  the  public  welfare.  This  rule  is  recognized  in  our  own  case  of 
Maguire  v.  Smock,  42  Ind.  i  (13  Am.  R.  353),  where  it  was  held 
that  an  agreement  to  pay  a  consideration  to  a  property  owner  for 
signing  a  petition  to  secure  the  improvement  of  a  street  was  void, 
although  there  was  no  fraud,  and  although  the  person  to  whom  the 
promise  was  made  was  really  in  favor  of  the  improvement. 

It  is  not  necessary  that  actual  fraud  should  be  shown,  for  a  con- 
tract which  tends  to  the  injury  of  the  public  service  is  void,  although 
the  parties  entered  into  it  honestly  and  proceeded  under  it  in  good 
faith.  The  courts  do  not  inquire  into  the  motives  of  the  parties  in 
the  particular  case  to  ascertain  whether  they  were  corrupt  or  not, 
but  stop  when  it  is  ascertained  that  the  contract  is  one  which  is  op- 
posed to  public  policy.  Nor  is  it,  necessary  to  show  that  any  evil 
was  in  fact  done  by  or  through  the  contract.  The  purpose  of  the 
rule  is  to  prevent  persons  from  assuming  a  position  where  selfish 
motives  may  impel  them  to  sacrifice  the  public  good  to  private  bene- 
fit. An  English  author  says :  "But  an  agreement  which  has  an  ap- 
parent tendency  that  way,  though  an  intention  to  use  unlawful  means 
be  not  admitted,  or  even  be  nominally  disclaimed,  will  equally  be 
held  void."  Pollock's  Principles  of  Contracts,  286.  In  the  case  of 
Tool  Co.  V.  Norris,  supra,  the  court  said :  "All  agreements  for  pe- 
cuniary considerations  to  control  the  business  operations  of  the  gov- 
ernment, or  the  regular  administration  of  justice,  or  the  appoint- 
ments to  public  offices,  or  the  ordinary  course  of  legislation,  are  void 
as  against  public  policy,  without  reference  to  the  question,  whether 
improper  means  are  contemplated  or  used  in  their  execution.  The 
law  looks  tO'  the  general  tendencv  of  such  agreements ;  and  it  closes 


•-in:r  th'o.m  recoo tiitiriu  in  anv  of  the 


itiade  to  the  public  throujih 
the  cor.; 
■c  to  aii 

here,  too,  v 

therefore,  i 
.ought  to  bear  u\ 
'■    ";ood. 

Pierce 


•iJohc  oi. 

....  in  the  c   . 

t  tlie  opinion  th^ 


; (tract,  that  ic  is  coiTtr-r-- 
■(  necessarily,  in  ttic 
•ler  tampering  with  ;.;.  . 
iniluence  over  an  import,' 
■^    between  the  two  cla^ 
:ry,  24  ]\Iiss.  o.  whc; 
;olice,  a- 
which 


.1  me  p  > 

n,  52  In..   .„,.  „:id 

L  from  the  decision 

1-  approvin' ■       - ' '-"'  ■ 

one  or  was 


id  corrupt  1 
,...     .  .  of  an  extra. -- 
1  of  the  government."   Tb. 

,.,    .:      .1,,..:.       ,.,,,.1  :„  Q^j. 

of  the 

be 

•■.:t 


been  enforc> 


ngfe  the  site  of  tlie 


.ii.  441  ; 
-  5  Wi. 
services 

■  ,.,^\   el^M- 
ich  mon 


n  the  '■ 


;d. 

Am.  ed.) 

I  this  case 

e,  and  tl;' 


lu'  I  a.- 1 
atfacts 


.     r  ;t.;ii'.  '. 

irnaroT)- 


.ike  contracts 

^^<^blic  duty 

i  case  of 


'  i'.iiicr 

;i.   H!   ■ 

of  the 

part' 

sliuw 

Th 0   ' . : 

'.  (.    ;  iv 

1 1': 

s  an 

ap 

the  busii 


void 


APPOINTMENT    FOR    ILLEGAL    PURPOSE.  69 

the  door  to  temptation,  by  refusing  them  recognition  in  any  of  the 
courts  of  the  country." 

The  case  in  hand  is  plainly  distinguishable  from  those  in  which  a 
promise  is  made  to  the  public  through  its  representatives.  Here  the 
motive  of  the  contracting  parties  was  to  secure  the  location  of  a 
public  office  to  advance  their  private  interests,  and  not  to  benefit 
the  public,  and  here,  too,  there  was  competition  between  two  locali- 
ties. The  case,  therefore,  is  one  in  which  there  should  have  been  no 
influence  brought  to  bear  upon  the  decision  of  the  contest  except  that 
of  the  public  good. 

The  cases  of  Pierce  v.  Ruley,  5  Ind.  69 ;  Commissioners  v.  Perry, 
5  Ohio  56;  State  Treasurer  v.  Cross,  9  Vt.  289,  hold  that  a  contract 
with  the  officers  of  the  state  for  the  benefit  of  the  state  is  valid,  but 
they  clearly  distinguish  between  the  cases  where  a  promise  is  made 
to  an  individual  for  his  private  benefit  and  those  in  which  the  prom- 
ise is  made  to  a  public  officer  for  the  benefit  of  the  public.  This 
distinction  is  made  in  the  case  of  State  v.  Johnson,  52  Ind.  197,  and 
in  the  course  of  the  opinion  the  following  extract  from  the  decision 
in  Clippinger  v.  Hepbangh,  5  Watts  &  S.  315,  is  approvingly  quoted: 
"It  matters  not  that  nothing  improper  was  done  or  was  expected  to 
be  done  by  the  plaintiff.  It  is  enough  that  such  is  the  tendency  of 
the  contract,  that  it  is  contrary  to  sound  morality  and  public  policy, 
leading  necessarily,  in  the  hands  of  designing  and  corrupt  men,  to 
improper  tampering  with  members,  and  the  use  of  an  extraneous, 
secret  influence  over  an  important  branch  of  the  government."  The 
difference  between  the  two  classes  of  cases  is  clearly  stated  in  Odi- 
neal  v.  Barry,  24  Miss.  9,  where  it  was  said :  "The  members  of  the 
board  of  police,  as  individuals,  will  not  receive  any  portion  of  the 
money  for  which  the  note  v/as  given.  At  the  time  of  the  contract 
it  was  not  intended  or  expected  that  they  should  receive  it.  It  was 
not  a  proposition  by  the  defendants  to  pay  them  so  much  as  indi- 
viduals, in  consideration  that  they  would  not  change  the  site  of  the 
court-house.  If  it  had  been,  it  would  have  been  clearly  illegal,  and 
could  not  have  been  enforced." 

It  is  true  that  a  contract  to  pay  for  professional  services  in  fairly 
placing  the  facts  of  a  case  before  the  officers  of  government  is  valid. 
Trist  V.  Child,  21  Wall.  441:  Smith  Leading  Cases  (7  Am.  ed.) 
692 ;  Bryan  v.  Reynolds,  5  Wis.  200.  But  the  contract  in  this  case 
is  not  for  professional  services  but  for  personal  influence,  and  this 
constitutes  an  essential  element,  for  personal  influence  is  not  a 
commodity  for  which  money  can  be  demanded.  The  case  of  Os- 
canyan  v.  Arms  Co.,  103  U.  S.  261,  cited  by  appellants,  is  directly 
against  them  upon  this  point.  In  the  course  of  the  opinion  in  that 
case  it  was  said :  "But,  independently  of  the  official  relation  of  the 
plaintiff  to  his  government,  the  personal  influence  which  he  stipu- 
lated to  exert  upon  another  officer  of  that  government  was  not  the 
subject  of  bargain  and  sale.    Personal  influence  to  be  exercised  over 


yo  SUBJECT-MATTER. 

an  officer  of  government  in  the  procurement  of  contracts,  *  *  * 
is  not  a  vendible  article  in  our  system  of  laws  and  morals,  and  the 
courts  of  the  United  States  will  not  lend  their  aid  to  the  vendor  to 
collect  the  price  of  the  article.  Numerous  adjudications  to  this  effect 
are  found  in  the  state  and  federal  courts.  This  is  true  when  the 
vendor  holds  no  official  relations  with  the  government,  though  the 
turpitude  of  the  transaction  becomes  more  glaring  when  he  is  also 
its  officer."  In  Trist  v.  Child,  supra,  the  court,  in  speaking  of  pro- 
fessional services,  said :  "But  such  services  are  separated  by  a  broad 
line  of  demarcation  from  personal  solicitation." 

While  contracts  for  the  payment  of  fixed  fees  for  professional 
services  are  valid,  yet,  when  the  fees  are  made  contingent  upon  suc- 
cess in  obtaining  the  desired  legislation,  the  contract  sought,  or  the 
office  asked  of  the  government,  the  contract  becomes  so  tainted  with 
illegality  as  to  render  it  void.  "High  contingent  compensation,"  said 
Justice  Grier,  "must  necessarily  lead  to  the  use  of  improper  means 
and  the  exercise  of  undue  influence,"  and  the  decisions  give  approval 
to  his  discussion  of  the  question  of  the  legality  of  such  contracts,  and 
concur  in  the  conclusion  that  all  such  contracts  are  against  sound 
public  policy.  Marshall  v.  Baltimore,  etc.,  R.  R.  Co.,  i6  How.  314; 
Meguire  v.  Corwine,  loi  U.  S.  108 ;  Oscanyan  v.  Arms  Co.,  supra, 
see  opinion,  page  274 ;  Clippinger  v.  Hepbaugh,  supra;  Wood  v. 
McCann,  6  Dana  (Ky.)  366;  Mills  v.  Mills,  40  N.  Y.  543 ;  Ormerod 
V.  Deannan,  100  Pa.  St.  561  ;  s.  c.  45  Am.  R.  391. 

The  contract  before  us  has  two  infirmities,  one  of  an  agreement 
for  the  use  of  personal  influence,  and  another  of  an  agreement  for 
compensation  dependent  upon  the  contingency  of  success.  That  we 
are  correct  in  saying  that  the  agreement  is  dependent  upon  a  con- 
tingency is  shown  by  the  fact  that  the  consideration  became  payable 
only  in  the  event  that  the  post-office  was  located  and  maintained  in 
appellant's  building. 

Doubtless,  a  contract  to  assist  a  property  owner  in  fitting  up  or 
purchasing  a  building  to  be  given  to  the  government  for  public  use 
would  be  valid,  but  in  the  present  instance  this  was  not  the  char- 
acter of  the  consideration  of  the  notes  in  suit,  although  such  an  ele- 
ment may  have  formed  part  of  the  consideration.  The  considera- 
tion of  the  notes  is  indivisible,  and  the  illegal  cannot  be  separated 
from  the  legal,  and,  under  the  familiar  rule,  that  where  the  consider- 
ation is  in  part  illegal,  and  there  can  be  no  separation,  the  whole 
contract  is  void.  The  contract  before  us  must  be  held  invalid  because 
of  the  illegality  of  the  consideration.  Judgment  affirmed.^ 

*  See  Robertson  v.  Robinson,  65  Ala.  610. 

See  Barnard  v.  Backhaus,  52  Wis.  593,  as  to  the  validity  of  an  appointment 
to  make  gambling  contracts. 

In  Roby  v.  West,  4  N.  H.  285,  it  was  held  that  a  contract  of  employment  to 
sell  lottery  tickets  was  void.  A  statute  in  force  at  the  time  made>  lotteries 
illegal. 


l.LG\L   PURPOSE. 

1838.     bupREME  Court  of  Pen 

:<  to  the  common  pleas  of  Berks  county. 
^...-.  was  an  action  of  assumpsit  by  Daniel  Gulc...    ..  .  ;;3t  Adolph 

Hatzfield,  .to  recover  from  the  defendant  the  sum  of  one  thousand 
dollars  as  a  compensation  to  the  plaintiff  for  procuring  a  pardon  for 
the  defendant,  Avho  had  been  convicted  of  murder  in  the  second  de- 
i.--  ■    :'.od  sentenced. 

court  below  was  of  opinion  that  the  '  Dt  forbid 

by  the  plaintiff,  if  the  juty  believed  h(  >:rwise  entiiled 

r    :  .C'jver. 

Hi'STON,  J. — D.  G.  Gulden  was  plaintifif  below,  an  t  case 

lii  assumpsit  against  Hatzfield.    The  declaration  con^i.-i.  ^'""ee 

counts.    The  first  set  out  that  Hatzfield  had  been  indie  e 

-f  oyer  and  terrriiner  of  Berks  county,  and  tried,  and  a  vji'iict 
y,  and  sentenced  to  confinement  for  twelve  years.   This  was 
out  at  large  and  sentence  in  full,  and  the  dates.    And  that 
ri  w'  1  .'uance  of  the  said  sentence,  the  said  Hatzfield  was  in  confine- 
ment in  the  Eastern  penitentiary  in  the  county  of  Philadelphia,  and 

on  the day  of at  said  penitentiary,  in  consideration 

that  the  plaintiff,  at  the  special  instance  and  request  of  said  de- 

*"  •   l.'at.  had  then  and  there  agreed  with  and  undertaken,  and  faith- 

viromised  the   said   defendant,  to  use  all  fair  and  honorable 

lis   to  obtain   from  the  governor   of   the   cor  Hh   of 

Ivania  a  pardon  for  the  said  defendant,  being  there 

'  ned  in  pursuance  of  such  sentence,  etc.    He,  the  said  de- 

■    jt,  then  and  there  agreed  with,  and  faithfully  promised  to  the 

'aintift'  to  pay  the  said  plaintiff  the  sum  of  one  thousand  dol- 

a  remuneration  for  his  services  and  loss  of  time,  in  using  his 

us  to  obtain  from  the  said  governor  of  Pennsylvania  a  pardon, 

.nd  the  plaintiff  avers  that  afterwards,  to  wit,  at,  etc.,  the 

('!    ;      f  did  use  all  fair  and  honorable  exertion?  to  obtain,  etc.,  and 

'  -    reason  thereof  the  defendant  becan  •  cd  to  pay  the 

n  of  one  thousand  dollars  so  by  him  '.  yet  although 

sted,  etc. 

ud  count  states  that  the  defendant  ,^a.-.  u  Jebted  to  plain- 
one  thousand  dollars  for  services  performed  in  obtaining 
nor  of  Pennsylvania  a  pardon  for,  etc.,  and  being  so 
ed   etc. 

•t  was  i; 
\'id  O'.it 
Time  or  pardon 


iciirement  of  mntrac 

rhe 

L  .  -  -1           .  '  J 

r  to 

bi  adjudications  to  this  eft'ect 

i.i 

rts.    This  i?  *'- 

-    -  '    ••  the 

the  govern  r 

the 

c3  more  glaiing 

,!so 

r-n.  tb 

p  court,  in 

.iO- 

are  sep:. 

m  " 

uad 

:  payment  ot 

tixed  fees 

c^ssional 

^  ^'le  fees- are 

.  made  conL.i>.v 

.     i.^on  suc- 

gislation, 

the  contract  sought,  or  the 

the  contract  becomes  so 

---•-'  with 

'High  coniingent  compel 

aid 

•  mS 

.  )val 

V  question  of  the  ' 

.:h  c 

Dntracts,  and 

ion  that  all  '=ii<"' 

■■'inst  sound 

1.       3II  V,  Baltimo 

w.  314; 

—  '  U.  S.  106, 

-■pra. 

lippinger  v 

I    V. 

06;  Mills  V. 

■rod 

61 ;  s.  c.  45  ,-. 

has  two  ini; 

■.Tit 

.  : nfluence,  an'! 

;    iur 

dependent  upon  the  cor 

>s.    That  we 

.,,.;„,,  v>^,of  the  agreem*. 

...    ..-  -.^.i,..  ,...,,. 

upon  a  con- 

tact  that  the  consideration  became  payable 
t-office  was  located  and  maintained  in 

ist  a  property  owner  in  '  n  or 

ven  to  the  government  i  use 

esent  instance  this  was  nor.  the  char- 
ie  notes  in  suit,  although  such  an  ele- 
of  the  consideration.    The  considera- 
.nd  the  illegal  cannot  be  separated 
,:Iiar  rule,  that  where  the  consider- 
can  be  no  - 
•re  us  must  b 
>n.  Judgment  af. 

-iintment 
i  that  ac'-  '  nt  to 


APPOINTMENT    FOR    ILLEGAL    PURPOSE.  7I 

HATZFIELD  v.  GULDEN. 
1838.     Supreme  Court  of  Pennsylvania.     7  Watts  152. 

Error  to  the  common  pleas  of  Berks  county. 

This  was  an  action  of  assumpsit  by  Daniel  Gulden  against  Adolph 
Hatzfield,  to  recover  from  the  defendant  the  sum  of  one  thousand 
dollars  as  a  compensation  to  the  plaintiff  for  procuring  a  pardon  for 
the  defendant,  who  had  been  convicted  of  murder  in  the  second  de- 
gree, and  sentenced. 

The  court  below  was  of  opinion  that  the  law  did  not  forbid  a  re- 
covery by  the  plaintiff,  if  the  jury  believed  he  was  otherwise  entitled 
to  recover. 

Huston,  J. — D.  G.  Gulden  was  plaintiff  below,  and  brought  case 
in  assumpsit  against  Hatzfield.  The  declaration  consisted  of  three 
counts.  The  first  set  out  that  Hatzfield  had  been  indicted  in  the 
court  of  oyer  and  terminer  of  Berks  county,  and  tried,  and  a  verdict 
of  guilty,  and  sentenced  to  confinement  for  twelve  years.  This  was 
all  set  out  at  large  and  sentence  in  full,  and  the  dates.  And  that 
in  pursuance  of  the  said  sentence,  the  said  Hatzfield  was  in  confine- 
ment in  the  Eastern  penitentiary  in  the  county  of  Philadelphia,  and 

on  the   day  of at  said  penitentiary,  in  consideration 

that  the  plaintiff,  at  the  special  instance  and  request  of  said  de- 
fendant, had  then  and  there  agreed  with  and  undertaken,  and  faith- 
fully promised  the  said  defendant,  to  use  all  fair  and  honorable 
exertions  to  obtain  from  the  governor  of  the  commonwealth  of 
Pennsylvania  a  pardon  for  the  said  defendant,  being  then  and  there 
imprisoned  in  pursuance  of  such  sentence,  etc.  He,  the  said  de- 
fendant, then  and  there  agreed  with,  and  faithfully  promised  to  the 
said  plaintiff  to  pay  the  said  plaintiff  the  sum  of  one  thousand  dol- 
lars as  a  remuneration  for  his  services  and  loss  of  time,  in  using  his 
exertions  to  obtain  from  the  said  governor  of  Pennsylvania  a  pardon, 
etc. ;  and  the  plaintiff  avers  that  afterwards,  to  wit,  at,  etc.,  the 
plaintiff  did  use  all  fair  and  honorable  exertions  to  obtain,  etc.,  and 
that  by  reason  thereof  the  defendant  became  indebted  to  pay  the 
said  sum  of  one  thousand  dollars  so  by  him  promised,  yet  although 
often  requested,  etc. 

The  second  count  states  that  the  defendant  was  indebted  to  plain- 
tiff in  other  one  thousand  dollars  for  services  performed  in  obtaining 
from  the  governor  of  Pennsylvania  a  pardon  for,  etc.,  and  being  so 
indebted,  promised,  etc. 

The  third  count  charged  that  defendant  was  indebted  to  plaintiff 
in  one  thousand  dollars,  for  money  paid,  laid  out,  and  expended,  etc., 
not  mentioning  the  crime  or  pardon. 

Afterwards  another  count  by  leave  of  the  court  was  filed,  setting 
out  at  large  the  indictment,  trial,  conviction  and  judgment  as  in  the 
first  count,  and  imprisonment  under  the  sentence  ;  and  that  the  said 


72  SUBJECT-MATTER. 

Adolph  required  the  said  Daniel  to  labor,  and  do  his  endeavor  to 
obtain  his,  the  said  Adolph's  pardon  from,  etc. ;  and  that  after- 
wards did,  b}'  all  the  means  he  could,  and  by  riding  and  journeying 
in  the  county  of  Berks,  and  to  and  from  Harrisburg,  etc.,  use  all  his 
endeavors  to  obtain,  etc. ;  by  reason  of  his  exertions,  riding,  journey- 
ing and  many  days'  labor,  reasonably  deserved  to  have  other  one 
thousand  dollars,  etc.  Plea,  non  assumpsit,  and  issue.  The  proof  in 
the  cause  was  various,  and  not  a  little  of  it.  W.  Lewars,  J.  S.  Hollo- 
way  and  Shoemaker  proved  that  Hatzfield  said  he  would  satisfy 
Gulden ;  one  of  them  that  he  made  his  promise  while  still  in  the 
penitentiary,  and  two  of  them  that  he  said  so  after  he  was  pardoned. 
J.  Baily  proved  that  he  and  a  Air.  Sontag  were  appointed  a  commit- 
tee of  Hatzfield's  property.  That  Gulden  applied  to  them,  offered 
to  go  through  the  county  to  get  signers.  That  they  agreed  to  pay 
him  one  hundred  dollars  in  hand,  and  another  one  hundred  dollars 
if  he  got  him  liberated,  in  September,  1834  ;  paid  the  one  hundred  dol- 
lars ;  also  gave  him  fifteen  dollars  in  August,  1834;  and  also  fifteen 
dollars  in  March,  1835  ;  he  was  to  obtain  above  twelve  hundred 
signers  to  the  petitions ;  but  did  not  get  so  many.  Hatzfield  was  Hb- 
erated  in  April,  1835.  P.  Geiger,  a  member  of  the  legislature  from 
Berks  at  that  time,  proved  Gulden's  exertions ;  witness  went  with 
him  to  the  governor ;  that  he  wished  witness  to  get  signers ;  said 
they  would  pay  so  much  a  head ;  witness  got  signers,  but  said  he  did 
not  want  pay.  Another  witness  proved  that  Gulden  gave  him  fifteen 
dollars  to  pay  Snell,  who  would  not  give  up  his  petitions  and  signers 
till  paid.  Peter  Bright  proved  that  he  got  in  Reading  between  four 
and  five  hundred  signers,  at  the  request  of  Gulden  and  Snell ;  and 
he  was  to  have  three  cents  a  head.  The  above  is  the  substance,  with 
the  addition  that  many  refused  to  sign,  etc. ;  some  proof  of  expenses 
paid  by  Gulden  for  horse  hire  to  the  amount  of  from  ten  to  fifteen 
dollars. 

The  court  told  the  jury:  "There  can  be  no  recovery  on  an  illegal 
contract,  neither  can  there  be  a  recovery  on  contracts  which  are 
prohibited  by  law ;  nor  on  contracts  against  which  penalties  are  en- 
joined ;  nor  a  party  cannot  successfully  come  into  court  and  say, 
'Give  me  a  sum  of  money  which  I  claim,  against  or  in  violation  of 
law.'  This  would  not  be  tolerated  nor  countenanced ;  but  I  am  not 
aware  that  it  is  unlawful  to  obtain  a  pardon  by  lawful  means."  And 
again :  "If  the  defendant  did  employ  the  plaintiff  to  travel  and 
spend  time  in  procuring  signatures  to  petitions,  and  to  go  and  carry 
these  petitions  to  the  governor,  and  promised  to  pay  him  for  his 
time,  labor  and  trouble  in  performing  this  service,  I  think  he  can 
recover  a  reasonable  and  just  compensation  therefor." 

The  first  three  errors  were  in  entering  judgment  for  the  plaintiff: 
because  on  these  pleadings  judgment  should  have  been  entered  for 
the  defendant ;  that  the  court  ought  to  have  told  the  jury  that  on 


/3 


he  same  in  substanct. 
"   t  to  which  the  ^ 
liing'  was  said  al 
.  ,  cdSK:  was  put  on  the 
j;     • :  ;  be  it  so  ;  but  perhaps 
on  illegal  or  immoral 
decency,  or  public  good  ,; 
on  on  the  evidence  of  the 
ujustice  or  general  p    ''  ^ 
;    '     i  \i;  perhaps  there  is 
'lable  by  the  mo^' 
-  used  to  carry  ii 
>y  law,  marriage,  oroi<aj.;i 
.        L  of  trade. 
In  4  T.  R.  466,  we  find  a  - 
;me    "it  that  the  bill  or  bills 
sold  in  Guernsey  to  1 
'.  there  \s  '    rm  ii;  .s 

f  the  tr  whidi  •- 

it  into 
;.'Id  that 


,^1,-l 


l\^»       Cll'^f-' 


first  three  assignments  of 

I,  and  tb  on  it 

■^o'cinrl   '  .  'ions 


an  be  made  {rood 


nations  < 

.!ill  of  exchange;  at  the  r, 
.  -,  + -.  .  •=-,   iU,^  balance  duv.  .. 
•land.   Lord  Ken- 
as  the  intent  and 
1  court  nvip-ht  not 


-  lIuc  <- 
id  brand 

1  could  not  recover  the  price  in  England,  though  he  had 
no  law  of  his  own  country  where  he  madei  the  sale. 
:ase  of  Mitchell  v.  Smith,  in  I  Binn.  no  (2  Am,  Dec.  417), 
■bt  on  a  single  bill  drawn  in  the  usual  form.    The  consi  ' 
'  one  forbidden  by  the  policy  and  laws  of  the  state:  r 
is  paid  to  the  pleadings,  and   no  one  su 
!ve  any  effect  on  the  decision;  and  the  .. 
.ound  that  if  the  transaction  out  of  which  the  c 
m.'I.Ipii  hv  positive  or  gen<''i-.  ■  ';'•>■■    •l"-  ■.•'I.-:i.n  .->  ,;'  ' 
wer  to  pardon 

..  :  .1 ,.-     --here    p..-i  1;  i|.)>    uir.i;     ■  '11     L^.'iit 

iimitted  under  circui.  xtenuat- 

:;)'jral  and  ^  ^  oi  opin- 

.0  have,  wei-  r.    But  if 

leans  are  used  10  obtain  petitioners,  it  may  be  a  great  im- 

I'U  ;be  p'  ■■  ernor. 

Ion  ma  idered  as  a  part  of  the  • 

...,..,.,,  rial  to  be  sure,  '  •  ----"'i 

i)ortant  that  it  - 


MATTER. 


;o  labor,  and  do  his 
ion  from,  etc. ;  and 
lid,  and  by  riding  an 
a  to  and  from  Harrisburg-,  et' 
i)y  reason  of  his  exertions,  rid 
■■-,  reasonably  deserved  ti 
i,  non  assumpsit,  and  issi. 
'  not  a  little  of  it:  W.  Le\. 
ed  that  Hatzfield  said  ':■ 
a  he  madt'  bic  promise 
,em  thai  '  -o  after  ' 

.]  a  Mr,  ,,    \-erc  apr 

Gulden  api 
...  .,,, .   signer-^     'i'ir 
in  hand,  an(' 


nor ;  that  he  wished 
:>  much  a  hen  '  ■  ^'  " 
lother  witnc 


<   t8;U 


endeavor  to 

♦'rer- 
Ing 

•  his 
;ey- 
"»ne 
''  in 


ati 


;,ed. 

mit- 

■red 

l)ay 

'iars 

iir.iM  !•.  ci!  dol- 

d  also  fifteen 

!ve  hundred 

I  eld  was  lib- 

H-Q  from 

:'    with 

^aid 

.>,ui  lit.  did 

•  him  fifteen 


au'l  butii ;  ana 

c.  snijstance,  with 

--ign,  etc. ;  some  proof  of  expenses 


■  c-;i;i  ue  H' -  rocxnciy  nn  :r,i  iiei^ai 
recovery  on  contracts  whicli  are 
gainst  which  penalties  are  en- 
lly  come  into  court  and  say, 
;  claim,  against  or  in  violation  of 
'.  nor  couni  i-i''.ir.iTd  :  1.r.l  I  ;i'n  not 


o  obtain  a  pardc 
•X  did  employ  .tln^  ^  ..u.  ■ 
ignatures  to  petitions,  an- 
)r,  and  promised 
r forming  thi?  «;( 


> .. .   and 

ixl  carry 

-  his 

can 


bec<i 


lent  should  havt- 


fO     t-v,. 


,1.1 


plaintiff : 
'.■red  for 

'Vir,r  iv\ 


APPOINTMENT    FOR    ILLEGAL    PURPOSE.  73 

these  pleadings  and  proof  this  action  could  not  be  sustained ;  and 
the  third  is  the  same  in  substance. 

From  the  point  to  which  the  attention  of  the  counsel  was  called 
by  the  court,  nothing  was  said  about  these  first  three  assignments  of 
error.  The  case  was  put  on  the  last  count,  and  that  a  verdict  on  it 
was  good ;  be  it  so ;  but  perhaps  it  will  be  found  that  in  all  actions 
founded  on  illegal  or  immoral  considerations,  or  on  what  is  con- 
trary to  decency,  or  public  good  or  policy,  the  form  of  the  action  or 
declaration  on  the  evidence  of  the  claim  is  immaterial,  if  the  indi- 
vidual injustice  or  general  good  forbids  such  contract,  or  the  law 
prohibits  it ;  perhaps  there  is  no  case  in  which  it  can  be  made  good 
and  available  by  the  mode  of  evidencing  the  agreement,  or  the  form 
of  action  used  to  carry  it  into  effect.  To  say  nothing  of  gaming  pro- 
hibited by  law,  marriage,  brokage  bonds,  obligations  entered  into  in 
restraint  of  trade. 

In  4  T.  R.  466,  we  find  a  suit  on  a  bill  of  exchange ;  at  the  trial  it 
came  out  that  the  bill  or  bills  were  given  to  pay  the  balance  due  for 
brandy  sold  in  Guernsey  to  be  smuggled  into  England.  Lord  Ken- 
yon  said  there  was  no  harm  in  selling  brandy ;  it  was  the  intent  and 
design  of  the  transaction  which  made  it  such  that  a  court  ought  not 
to  carry  it  into  effect ;  and  so  far  was  this  carried  in  5  T.  R.  592, 
it  was  held  that  a  Frenchman  who  sold  brandy  to  be  smuggled  into 
England  could  not  recover  the  price  in  England,  though  he  had 
violated  no  law  of  his  own  country  where  he  made  the  sale. 

The  case  of  Mitchell  v.  Smith,  in  i  Binn.  no  (2  Am.  Dec.  417), 
was  a  debt  on  a  single  bill  drawn  in  the  usual  form.  The  considera- 
tion was  one  forbidden  by  the  policy  and  laws  of  the  state ;  no  re- 
gard was  paid  to  the  pleadings,  and  no  one  suggested  that  they 
could  have  au)^  effect  on  the  decision ;  and  the  cause  went  on  the 
broad  ground  that  if  the  transaction  out  of  which  the  claim  arose 
was  forbidden  by  positive  or  general  law,  the  claim  could  not  be  re- 
covered. The  power  to  pardon  is  a  constitutional  power ;  to  alle- 
viate or  remit  punishment  where  perhaps  there  is  doubt  of  guilt ; 
or  where  the  offense  was  committed  under  circumstances  extenuat- 
ing the  crime,  etc.  The  general  and  spontaneous  expression  of  opin- 
ion has  had,  and  ought  to  have,  weight  with  the  governor.  But  if 
undue  means  are  used  to  obtain  petitioners,  it  may  be  a  great  im- 
position on  the  governor. 

The  power  to  pardon  may  be  considered  as  a  part  of  the  penal 
code  of  the  state ;  it  operates  after  trial  to  be  sure,  generally,  but 
may  be  exercised  before.  It  is  as  important  that  it  should  be  free 
from  bias,  or  prejudice,  or  crime,  as  that  the  trial  should  be  so.  No 
man  would  say  that  if  it  were  possible  to  procure  a  pardon  by  direct 
payment  to  a  governor,  it  would  be  lawful  to  give  one.  To  bribe 
others  to  deceive  and  impose  on  him,  only  differs  in  degree. 

In  this  case  the  first  offer  came  from  Gulden  to  the  trustees  of 
the  prisoner :  they  paid  in  hand,  before  he  stirred,  one  hundred  dol- 


74 


SUBJECT-MATTER. 


lars ;  and  afterwards,  at  least  twice,  fifteen  dollars ;  through  the 
whole  business,  he  appears  to  be  acting,  not  from  pity,  not  from  a 
sense  that  the  punishment  was  too  severe,  not  from  friendship  to 
the  prisoner,  but  for  his  own  gain  and  emolument.  At  his  last  inter- 
view in  the  cells,  HoUoway  is  called  back  to  witness  a  promise  of 
payment. 

It  is  not  necessary  to  say  whether,  after  the  whole  transaction  is 
closed,  a  person  who  incidentally  paid  some  postage,  or  who,  under 
special  circumstances,  carried  a  petition,  the  signatures  to  which 
were  spontaneously  made,  may  not  receive  his  actual  expense  and 
daily  pay.  I  would  say  it  must  be  a  very  special  case,  however,  to 
justify  this.  But  this  is  not  such  a  case ;  and  we  do  not  wish  to  see 
advertisements,  that  pardons  will  be  obtained  at  the  lowest  price, 
nor  anything  which  approaches  to  it ;  and  generally,  all  contracts  to 
change  the  course  of  trials,  or  the  effects  of  trials,  whether  to  obtain 
a  liberation  of  a  prisoner  by  money  to  the  jailer,  or  to  obtain  a  par- 
don by  the  use  of  money,  directly  or  indirectly,  must  be  void. 

Judgment  reversed.^ 

^  Compare  Chadwick  v.  Knox,  31  N.  H.  226. 

In  Thompson  v.  Wharton,  7  Bush  (Ky.)  563,  it  was  held  that  an  agreement 
to  secure  the  release  of  one  convicted  by  a  court  without  jurisdiction  is  not 
void,  not  being  against  public  policy. 


GREAT : 

Section  1. — Authority  to  Execute  Sealed  Instruments. 

BURNS  A  -v.  LYNDE, 

^      Supreme  Judicial  Court  of  Massachusetts.    6  xMlen  305. 

n  equity  praying-  that  the  defendant  might  be  ordered  to  re- 
o  Mary  Burns,  the  female  plaintiff,  her  interest  in  c 
te.     The  defendant  filed  a  demurrer,  which  was  oven 
:    .    iiie  case  was  heard  by  Merrick,  J.,  who,  after  deciding  that  the 
■ !  Mary  was  entitled  to  the  relief  prayed  for  in  the  bill,  and  that  a 
'     ree  to  that  ejffect  ought  to  be  made,  reserved  it  for  the  final  de- 
;    ..lination  of  the  whole  court.    The  case  is  stated  in  the  opinion. 
•  rtAPMAN,  J.    The  demurrer  having  been  overruled,  and  the  cause 
';     rd  upon  the  evidence,  all  the  matters  in  controversy  are  no\ 
.\-:c  us.  as  well  upon  the  dem'jrrer  as  upon  the  merits  of  the 
The  causes  of  demurrer  ;;-  re  as  follows : 

7.    "That  said  bill  hac'        r:  properly  signed  by  the  plaiiin^- 

]    .        v'ned  by  said  Mary  Burns  alone."    It  is  in  fact  signed  "J 
lis,  by  Mary  Bums,"  and  "Mary  Burns."    No  rule  is  rei 
;>  h  prohibits  him  from  making  her  his  attorney  to  sign  th. 

and  ^\  >  are  net  av\  are  ih:^'  0  rule  or  principle  exists. 

2.    '■  Ti?t  said  \jary  i>  not  set  forth,  nor  has  she  any 

'Orney  to  sign  said  bill  in  behalf  of  Jefferson  Burns."   It 

is  no  allegation  of  a  power  of  attorney,  nor  is  such  alle- 

ary.   The  husband  is  named  as  plaintiff  in  the  bill,  she 

:  .i  on  his  b*^^^''-'  '••"'  '—  '^-■'^'.'--  f.-.  ,..-,  .:..,-^.r,=,  j^-.  ^u^j  ^his  is 

.■:.'■;    -'t. 

'    '       ''  Jeftevirii  i.\;r.'iS  luis  m. ■  ..r  swor 

r  nf  tjie  sip^"?itnrp  is  aire  '-»sed  of. 

hardly  ,  not  he  sworn  to. 

1     T':  ,  to  the  n-crit?  of  th^ 

<:  01  ihen-;  i>eing  that  Mar 
lie  seeks. 
".    But  anoth  .g  which 


dollars;  through  the 

:.ot  from  pity,  not  from  a 

.    . ...  i,  not  from  friendship  to 

and  emolument.  At  his  last  inter- 

i>    '  :  .,  ..I.  .,  witness  a  promise  of 


aiier  the  whole 
:  1  some  postage. 
Tied  a   petition,  the  sis.^ 
may  not  receive  his  a*., 
ist  be  a  very  special 
'  ''  a  case;  and  we  <; 
be  obtained  at 
>  lo  it;  and  general!;,,  . 
the  effects  of  trials,  whether  to  obtain 
y  to  the  jailer,  or  to  obtain  a  par- 
■.>r  indirectlv,  must  be  void. 


men 
and 
-,  to 
.  o  see 
St  price, 
ontracts  to 


.ox,  31  N. 


!?reernent 


CHAPTER  IV. 

CREATION   OF  AGENCY. 

Section  1. — Authority  to  Execute  Sealed  Instruments. 


BURNS  AND  Wife  v.  LYNDE. 
1863.     Supreme  Judicial  Court  of  Massachusetts.     6  Allen  305. 

Bill  in  equity  praying  that  the  defendant  might  be  ordered  to  re- 
convey  to  Mary  Burns,  the  female  plaintiff,  her  interest  in  certain 
real  estate.  The  defendant  filed  a  demurrer,  which  was  overruled; 
and  the  case  was  heard  by  Merrick,  J.,  who,  after  deciding  that  the 
said  Mary  was  entitled  to  the  relief  prayed  for  in  the  bill,  and  that  a 
decree  to  that  effect  ought  to  be  made,  reserved  it  for  the  final  de- 
termination of  the  whole  court.    The  case  is  stated  in  the  opinion. 

Chapman,  J.  The  demurrer  having  been  overruled,  and  the  cause 
heard  upon  the  evidence,  all  the  matters  in  controversy  are  now  be- 
fore us,  as  well  upon  the  demurrer  as  upon  the  merits  of  the  case. 
The  causes  of  demurrer  assigned  are  as  follows : 

1.  "That  said  bill  had  not  been  properly  signed  by  the  plaintiffs, 
but  is  signed  by  said  Mary  Burns  alone."  It  is  in  fact  signed  "Jeffer- 
son Burns,  by  Mary  Bums,"  and  "Mary  Burns."  No  rule  is  referred 
to  which  prohibits  him  from  making  her  his  attorney  to  sign  the  bill, 
and  we  are  not  aware  that  any  such  rule  or  principle  exists. 

2.  "That  said  Mary  Burns  has  not  set  forth,  nor  has  she  any 
power  of  attorney  to  sign  said  bill  in  behalf  of  Jefferson  Burns."  It 
is  true  there  is  no  allegation  of  a  power  of  attorney,  nor  is  such  alle- 
gation necessary.  The  husband  is  named  as  plaintiff  in  the  bill,  she 
has  signed  it  on  his  behalf,  and  he  appears  to  prosecute  it ;  and  this  is 
sufficient. 

3.  "That  said  Jefferson  Burns  has  not  signed  or  sworn  to  said 
bill."  The  matter  of  the  signature  is  already  disposed  of ;  and  it  is 
hardly  necessary  to  say  that  a  bill  need  not  be  sworn  to. 

4.  The  other  causes  assigned  relate  to  the  merits  of  the  case,  the 
substance  of  them  being  that  jNIary  Burns  is  not  entitled  to  the  relief 
which  she  seeks. 

5.  But  another  formal  cause  was  alleged  at  the  hearing  which 

75 


76 


CREATION. 


should  be  considered  here.  It  is  contended  that,  as  the  remedy 
sought  is  only  for  the  wife,  the  husband  is  improperly  joined  with 
her  as  plaintiff. 

Though  a  married  woman  may  bring  a  bill  for  the  protection  of 
her  separate  interests  without  joining  her  husband,  and  may,  in  a 
proper  case,  make  him  a  defendant,  yet  it  is  proper  for  her  to  join 
him  as  plaintiff  with  her  in  a  case  in  which  he  has  no  interest.  This 
is  because  he  is  the  natural  protector  of  her  interests,  and  is  in  con- 
formity with  the  rule  of  law.    Story  Eq.  PI.,  §  63. 

We  are  brought,  then,  to  the  question  whether,  vipon  the  allega- 
tions of  the  bill  and  the  case  as  reported,  ]\Iary  Burns  has  established 
her  claim  to  the  relief  sought  for. 

The  object  of  the  bill  is  to  set  aside  a  deed,  as  to  her,  which  pur- 
ports to  be  an  absolute  warranty  deed  of  the  land  described  in  it, 
executed  and  acknowledged  by  her  husband ;  and  also  executed  by 
herself,  for  the  purpose  of  releasing  her  rights  of  dower  and  home- 
stead in  the  land.  It  appears  by  the  report  that  when  her  seal  and 
signature  were  affixed  to  the  paper  it  was  a  printed  form  of  a  deed, 
in  which  none  of  the  blanks  had  been  filled  up.  She  gave  it  to  the 
defendant,  who  filled  the  blanks  in  her  absence,  by  writing  the  names 
of  the  parties,  the  description  of  the  land,  the  agreement  of  release 
on  her  part,  and  also  the  date  and  the  other  words  necessary  to  com- 
plete it.  After  being  thus  filled,  it  was  executed  and  acknowledged 
by  her  husband.  The  defendant  offered  to  prove  that  when  she 
signed  it  she  authorized  him  to  fill  it  up  as  he  did ;  and  that  after  it 
was  filled  up,  and  the  husband  had  executed  it,  the  defendant  in- 
formed her  of  the  facts,  and  she  thereupon  verbally  assented  to  what 
had  been  done,  and  agreed  that  it  should  be  taken  to  be  her  deed  duly 
executed.  This  evidence  was  rejected  ;  and  the  question  presented  is, 
whether  these  facts,  if  proved,  would  have  made  the  instrument  valid 
as  her  deed.  The  ancient  doctrine  of  the  common  law,  as  stated  in 
the  authorities  cited  by  the  plaintiff's  counsel,  is  not  denied.  It  is 
stated  in  Shep.  Touchstone,  54,  as  follows :  "Every  deed  well  made 
must  be  written ;  i.  e.,  the  agreement  must  be  all  written  before  the 
sealing  and  delivery  of  it ;  for  if  a  man  seal  and  deliver  an  empty 
piece  of  paper  or  parchment,  albeit  he  do  there  withal  give  command- 
ment that  an  obligation  or  other  matter  shall  be  written  in  it,  and  this 
be  done  accordingly,  yet  this  is  no  good  deed." 

This  doctrine  still  prevails  in  England.  The  case  of  Texira  v. 
Evans,  which  was  tried  at  nisi  prins,  is  cited  in  Master  v.  Miller,  i 
Anstr.  228,  in  which  Lord  Mansfield  held  a  contrary  doctrine.  In 
that  case  the  defendant,  wishing  to  raise  money,  had  signed  and 
sealed  a  bond,  and  placed  it  in  the  hands  of  an  agent,  with  blanks  for 
the  sum  and  the  name  of  the  obligee.  The  agent  borrowed  the  money 
of  the  plaintiff,  and  filled  up  the  blanks  with  the  sum  borrowed  and  the 
name  of  the  plaintiff.  The  deed  was  held  good.  But  in  Hibblewhite  v. 
M'Morine,  6  M.  &  W.  200,  the  question  arose  in  respect  to  a  convey- 


EXECUTli 


ion  the  conveva 


r,  II  M. 


ill  "of  ex- 
Fexira  v. 


IS  said 

771,  ,•!.-:,,,. 


.  Tity  ot  . 
.V  V.  ,-11.     WiL,>     . . 
in  New  York  in 


le  siiip, 


d  tnat  tile  bill  ot  sale 

11-.CC     t'i:.-     "T.-,ri,v+-..  ■ 


ks. 

■.  iJrre  liie  d:  ■ 

rdih  V.  '.. 

'-'  'i  rtn^i 

^material.     In  Hunt 

I  was  a 

-  did  IT" 

oeoi'  varic  \\'Ji:;oiii  imnu 


itied  with 

ection  of 

—    in  a 
join 


T  int'^-. 


(Jower  :iiul  hor/ic  • 

vlicn  her  seal  and 

•r  it  was  a  t  rm  of  a  deed, 

:v-pn  rii,-,-  .  ■..••vo  it  to  the 

the  name? 


ter  it 

:  ut  in- 

'•nted  to  what 

her  deed  duly 

1  presented  is. 

■  uid  iiavc;::acle  mc  ir  ^'  valid 

0  of  the  c^niiTion  ]'■  led  in 

It  is 
•nnde 


lent  must  be  all 


iimmand- 


d  and  the 
I'e white  v. 

a  convey- 


EXECUTION    OF   SEALED    INSTRUMENTS,  jy 

ance  of  railway  shares  which  was  required  by  statute  to  be  by  deed. 
The  name  of  the  purchaser  had  been  left  blank,  and  was  written  by 
him  after  the  conveyance  to  him.  The  point  was  thoroughly  argued, 
and  most  of  the  English  cases  which  had  any  bearing  on  it  were  cited. 
Upon  full  consideration  the  conveyance  was  held  to  be  void.  The 
case  of  Tepira  v.  Evans  was  overruled.  Parke,  B.,  remarked  that 
it  had  been  justly  questioned  by  Mr.  Preston  in  his  edition  of  Shep- 
pard's  Touchstone,  "as  it  assumes  there  could  be  an  attorney  with- 
out deed."  And  he  says  of  the  defense  in  that  case  that  it  is  an  at- 
tempt to  make  a  deed  transferable  and  negotiable  like  a  bill  of  ex- 
change or  an  exchequer  bill,  which  the  law  does  not  permit. 

In  Davidson  v.  Cooper,  ii  M.  &  W.  793,  the  case  of  Texira  v. 
Evans  is  again  referred  to  and  is  declared  to  be  overruled. 

But  the  defendant's  counsel  contend  that  the  English  doctrine  does 
not  prevail  in  Massachusetts,  New  York  and  Pennsylvania.  It  is 
true  that  in  the  latter  state  the  authority  of  Texira  v.  Evans  is 
adopted,  and  the  case  is  said  to  have  overruled  the  authority  of  Shep- 
pard's  Touchstone,  Perkins  and  Coke  upon  Littleton.  Wiley  v. 
Moor,  17  S.  &  R.  438.  It  has  also  been  adopted  in  New  York  in 
Wooley  V.  Constant,  4  Johns.  54.  In  that  case,  a  bill  of  sale  of  a  ship 
had  been  executed,  leaving  blanks  for  the  recital  of  the  register ;  and 
these  were  filled  up  after  the  delivery,  by  consent  of  parties.  It  was 
held  to  be  valid,  on  the  authority  of  Texira  v.  Evans.  But  the  action 
was  trover  for  the  ship,  and  the  court  remarked  that  the  bill  of  sale 
was  perfectly  competent,  with  the  blank  in  it  to  pass  the  property. 
The  same  case  was  again  cited  as  authority  in  Ex  parte  Kerwin,  8 
Cow.  118,  where  the  bond  would  not  have  been  valid  without  filling 
the  blanks. 

None  of  the  cases  decided  by  this  court  adopt  the  authority  of 
Texira  v.  Evans,  though  some  of  them  give  some  countenance  to  its 
doctrines.  In  Smith  v.  Crooker,  5  Mass.  538,  a  treasurer  had  made  a 
bond  in  which  the  name  of  the  surety  had  been  left  blank ;  and  after 
delivery  it  was  filled  up.  The  bond  was  held  good,  on  the  authority 
of  several  ancient  cases,  the  fact  being  specially  noticed  that  the  alter- 
ation was  immaterial.  In  Hunt  v.  Adams,  6  Mass.  519,  the  instru- 
ment in  question  was  a  promissory  note,  not  under  seal,  and  there- 
fore the  question  did  not  arise.  The  immaterial  word  "year"  had  at 
first  been  omitted,  and  was  afterwards  inserted.  But  Parsons,  C.  J., 
in  giving  the  opinion,  cited  the  authorities  relating  to  deeds,  which 
he  had  before  cited  in  Smith  v.  Crooker,  and  also  said  that  in  custom- 
house bonds  it  was  the  practice  to  leave  a  blank  for  the  amount  of 
the  duties  when  ascertained,  to  be  filled  after  delivery,  the  obligors 
being  considered  as  consenting  that  the  blanks  shall  be  thus  filled  up. 
The  case  of  Warring  v.  Williams.  8  Pick.  322,  decides  that  where  an 
instrument  was  signed  by  several  parties,  and  afterwards  altered  by 
the  addition  of  a  seal  and  the  interlineation  of  the  words  "jointly  and 
severally,"  a  party  to  the  instrument  who  was  present  and  consenting 


78  CREATION. 

to  the  alteration  would  be  bound  by  it,  though  the  others  were  not 
bound.  But  in  the  very  next  case  of  Warring  v.  Williams,  lb.  326, 
which  was  an  action  brought  against  another  party  to  the  same  in- 
strument, it  was  held  that  a  signature  in  blank  does  not  authorize 
anything  to  be  written  over  it  beyond  a  simple  contract,  and  that  au- 
thority to  affix  a  seal  requires  a  power  of  attorney  under  seal.  Par- 
ker V.  Hill,  8  Met.  447,  merely  decides  that  a  ratification  of  the  de- 
livery of  a  deed  may  be  proved  by  the  acts  and  declarations  of  the 
grantor,  and  that  his  declarations  made  to  a  person  who  is  not  a 
party  to  the  instrument  are  admissible  in  evidence.  The  editors  of 
the  American  edition  of  the  Exchequer  Reports,  in  a  note  to  Hibble- 
white  V.  M'Morine,  cite  some  of  the  above  cases,  and  also  the  case  of 
Adams  v.  Frye,  3  Met.  103.  as  adopting  the  doctrine  that  blanks  left 
in  a  deed  may  be  filled  by  consent  of  parties,  after  delivery.  But  the 
case  of  Adams  v.  Frye  relates  altogether  to  a  different  point.  The 
alteration  there  considered  was  not  the  filling  of  a  blank  by  consent, 
but  procuring  a  person  to  subscribe  his  name  as  a  witness  after  de- 
livery, and  without  consent.  The  court  held  that  it  would  not  avoid 
the  deed  unless  fraudulently  done. 

Gardner  v.  Gardner,  5  Cush.  483,  cited  for  the  plaintiffs,  decides 
that  a  deed,  signed  for  the  grantor  in  his  presence,  and  at  his  request, 
is  good  without  a  power  of  attorney.  Its  value  as  bearing  upon  the 
question  before  us  is,  that  it  states  accurately  the  distinction  between 
acts  done  in  the  presence  and  by  the  direction  of  the  principal,  and 
acts  done  in  his  absence.  The  former  are  regarded  as  by  the  prin- 
cipal himself  and  the  instrument  need  not  purport  to  be  executed  by 
attorney,  while  the  latter  must  be  done  under  a  power,  and  must  pur- 
port to  be  so  done.  According  to  this  distinction,  it  is  held  in  Eng- 
land that  where  a  deed  is  delivered  containing  blanks  to  be  filled  up, 
they  may  afterwards  be  filled  in  the  presence  and  by  the  direction  of 
the  grantor,  and  the  deed  is  valid.  This  is  on  the  ground  that  such 
acts  are  equivalent  to  a  redelivery  of  the  deed  in  a  perfect  state  by 
the  grantor.  Hudson  v.  Revett,  5  Bing.  368.  The  filling  of  the 
blanks  in  his  presence  and  by  his  consent  is  equivalent  to  filling  them 
by  his  own  hand  ;  the  deed  is  then  under  his  own  control,  and  may 
be  delivered  as  a  perfect  deed. 

From  this  review  of  the  cases  decided  in  this  court,  it  is  apparent 
that  they  contain  nothing  decisive  of  the  point  before  us.  Smith  v. 
Crooker  is  the  most  favorable  to  the  defendant's  views  of  any  of 
them;  but  it  does  not  go  further  than  Eagleton  v.  Gutteridge,  11  M. 
&  W.  466.  In  that  case  a  power  of  attorney  had  been  executed 
abroad,  and  sent  to  the  attorney  with  a  blank  for  his  Christian  name. 
He  filled  the  blank,  and  this  act  was  held  not  to  invalidate  the  instru- 
ment. But  this  decision  was  made  by  the  same  court  that  overruled 
the  case  of  Texira  v.  Evans,  and  at  the  term  prior  to  the  decision  of 
Davidson  v.  Cooper,  and  must  have  been  regarded  as  consistent  with 
that  case,  and  with  Hibblewhite  v.  M'Morine.     If  the  filling  of  the 


blank  is  no!  .  .  uf  ciic  instruirjCtii,  ii 

inLT  to  thai  L  raith  v.  Crooker,  be  f^ 

uv-ry. 

ill  tlie  present  case,  there  was  no  redelivery  of  the  instrument  after 
the  blanks  were  filled.  All  that  the  defendant  offered  to  prove  was, 
thra  he  communicated  the  facts  to  Mrs.  Burns,  and  she  assented  to 
.  i^-^t  he  had  done,  and  consented  that  he  mi^ht  hold  it  as  her  deed. 

••d  had  been  ;  r  at  the  time,  and  she 

made  fully  a  >  by  rerxdipcr  or  other- 

.  '  e.  and  had  it  under  her  control,  and  had  then  ; 
-^  rndant  should  take  it  as  her  deed,  it  would  have 

.   "ed  in  a  perfect  state.     But  witliout  the  presence  of  the  deed, 
n  '■■n:;  equivalent  to  this  could  take  place. 

■-    :  •  ^  the  paper  was  delivered,  it  had  no  validity  or  meaning.    The 
■  the  blanks  created  the      '  "1  parts  of  the  instn:. 

much  so  as  the  signing  ^;-.    If  such  an  act  c:. 

er  a  parol  agreement,  in  iu<:  dusence  of  the  grantor,  its  ef- 
r  be  to  overthrow  the  doctrine  that  an  authority  to  malce  a 
1  must  be  given  by  a  deed.    We  do  not  think  such  a  change  of  the 
.  '!  :2nt  common  law  has  been  made  in  this  commonwealth,  or  that 
policy  of  our  legislation  favors  it,  or  that  sound  policy  would 
ite  such  a  change.    Our  statutes,  which  provide  for  the  convey- 
:■.:,  c  of  real  estate  by  deed,  acknowledged  and  recorded,  and  for  ^he 
'        i    ■;  '.rnent  and  recording  of  powers  of  attorney  for  m: 
■  ■■'■<:     ii       \  idently  based  on  the  ancient  doctrines  of  the  con 
law  respecting  the  execution  of  deeds ;  and  a  valuable  and  important 
nnr])ose  which  these  doctrines  still  serve  is,  to  guard  against  mistn'  --= 
'  .:h  are  likely  to  arise  out  of  verbal  arrangements,  from  misui 
•cling  and  defect  of  memory,  even  where  there  is  no  fraud,      i  nt: 
•'   sent  case  shows  how  dancrerous  the  contra rv  doctrine  would  be. 
'■''   vy  Burns  sta  -     -  -  -cement  • 

•;n  her  and  t':  in  her  b. 

;    ;  should  be  held  to  indemnify  the  persons  who  should  become  bail 
liis  appearance  at  court,  and  for  no  other  purpose,  and  that  the 
■  was  filled  up  as  an  absolute  conveyance,  contrary  to  this  agree- 
"■^•he  makes  oath  to  the  truth  of  these  allegations,  and  it  is  to 
med  that  she  believes  them  to  be  true.     The  defendant  of- 
'e  the  contrary  ;  and  probably  he  v  '     ■  e  been  a  wit- 

-  his  statement.     It  '?  to  be  prfc-.  t^^^  ^r>  under- 

reement.     If  thi 
;1  follow  that,  th- 
outed  deed,  yet  it  reijiains  to  be  settled  by  parol  eviden 
(v.o!.*-  <.-.  's-ve  been  the.  grantee,  what  bv^^    ~i,-..-,i.!  u 
1  !her  the  deed  should  have  be 


.at 


a  over 


■'■'-  tne  others  were  not 
,  V.  Willinnr;    fb.  326, 
iitr  party  to 
■  blank  does 
u  simple  contract,  arsci  tliat  au- 


al.  Par- 
r  the  de- 
ls of  the 
is  not  a 


e  case  01 

'anks  left 

But  the 

int.    The 


of  attorney 
rs  that  a  rat; 
:iui}   !) :  ■    .he  acts  and  < 

)t  his  d  .  made  to  a  pev 

h-  in  evi-'  ' 
r  Repor, 
01  the  above  cases,  a; 
>  adopting  the  doctri: 
•  sent  of  parties,  after 
s  altogether  to  a  dific 
IS  not  the  filling  of  a  blank  hv  consent, 
as  a  wit- 
iat  it  wo 
.  i  V  dune. 

Cush.  483,  cited  (or  {ho.  Dlaintiffs,  decides 
•  grantor  in  i  t  his  request, 

..1  of  attorr 
that  it  state 
and  bv 
The  f. 


u, 


rding  ro  th  it  is  held  in  Eng- 

-  delivered  co:.^..  .......  .,,aaks  to  be  filled  up, 

iiiled  in  the  presence  and  by  the  direction  of 

]  is  valid.    This  is  on  the  ground  that  such 

^'delivery  of  the  deed  in  a  perfect  state  by 

Revett:,       '  368.     ""  '    ■ 

•  ]:-v  h{?  \  equiva!  ..  1 

ider  his  own  control,  and  may 


led  in  this  court,  it  is  apparent 
'  the  point  before  us.     Smith  v. 

the  defendant's  ^dews  of  any  of 

-     '  -      .     •.  ,  ^j_ 

uted 


verruied 
cision  of 
i.ent  with 
:g  of  the 


EXECUTION    OF   SEALED    INSTRUMENTS.  79 

blank  is  not  material  to  the  validity  of  the  instrument,  it  may,  accord- 
ing to  that  case  and  the  case  of  Smith  v.  Crooker,  be  filled  after  de- 
livery. 

In  the  present  case,  there  was  no  redelivery  of  the  instrument  after 
the  blanks  were  filled.  All  that  the  defendant  offered  to  prove  was, 
that  he  communicated  the  facts  to  Mrs.  Burns,  and  she  assented  to 
what  he  had  done,  and  consented  that  he  might  hold  it  as  her  deed. 
If  the  deed  had  been  present  and  exhibited  to  her  at  the  time,  and  she 
had  been  made  fully  acquainted  with  its  contents  by  reading  or  other- 
wise, and  had  it  under  her  control,  and  had  then  consented  that  the 
defendant  should  take  it  as  her  deed,  it  would  have  been  legally  de- 
livered in  a  perfect  state.  But  without  the  presence  of  the  deed, 
nothing  equivalent  to  this  could  take  place. 

When  the  paper  was  delivered,  it  had  no  validity  or  meaning.  The 
filling  of  the  blanks  created  the  substantial  parts  of  the  instrument 
itself ;  as  much  so  as  the  signing  or  sealing.  If  such  an  act  can  be 
done  under  a  parol  agreement,  in  the  absence  of  the  grantor,  its  ef- 
fect must  be  to  overthrow  the  doctrine  that  an  authority  to  make  a 
deed  must  be  given  by  a  deed.  We  do  not  think  such  a  change  of  the 
ancient  common  law  has  been  made  in  this  commonwealth,  or  that 
the  policy  of  our  legislation  favors  it,  or  that  sound  policy  would 
dictate  such  a  change.  Our  statutes,  which  provide  for  the  convey- 
ance of  real  estate  by  deed,  acknowledged  and  recorded,  and  for  the 
acknowledgment  and  recording  of  powers  of  attorney  for  making 
deeds  are  evidently  based  on  the  ancient  doctrines  of  the  common 
law  respecting  the  execution  of  deeds ;  and  a  valuable  and  important 
purpose  which  these  doctrines  still  serve  is,  to  guard  against  mistakes 
which  are  likely  to  arise  out  of  verbal  arrangements,  from  misunder- 
standing and  defect  of  memory,  even  where  there  is  no  fraud.  The 
present  case  shows  how  dangerous  the  contrary  doctrine  would  be. 
Mary  Burns  states  in  her  bill  that  the  verbal  agreement  made  be- 
tween her  and  the  defendant  was.  that  her  interest  in  her  husband's 
land  should  be  held  to  indemnify  the  persons  who  should  become  bail 
for  his  appearance  at  court,  and  for  no  other  purpose,  and  that  the 
deed  was  filled  up  as  an  absolute  conveyance,  contrary  to  this  agree- 
ment. She  makes  oath  to  the  truth  of  these  allegations,  and  it  is  to 
be  presumed  that  she  believes  them  to  be  true.  The  defendant  of- 
fered to  prove  the  contrary ;  and  probably  he  would  have  been  a  wit- 
ness to  prove  his  statement.  It  is  to  be  presumed  that  he  so  under- 
stood the  agreement.  If  this  method  of  executing  deeds  is  sanc- 
tioned, it  will  follow  that,  though  the  defendant  has  a  regularly  exe- 
cuted deed,  yet  it  remains  to  be  settled  by  parol  evidence  whether  he 
ought  to  have  been  the  grantee,  what  land  should  have  been  de- 
scribed, whether  the  deed  should  have  been  absolute  or  conditional, 
and  if  conditional,  what  the  terms  of  the  condition  should  have  been. 
To  leave  titles  to  real  estate  subject  to  such  disputes  would  subject 
them  to  great  and  needless  insecurity. 


8o  CREATION. 

And  in  respect  to  agreements  which  do  not  relate  to  real  estate, 
it  is  highly  useful  that  a  class  of  instruments  should  exist,  to  which 
persons  may  resort  with  a  feeling  of  confidence  that  they  shall  not 
be  binding  till  they  are  formally  executed,  and  that  when  thus  exe- 
cuted they  shall  not  be  liable  to  be  varied  or  controlled  by  parol 
evidence.  The  importance  of  these  formalities  is  greatly  increased 
by  the  fact  that  parties  are  now  made  competent  witnesses.  The 
convenience  which  men  might  occasionally  find  in  leaving  blanks  in 
sealed  instruments  to  be  filled  after  delivery,  would  be  but  a  slight 
compensation  for  the  evils  which  would  follow  the  abrogation  of  the 
ancient  rule  of  the  common  law. 

The  deed  not  having  been  executed  by  Mary  Burns  must  be  re- 
garded as  void,  so  far  as  her  estate  is  concerned.  It  is  valid  as  to 
her  husband,  so  far  as  he  could  by  his  sole  deed  convey  land  in  which 
a  right  of  homestead  existed ;  that  is,  it  conveyed  his  reversionary 
interest  after  the  termination  of  the  homestead  estate.  Smith  v. 
Provin,  4  Allen  516.  As  to  the  homestead  estate  and  the  Avife's 
right  of  dower,  the  deed  constitutes  a  cloud  upon  the  title,  and  a  bill 
in  equity  lies  to  remove  such  cloud,  in  cases  where  there  is  not  a 
plain,  adequate  and  complete  remedy  at  law.  2  Story  on  Eq.  700 ; 
Hamilton  v.  Cummings,  i  Johns.  Ch.  517;  Scott  v.  Onderdonk,  4 
Kernan  i. 

It  is  obvious  that  Mary  Burns  could  not  maintain  an  action  at  law 
in  respect  to  her  right  of  dower ;  and  as  she  is  in  occupation  of  the 
premises,  living  in  the  dwelling  house,  she  could  not,  without  aban- 
doning the  possession,  maintain  a  writ  of  entry  in  respect  to  her 
right  of  homestead.  Stearns  on  Real  Actions,  215,  216.  Her  only 
remedy  is  in  equity. 

The  defendant  contends  that  she  has  no  equity  which  the  court 
should  enforce,  until  she  pays  his  claim  against  the  husband,  being 
an  account  for  services  and  expenses  in  defending  the  husband  in 
several  criminal  prosecutions,  and  for  supplies  furnished  to  the 
family.  But  the  contract  of  a  wife  to  become  responsible  with  her 
husband  as  surety  for  the  payment  of  his  debts  has  no  legal  validity, 
and  should  not  be  regarded  as  valid  in  equity.  We  cannot  extend 
her  liabilities  beyond  the  point  where  our  recent  legislation  has 
carried  them. 

A  decree  should  be  entered  that  the  defendant  execute  to  Mary 
Burns  a  release  of  all  the  rights  of  dower  and  homestead  which  the 
deed  purports  to  convey  to  him,  to  be  framed  according  to  the  direc- 
tion of  the  court;  and  that  the  plaintififs  recover  their  costs  of  suit.^ 

^Accord:  Preston  v.  Hull,  23  Gratt.  (Va.)  600;  Gilbert  v.  Anthony,  i  Yerg. 
(Tenn.)  69. 

Compare  with  these  cases  Upton  v.  Archer,  41  Gal.  85. 

Contra:  Cribben  v.  Deal,  21  Ore.  211;  Allen  v.  Withrow,  no  U.  S.  119. 
See  also  Bridgeport  Bank  v.  New  York,  etc.,  R.  Co.,  30  Conn.  231,  274. 

See  Daniel  on  Negotiable  Instruments,  §§  142-147,  regarding  authority  to 
fill  blanks  in  negotiable  instruments. 


.     SEALED   INSTRUMENTS. 

.  RALL  V.  MUNN  and  A. 

RT  OF  Appeals  of  New  York.     5  N.  Y.  229. 

om  the  general  term  of  the  s  .  de- 

.:    vice-chancellor  of  the  " '  - 

.'  of  a  contract  for  the  s?' 

lihout  prejui,  .-Mcdy  ^'. 

vas  a  bill  m  equity  < 
li  Worrall  against  the 
pecific  performance  c 
•rstraw,  Rockland  cou;..;. 

defendant,  Prall,  by  contract  undr  •  27th  of 

'  er,  1843,  agreed  to  convey  to  the  piamiin,  l 
lIic  first  day  of  April  then  next,  the  lands  in  que 
•:•  ui  $4,500,  the  sum  of  $500  to  be  paid  On  the  dehvery  r 
,  and  the  balance  to  remain  on  bond  and  mortgage,  at  the 
K  per  cent.,  payable  on  or  before  the  expiration  of  three 
^he  date  of  said*  deed.    A  counterpart  of  the  agreement   ■.... 
<\  by  "Henry  Worrall,  for  Noah  Worrall,"  the  seal  being  af- 
:  ai  the  end  of  Henr}-  Worrall's  name. 

rail  subsequently  refused  to  perform  the  agreement  and,  on  the 
!  of  December,  1843,  contracted  to  sell  the  lands  to  the  defend- 
j\Iunn  for  $5,500.  The  latter  purchased  with  full  notice  of  the 
ntiflP's  rights,  and  gave  Prall  an  indemnity  against   Worrall's 

n  the  22d  of  December,  1843,  ^^^  plaintiff  tendered  to  Frail  a 

1.  and  mortgage,  and  the  first  payinent  specified  in  the  agreer^-^^^^ 

demanded  a  deed  and  offered  to  have  the  deed  and  bon^^ 

',e  bear  even  date  with  the  agreement,  and,  if  desired  by-  h'v^ii. 

''■■m  the  whole  considcrati<^n  •  ?.nd    <^n  the  ist  of  April,  1844, 

;     •"  made  a  like  tender  r  n;  both  of  which 

iefendants,  by  their  answers,  set  up  certain  objections  to  the 

which,  with  other"  facts  proved  on  the  hearing,  are  fully 

the  opinion  of  the  court.  The  case  was  brought  to  a  hear- 

'lie  vice-chancellor  of  the  second  circuit,  on  the  1  '      '       ' 

who  decreed  a  specific  performance.    From  th: 

'to  the  supreme  court,  where  the  decree  was  rc- 
:  J  Lidice  to  any   remedy  at  law,   which  the   corr- 

t  have  against  Prall  upon  his  agreement  for  dam,:: 
'^■f^reupon  tc^V-  <'  i-  ■mf.'-Ti 
*     * 

not  dealing  with  the  question  of 


.  \  1  ",  I      III      I  I    ..J  UL-l      I 

.r  is  hisj-hly  useful  \ 


r)v  ih^ 


should  exist,  to  which 

uce  that  they  shall  not 

v.d  that  when  thus  exe- 

or  control kaI  by  parol 

:;os  is  gre/''   ,    increased 

competent  .    The 

'    '''"i'l  •'■■  ■'  .  ianks  in 

■It  a  slight 

■  n;ij\v  liiv   '..^'•iiuatioa  of  the 


terest  after  ; 

-  •-,  4  All 

■  f  dower. 


'   on  V.  C 

UX  I. 

,-,  obvious 
'lect  to  hi. 
-OS,  livin: 
,  the  po' 
■  f  honie'^ 


.  (i  by  ]\T  ill  St  be  re- 

■  is  conc'.  ;  .  alid  as  to 

-.  sole  dc^  iand  in  which 

3,  it  CO.  . .  reversionary 

le  home  ite.    Smith  v. 

nnestead   v-i.i..^    and   the  wife's 

I  cloud  upon  the  title,  and  a  bill 

here  there  is  not  a 

>tory  on  Eq.  700; 

Onderdonk,  4 

at  law 
of  the 
a  ban- 
to  her 
•  only 

.>  hich  the  court 
'  imi  against  the  husband,  being 
s  in  defending  the  husband  in 
for  supplies  furnished  to  the 
to  become  responsible  with  her 
'■  his  debts  has  no  legal  validity. 
1  in  equity.  We  cannot  extend 
lere  our  recent  legislation  has 


the  coi 


fill  blii 


the  defendant  execute  to  Mary 

'jf  dower  and  homestead  which  the 

>  ^-e  framed  according  to  the  direc- 

;iffs  recover  their  costs  of  suit.^ 

,  a.)  600;  Gilbert  v.  Anthony,  I  Yerg. 

on  V.  Archer,  41  Cal.  85. 
Oic.  211;  Allen  V.  Withrow.  no  U.  S.  119. 
irk,  etc..  R.  Co.,  30  Conn.  231,  274. 
ents,  §§  142-147,  regarding  authority  to 


EXECUTION    OF    SEALED    INSTRUMENTS.  8 1 

WORRALL  V.  MUNN  and  Another. 
1 85 1.     Court  of  Appeals  of  New  York.     5  N.  Y.  229. 

Appeal  from  the  general  term  of  the  supreme  court,  where  a  de- 
cree of  the  vice-chancellor  of  the  second  circuit  for  the  specific  per- 
formance of  a  contract  for  the  sale  of  lands,  had  been  reversed,  and 
the  bill  dismissed,  without  prejudice  to  the  complainant's  remedy  at 
law  for  damages. 

This  was  a  bill  in  equity  exhibited  in  the  late  court  of  chancery 
by  Noah  Worrall  against  the  defendants,  Munn  and  Prall,  to  com- 
pel the  specific  performance  of  a  contract  for  the  sale  of  certain  lands 
in  Haverstraw,  Rockland  county. 

The  defendant,  Prall,  by  contract  under  seal,  dated  the  27th  of 
November,  1843,  agi"eed  to  convey  to  the  plaintifif,  by  deed,  on  or 
before  the  first  day  of  April  then  next,  the  lands  in  question,  for  the 
price  of  $4,500,  the  sum  of  $500  to  be  paid  on  the  delivery  of  the 
deed,  and  the  balance  to  remain  on  bond  and  mortgage,  at  the  rate 
of  six  per  cent.,  payable  on  or  before  the  expiration  of  three  years 
from  the  date  of  said  deed.  A  counterpart  of  the  agreement  was 
executed  by  "Henry  Worrall,  for  Noah  Worrall,"  the  seal  being  af- 
fixed at  the  end  of  Henry  Worrall's  name. 

Prall  subsequently  refused  to  perform  the  agreement  and,  on  the 
nth  of  December,  1843,  contracted  to  sell  the  lands  to  the  defend- 
ant Munn  for  $5,500.  The  latter  purchased  with  full  notice  of  the 
plaintiff's  rights,  and  gave  Prall  an  indemnity  against  Worrall's 
claim. 

On  the  22d  of  December,  1843,  the  plaintiff  tendered  to  Prall  a 
bond  and  mortgage,  and  the  first  payment  specified  in  the  agreement, 
and  demanded  a  deed  and  offered  to  have  the  deed  and  bond  and 
mortgage  bear  even  date  with  the  agreement,  and,  if  desired  by  Prall, 
to  pay  him  the  whole  consideration;  and,  on  the  ist  of  April,  1844, 
the  plaintiff  made  a  like  tender  and  offer  to  Munn ;  both  of  which 
were  refused. 

The  defendants,  by  their  answers,  set  up  certain  objections  to  the 
contract,  which,  with  other  facts  proved  on  the  hearing,  are  fully 
stated  in  the  opinion  of  the  court.  The  case  was  brought  to  a  hear- 
ing before  the  vice-chancellor  of  the  second  circuit,  on  the  pleadings 
and  proofs,  who  decreed  a  specific  performance.  From  this  decree, 
Munn  alone  appealed  to  the  supreme  court,  where  the  decree  was  re- 
versed without  prejudice  to  any  remedy  at  law,  which  the  com- 
plainant might  have  against  Prall  upon  his  agreement  for  damages. 
The  plaintiff  thereupon  took  this  appeal. 

Paige,  J. — ^  *     *     * 

The  only  remaining  questions  to  be  considered  are,  whether  the 

^  A  portion  of  the  opinion  not  dealing  with  the  question  of  appointment  is 
omitted. 

6— Reinhard  Cases. 


82  CREATION. 

authority  of  Henry  Worrall  to  execute  the  counterpart  should  have 
been  under  seal ;  whether  he  executed  the  agreement  in  the  name  of 
his  principal ;  and  if  the  counterpart  was  not  binding  on  Noah  Wor- 
rall, whether  the  original  was  binding  on  Prall. 

It  is  a  maxim  of  the  common  law  that  an  authority  to  execute  a 
deed  or  instrument  under  seal  must  be  conferred  by  an  instrument 
of  equal  dignity  and  solemnity ;  that  is,  by  one  under  seal.  This  rule 
is  purely  technical ;  a  disposition  has  been  manifested  by  most  of  the 
American  courts,  to  relax  its  strictness,  especially  in  its  application 
to  partnership  and  commercial  transactions.  I  think,  the  doctrine,  as 
it  now  prevails,  may  be  stated  as  follows,  viz.,  if  a  conveyance  or  any 
act  is  required  to  be  by  deed,  the  authority  of  the  attorney  or  agent 
to  execute  it  must  be  conferred  by  deed ;  but  if  the  instrument  or 
act  would  be  effectual,  without  a  seal,  the  addition  of  a  seal  will  not 
render  an  authority  under  seal  necessary,  and  if  executed  under  a 
parol  authority,  or  subsequently  ratified  or  adopted  by  parol,  the 
instrument  or  act  will  be  valid  and  binding  on  the  principal.  It  is 
said  that  the  rule  as  thus  relaxed  is  confined  in  its  application  to 
transactions  between  partners ;  but  it  seems  to  me  that  a  distinction 
between  partners  and  other  persons,  in  the  application  of  the  rule, 
as  relaxed  and  qualified  by  recent  decisions,  stands  upon  no  solid 
foundation  of  reason  or  principle. 

The  whole  authority  of  a  partner  to  act  for  his  co-partners  and 
to  bind  them  and  their  interest  in  the  co-partnership  property,  is 
founded  upon  the  common-law  doctrine  of  agency ;  so  far  as  he 
acts  for  his  partners,  he  is  an  agent.  (Story  on  Part.,  §  i.)  Thus,  it 
is  a  general  rule  of  the  common  law  that  one  partner  cannot,  from 
the  mere  relation  of  partnership,  bind  his  co-partners  by  deed  or 
instrument  under  seal,  even  in  commercial  dealings,  unless  specially 
authorized  to  do  so  by  an  instrument  under  seal.  (Story  on  Part. 
§  117;  3  Kent  Com.  47,  6th  edition.)  This  rule  springs  from  the 
common-law  maxim  before  mentioned,  applicable  to  the  general  re- 
lation of  principal  and  agent. 

There  are  numerous  cases  in  the  American  courts  in  which  the 
rule  has  been  relaxed  as  regards  partnership  transactions,  in  order 
to  adapt  it  to  the  necessities  of  trade.  (Story  on  Part.,  §  117;  3 
Kent's  Com.  48.)  Thus,  the  doctrine,  as  applicable  to  partners,  is 
now  firmly  established  that  wherever  an  act  done  by  a  partner, 
within  the  scope  of  the  partnership  business  would  be  valid  if  done 
by  an  unsealed  instrument,  then,  although  done  by  an  instrument 
under  seal,  it  will  be  valid  and  bind  his  co-partners,  if  it  is  author- 
ized by  a  prior  parol  authority,  or  adopted  by  a  subsequent  parol 
ratification.  (Story  on  Part.,  ^§  121,  122;  Anderson  v.  Tompkins,  i 
Brock.  Cir.  C.  462,  Marshall,  C.  J. ;  3  Kent's  Com.  48,  6  Ed. ;  Smith 
V.  Kerr,  3  Comst.  150;  Gram  v.  Seton,  i  Hall  262,  Jones,  C.  J.; 
Skinner  v.  Dayton,  19  Johns.  513,  553  ;  Everit  v.  Strong,  5  Hill  163 ; 
Tapley  v.  Butterfield,  i  Mete.  515;  Cady  v.  Shepard,  11  Pick.  400, 


one  partner  cannot  bind  his  co-partners  by 

/  \inder  seal,  has  been  held,  in  several  cases. 

•:re  one  partner  conveys  by  deed,  property  ol 

he  might  have  conveyed  by  an  unsealed  instrumei 

'^■"^re  addition  of  the  seal  does  not  vitiate  the  con- 

Butterfield,  i  Mete.  515;  Anderson  v.  Tomp- 

K.  -.^ir.  C.  462;  Everit  v.  Strong,  5  Hill  165  ;  Milton  v. 

Mete.  244.)    In  Gram  v.  Seton   (supra).  Chief  Justice 

<t  superior  court  of  the  city  of  New  York,  held  that  the 

one  partner  to  bind  his  co-partners  by  deed,  may  even  be 

:n  the  acts  and  acquiescence  of  the  co-partners.   No  good 

lie  assigned  for  a  distinction  between  partners  and  other 

relation  to  the  technical  rule  of  the  common  law,  that  in 

authority  to  execute  a  deed  must  be  by  deed.  The  rights 

,s  of  partners  in  their-  acts  for  each  other  are  governed 

-;  are  the  relations  of  principal  and  agent;  each 

red  an  agent  for  his  co-partners;  and  the  same 

and  implied,  general  and  special  authority  must 

,  .rs,  as  between  principal  and  agent.   Upon  prin- 

lerefore,  whenever  an  instrument,  either  as  between  partners, 

ipal  and  agent,  would  be  effectual  for  the  purpose  intended, 

'  a  seal,  the  addition  of  a  seal  should  not  create  the  necessity 

ithority  under  seal,  to  authorize  an  agent  to  execute  it. 

awrence  v.  Taylor  (5  Hill  113),  Cowen,  J.,  speaking 

\-  executed  by  an  attorney,   without  authority    under  seal, 

Yet  in  such  case  it  does  not  follow  that  it  shall  not  operate 

;f  the  contract  may  be  made  without  deed  the  seal  shall  not 

its  inuring  as  a  simple  contract,  though  the  authority  be  by 

r  merely  imphed  from  the  relations  between  the  principal 

at."   In  Skinner  v.  Dayton  (19  Johns.  554,  558.  in  the  court 

'''-^.  Soencer,  Ch.  J,,  held  that  the  contract  executed  in  that 

under  seal,  for  the  directors  of  the  company,  ought 

ered  a  personal  covenant  of  Skinner,  in  equity,  and 

company  were  liable  for  a  breach  of  the  covenant,  although 

'  '-'ty  of  Skinner  was  not  conferred  by  deed;  and  such  was 

;  of  the  court  of  errors.    Skinner  was  a  director  and  the 

f  an  association  for  manufacturing  cotton,  and  entered 

rnct  for  the  making  of  <.nir\p  machinfry  for  the  comnanv : 

■  was  ratilied  by  ' 

niers.  Tlic  court  • 

Lion  of  the  act  ol  the  agent  and  equivalent  to  a  pn 
direct  authorization  to  do  the  act. 
1  v.  Van  Vechten  (19  Johns.  60),  a  contr 
.,.,-,  1  ;„(     k„  ii^g  defendants,  as  a  con  -^  " 
■  Ibany.  with  the  plaintiff? 


82 


authority  of  Henry 
been  under  seal;  w! 
his  principal;  and  ii 
r'lll,  whether  th  - 

It  is  a  maxi: 
dv    ■ 
of 
is 

A:' 

1'!  partners 
;l  now  <''^^■ 


■  i  have 

.uime  of 

.»ah  Wor- 

authority  to  execute 

;  by  an  instrument 

■  ler  seal.  This  rule 

-tC'l  by  most  of  the 

y  in  its  application 

!is.   I  think,  the  doctrine,  as 

viz.,  if  p.  <"  '^'  ■^-ance  or  any 

ty  of  th>  y  or  agent 

;d ;  but  if  rument  or 


sf  pi,  the  additi( 


A  will  not 

d  under  a 

.         parol,  the 

tn  the  principal.    It  is 

1   in  its  application  to 

e  that  a  distinction 

-'•;■    -f  the  rule, 

1  no  solid 


.  :  o  and 

.:>  property,  is 

'    Tar  as   he 

hus,  it 

/•,  from 

y  deed  or 

;:iicss  specially 

Story  on  Part. 

rule  springs  from  the 

i1}le  to  the  general  re- 

:.<..^.i  courts  in  which  the 
ship  transactions,  in  order 
i  Story  on  Part.,  §  117;  3 
-  applicable  to  partners,  is 
in  act  done  by  a   partner, 
ness  would  be  valid  if  done 
,gh  done  by  an  instrument 
co-partners,  if  it  is  author- 
ited  by  a  subsequent  parol 
\nderson  v.  Tompkins,  i 
-  Com.  48,  6  Ed. ;  Smith 
'lall  262,  Jones,  C.  T. 
t  V.  Strong.' 5  Hill  16,; 
Shepard,  11  Pick.  40 


EXECUTION    OF    SEALED    INSTRUMENTS.  83 

403.)  And  the  rule  that  one  partner  cannot  bind  his  co-partners  by 
deed,  without  an  authority  under  seal,  has  been  held,  in  several  cases, 
not  to  apply  to  a  case  where  one  partner  conveys  by  deed,  property  of 
the  firm,  which  he  might  have  conveyed  by  an  unsealed  instrument 
or  by  parol.  The  mere  addition  of  the  seal  does  not  vitiate  the  con- 
veyance. Topley  V.  Butterfield,  i  Mete.  515;  Anderson  v.  Tomp- 
kins, I  Brock.  Cir.  C.  462 ;  Everit  v.  Strong,  5  Hill  165  ;  Milton  v. 
Mosher,  7  Mete.  244.)  In  Gram  v.  Seton  (supra),  Chief  Justice 
Jones,  of  the  superior  court  of  the  city  of  New  York,  held  that  the 
authority  of  one  partner  to  bind  his  co-partners  by  deed,  may  even  be 
implied  from  the  acts  and  acquiescence  of  the  co-partners.  No  good 
reason  can  be  assigned  for  a  distinction  between  partners  and  other 
persons,  in  relation  to  the  technical  rule  of  the  common  law,  that  in 
all  cases  an  authority  to  execute  a  deed  must  be  by  deed.  The  rights 
and  liabilities  of  partners  in  their  acts  for  each  other  are  governed 
by  the  same  rules  as  are  the  relations  of  principal  and  agent ;  each 
partner  being  considered  an  agent  for  his  co-partners ;  and  the  same 
questions  of  express  and  implied,  general  and  special  authority  must 
arise  between  partners,  as  between  principal  and  agent.  Upon  prin- 
ciple, therefore,  whenever  an  instrument,  either  as  between  partners, 
or  principal  and  agent,  would  be  effectual  for  the  purpose  intended, 
without  a  seal,  the  addition  of  a  seal  should  not  create  the  necessity 
of  an  authority  under  seal,  to  authorize  an  agent  to  execute  it. 

In  Lawrence  v.  Taylor  (5  Hill  113),  Cowen,  J.,  speaking  of  a 
specialty  executed  by  an  attorney,  without  authority  under  seal, 
says :  "Yet  in  such  case  it  does  not  follow  that  it  shall  not  operate 
at  all ;  if  the  contract  may  be  made  without  deed  the  seal  shall  not 
prevent  its  inuring  as  a  simple  contract,  though  the  authority  be  by 
parol,  or  merely  implied  from  the  relations  between  the  principal 
and  agent."  In  Skinner  v.  Dayton  (19  Johns.  554,  558,  in  the  court 
of  errors),  Spencer,  Ch.  J.,  held  that  the  contract  executed  in  that 
case  by  Skinner,  under  seal,  for  the  directors  of  the  company,  ought 
not  to  be  considered  a  personal  covenant  of  Skinner,  in  equity,  and 
that  the  company  were  liable  for  a  breach  of  the  covenant,  although 
the  authority  of  Skinner  was  not  conferred  by  deed ;  and  such  was 
the  decision  of  the  court  of  errors.  Skinner  was  a  director  and  the 
president  of  an  association  for  manufacturing  cotton,  and  entered 
into  a  contract  for  the  making  of  some  machinery  for  the  company ; 
the  contract  was  ratified  by  the  subsequent  parol  assent  and  acts  of 
the  stockholders.  The  court  decided  that  such  subsequent  ratification 
was  an  adoption  of  the  act  of  the  agent  and  equivalent  to  a  previous 
positive  and  direct  authorization  to  do  the  act. 

In  Randall  v.  Van  Vechten  (19  Johns.  60),  a  contract  under  seal 
had  been  entered  into  by  the  defendants,  as  a  committee  of  the  cor- 
poration of  the  city  of  Albany,  with  the  plaintiffs,  without  authority 
under  seal  from  the  corporation.  But  the  corporation  had  subse- 
quently recognized  by  parol  the  authority  of  the  committee  to  make 


84  CREATION. 

the  contract,  and  it  was  held  that  the  contract  was  binding  on  the 
corporation  and  that  an  action  of  assuuipsit  would  lie  against  the  cor- 
poration for  its  breach. 

In  the  Bank  of  Columbia  v.  Patterson  (7  Cranch  299,  307),  a  com- 
mittee of  the  corporation,  without  any  authority  conferred  by  deed, 
had  made  a  contract  in  their  own  names  as  such  committee  under 
their  private  seals,  and  the  Supreme  Court  of  the  United  States 
held  that  as  the  whole  benefit  of  the  contract  resulted  to  the  corpora- 
tion, and  as  the  corporation  had,  by  its  acts,  subsequently  adopted  the 
contract  an  action  of  assumpsit  would  lie  on  the  contract  against  the 
corporation. 

In  White  v.  Cuyler  (6  T.  R.  176),  where  a  wife,  unauthorized  by 
her  husband,  made  an  agreement  under  seal  with  a  servant,  provid- 
ing for  the  services,  it  was  held,  that  although  the  covenant  of  the 
wife  could  not  bind  the  husband,  the  servant  could  nevertheless  main- 
tain assumpsit  against  the  husband.  In  Damon  v.  Granby  (2  Pick. 
352),  it  was  decided  that  although  an  agent  who  contracts  for  the 
use  of  a  corporation,  under  his  own  seal,  does  not  bind  the  corpora- 
tion by  the  deed,  yet  if  he  had  authority  to  make  the  contract,  it  shall 
be  binding  on  the  corporation,  as  evidence  of  such  contract. 

In  Evans  v.  Wells  (22  Wend.  340,  341),  Senator  Verplank  said 
that  these  rules  as  to  sealed  instruments  were  not  applicable  to  cases 
where  a  deed  is  not  necessary,  and  that  in  such  cases,  an  act  of  the 
agent,  under  seal,  may  be  ratified  by  acts  in  pais. 

In  Hanford  v.  McNair  (9  Wend.  54),  an  agent  had  executed  a 
contract  under  seal,  for  the  purchase  of  timber,  not  being  authorized 
by  deed :  Sutherland,  J.,  said,  that  subsequent  acts  of  the  princi- 
pal, recognizing  and  carrying  the  agreement  into  effect,  might  be 
sufiicient  to  make  the  contract  binding  on  the  principal  as  a  parol 
contract.  In  Blood  v.  Goodrich  ( 12  Wend.  527)  and  in  Hanford  v. 
McNair  (9  Id.  54),  the  supreme  court,  in  laying  down  the  common- 
law  rule  that  an  authority  to  execute  a  deed  must  be  conferred  by 
deed,  did  not  advert  to  the  distinction  between  cases  where  the  con- 
veyance or  contract  must  be  made  under  seal,  and  cases  where  they 
would  be  effectual  without  a  deed.  These  authorities  show  that  there 
is  no  distinction  between  partners  and  other  persons,  in  the  applica- 
tion of  the  modern  rule,  that  wherever  an  instrument  would  be  ef- 
fectual, without  a  seal,  it  will  be  valid  and  binding  on  the  principal, 
although  executed  under  seal  by  an  agent,  without  authority  by  deed, 
if  authorized  by  a  previous  parol  authority  or  subsequently  ratified 
or  adopted  by  parol. 

In  this  case  a  seal  was  not  necessary  to  the  validity  of  the  contract 
for  the  sale  of  the  lands  at  Haverstraw.  All  that  the  statute  of  frauds 
requires  is,  that  a  contract  for  the  sale  of  lands  shall  be  in  writing, 
and  that  such  writing  express  the  consideration,  and  be  subscribed 
by  the  party  by  whom  the  sale  is  made,  or  by  his  agent  lawfully  au- 
thorized.   The  authority  of  the  agent  may  be  conferred  by  parol ; 


EXlC.  ilON   OF   SEALED   INSTRL 

Tjeitber  a  written  authority  nor  an  authority  under  seal  is  required. 
' ;.  ]lr.-.  Stat.  135,  §§  8  and  9;  10  Paige  386;  5  Hill  107.)    It  results 
le  foregoing  authorities  that  the  counterpart  of  the  agreement 
d  by  Henry  Worrall,  under  seal,  was  binding  on  his  princi- 
p:il,  although  his  authority  to  execute  it  was  not  conferred  by  deed. 
*     *     *     The  decree  of  the  supreme  court  must,  ^-heref^re,  be  re- 
versed, and  the  decree  of  the  vie 
Decree  of  the  supreme  court 
cellor  affirmed.^ 


CROY  V.  BUSENBARK  et  al. 

1880.  ^  ^.'_:vrz:.:e  Coup  :;  Tnd.  48. 

V,,  J.  —  J  i!c  tu.iiiMaiUL  :.i  uu^  ^d mj  j ci^i i:>ented  that  the 

Immons  Buseubark,  on  the  26th  day  of  April,  1875,  re- 

,  a  judgment  in  the  court  '■    '  ainst  one  Squire  Clark,  for 

;  that  afterward,  on  the  i  f  June.  1S75,  Edwin  Clark 

lliam  J.  Krug  became  replevin  bail  for  the  pa3nTient  of  such 

•^nt,  and  that  at  the  same  time  some  person  unknown  to,  and 

L  the  consent  of,  the  plaintiff,  Frederick  Croy,  signed  his  name 

ntry  of  replevin  bail  on  such  judgment  as  co-obligor  with  the 

win  Clark  and  William  J.  Krug;  that  an  execution  had  been 

m  said  '     '  against  the  said  Squire  Clark,  as  the  judg- 

.    ;ebtor,  z-  ■■t  the  said  Edwin  Clark,  William  J.  Knig 

the  plaintiff,  a^  replevin  bail,  and  placed  in  the  hands  of  \^ 

'  effect  of  seals  has  bee; 
Code  of  Iowa  (1897),  ' 
'■i\  4041  and  4042;  25  Am.  .i  h.i'.g.  L:\i 

ritA''  to  the  agent  to  >?xccute  the  writ^^  iviner  been 

:l  is  insisted  that  it  ■■' '  '   'and  the  ;.  f 

•loes  not  require  the  ag!  rity  to  !■  / 

he  in  wr;^^-'    •    '-'■    ■"-■-  <-'  ■     -  "'•■'■  > 

.   Thedi.  n 

:    ;!-1(l    r     ■     .    ,  _  ,  ■'r^ 

to  the  a;  :• 

.ion,  the 
lid  this  couni  :  ay   be  by 

•^hf^  contract  •■  doe?  rf^" 

■-ibt  aboi.it  1  rule  ir.; 

'!jst  be  c  v  an  ins; 


1  is  of  no 
^.i  ample,  s.   .  .,  ;.  . 
cipal.  and  in.  contract*."    Van  Syckc 

34  N.J.  L.  ;•■ 


84 

t.lu-  contrar  -s  binding  on  the 

corporatioii  ■  Ainst  the  cor- 

■u  ('/  Ci  .,  307),  a  com- 

vnh'  ••/  authc :  iTed  by  deed, 

ha^^  II  names  as  ?ii;ii  committee  under 

•■i-  ■.i-me  Court  of  the  United  States 

■ntract  rcMilted  to  the  corpora- 
acts,  subsequently  adopted  the 
He  on  tlie  contract  against  the 

where  a  n'ife.  unauthorized  by 

uH'Jer  seal  •  -vant,  provid- 

';''!*  -iI'Ii'm;  .   ,  :venant  of  the 

vjld  nevertheless  main- 

^  V.  Granby  (2  Pick. 

contracts  for  the 

"1  the  corpora- 

ntract,  it  shall 

'ank  said 
led  instr  oases 

'eu  a 
rized 


'ig  on  the  principal  as  a  parol 

,..  \Vend.  527)  and  in  Hanford  v. 

court,  in  laying  down  the  common- 

■cute  a  deed  mtist  be  conferred  by 

ction  between  cases  where  the  con- 

'c  under  seal,  ani'  '  ' 

These  a'.illior't  1 

MS,  iu  the  applica- 
nent  would  be  ef- 

■  !  binding  on  the  principal, 
I  rx.^^i.i,  without  authority  by  deed, 

I  authority  or  subsequently  ratified 

^^sjary  to  the  vahdity  of  the  contract 

■  '1  that  the  statute  of  frauii- 
'  lands  shall  be  in  writin;;; 

an  nsideration,  and  be  subscribe- 

by  I  .  ;  '•  orhv  his  agent  lawfully  au 

thorize  nferred  by  parol 


EXECUTION    OF   SEALED    INSTRUMENTS.  85 

neither  a  written  authority  nor  an  authority  under  seal  is  required. 
(2  Rev.  Stat.  135,  §§  8  and  9;  10  Paige  386;  5  Hill  107.)  It  results 
from  the  foregoing  authorities  that  the  counterpart  of  the  agreement 
executed  by  Henry  Worrall,  under  seal,  was  binding  on  his  princi- 
pal, although  his  authority  to  execute  it  was  not  conferred  by  deed. 
*  *  *  The  decree  of  the  supreme  court  must,  therefore,  be  re- 
versed, and  the  decree  of  the  vice-chancellor  affirmed. 

Decree  of  the  supreme  court  reversed,  and  that  of  the  vice-chan- 
cellor affirmed.^ 


CROY  V.  BUSENBARK  et  al. 

Supreme  Court  of  Indiana.     ^^2  Ind.  48. 

NiBLACK,  C.  J. — The  complaint  in  this  case  represented  that  the 
defendant  Emmons  Busenbark,  on  the  26th  day  of  April,  1875,  r^' 
covered  a  judgment  in  the  court  below  against  one  Squire  Clark,  for 
$863.90;  that  afterward,  on  the  28th  day  of  June,  1875,  Edwin  Clark 
and  William  J.  Krug  became  replevin  bail  for  the  payment  of  such 
judgment,  and  that  at  the  same  time  some  person  unknown  to,  and 
without  the  consent  of,  the  plaintiff,  Frederick  Croy,  signed  his  name 
to  the  entry  of  replevin  bail  on  such  judgment  as  co-obligor  with  the 
said  Edwin  Clark  and  William  J.  Krug ;  that  an  execution  had  been 
issued  on  said  judgment  against  the  said  Squire  Clark,  as  the  judg- 
ment debtor,  and  against  the  said  Edwin  Clark,  William  J.  Krug 
and  the  plaintiff,  as  replevin  bail,  and  placed  in  the  hands  of  William 

^The  legal  effect  of  seals  has  been  annulled  or  limited  by  statute  in  many 
states.  See  Code  of  Iowa  (1897),  §  3068;  Burns'  Revised  Stat,  of  Indiana 
(1908),  §§  466,  4041  and  4042;  25  Am.  &  Eng.  Ency.  (2d  ed.)  79. 

"The  authority  to  the  agent  to  execute  the  written  agreement  having  been 
by  parol,  it  is  insisted  that  it  does  not  bind  the  principal.  Our  statute  of 
frauds  does  not  require  the  agent's  authority  to  make  a  contract  to  convey 
land  to  be  in  writing;  it  exacts  a  written  contract,  not  a  written  power  to 
the  agent.  The  distinction  is  clearly  drawn  in  the  terms  of  the  statute  between 
conveying  and  contracts  to  convey  land.  In  the  former  case,  under  the  tenth 
section,  the  power  to  the  agent  must  be  in  writing ;  while  in  the  latter,  under 
the  fourteenth  section,  the  words  'in  writing'  are  omitted,  and  the  cases,  both 
in  England  and  this  country,  agree  that  the  appointment  may  be  by  parol. 
The  fact  that  the  contract  in  this  case  was  sealed  by  the  agent  does  not  vitiate 
it.  There  is  no  doubt  about  the  general  rule  that  a  power  to  execute  an  instru- 
ment under  seal  must  be  conferred  by  an  instrument  of  equal  solemnity.  If 
the  writing  given  by  the  agent  be  under  seal,  and  that  be  essential  to  its  valid- 
ity, the  authority  of  the  agent  must  be  of  equal  dignity,  or  it  cannot  operate. 
Here  a  seal  was  not  vital  to  the  contract ;  there  was  no  authority  to  the  agent 
to  attach  a  seal,  therefore  the  seal  is  of  no  value,  but  the  power  to  execute  the 
contract  without  seal  having  been  ample,  so  far  it  becomes  the  act  of  the  prin- 
cipal, and  inures  as  a  simple  contract."  Van  Syckel,  J.,  in  Long  v.  Hartwell, 
34  N.  J.  L.  116,  121. 


86  CREATION. 

J.  Krug,  as  sheriff  of  Montgomery  county,  who  was  threatening  to 
levy  such  execution  on  the  property  of  the  plaintiff.  Wherefore  the 
plaintiff  prayed  that  the  said  Krug,  as  such  sheriff',  might  be  enjoined 
from  levying  such  execution  upon  his  property,  and  for  other  relief. 

At  the  request  of  the  plaintiff  the  court  made  a  special  finding  of 
the  facts.  The  facts,  as  found  by  the  court,  may  be  stated  as  follows : 
That  a  judgment  was  rendered  in  the  Montgomery  circuit  court,  in 
favor  of  Emmons  Busenbark  and  against  Squire  Clark,  on  the  26th 
day  of  April,  1875  ;  that  the  defendant  William  J.  Krug,  as  sheriff 
of  Montgomery  county,  held,  and  had  held  since  the  i8th  day  of 
June,  1878,  an  execution  on  such  judgment  for  the  sum  of  $570.67, 
the  balance  due  thereon ;  that  said  Krug  had  levied  said  execution 
upon  the  real  estate  of  the  plaintiff,  and  was  about  to  sell  said  real 
estate  to  satisfy  said  execution,  and  would  do  so  unless  enjoined  by 
the  court  in  this  cause;  that  after  said  judgment  was  rendered,  to  wit, 
on  the  28th  day  of  June,  1875,  the  said  William  J.  Krug,  Edwin 
Clark,  and  the  plaintiff  met  together  at  the  office  of  the  clerk  of  the 
court  rendering  the  judgment,  when  said  clerk,  by  one  James  B. 
Crawford,  his  deputy,  made  the  following  entry  on  the  lower  margin 
of  the  record  of  said  judgment,  and  at  the  proper  place,  to  wit :  "We, 
the  undersigned,  hereby  acknowledge  ourselves  replevin  bail  for  stay 
of  execution  on  the  above  judgment  for  the  payment  of  the  same, 
together  with  interest  and  costs  accrued  and  to  accrue,  June  28, 
1875 ;"  that  the  said  William  J.  Krug  and  Edwin  Clark  signed  said 
entry  of  replevin  bail,  and  the  said  Edwin  Clark,  in  the  presence  and 
by  the  consent  and  direction  of  the  plaintiff,  signed  the  plaintiff's 
name  to  said  entry  of  replevin  bail ;  that  said  entry  was  then  and 
there  taken  and  approved  by  the  said  clerk  in  the  following  words, 
written  opposite  said  signatures :  "Taken  and  approved  by  me,  J. 
M.  Vance,  Clerk.  Attest,  J.  B.  Crawford."  That  the  plaintiff  did  not 
sign  his  name  to  said  entry  of  replevin  bail  otherwise  than  as  above 
stated ;  that  the  plaintiff  could  not  write  his  name  and  was  accus- 
tomed to  making  his  mark  w'henhe  signed  his  name  himself. 

As  a  conclusion  of  law,  the  court  held  that  the  entry  of  replevin 
bail  set  out  as  above  was  valid  against  and  binding  upon  the  plaintiff, 
and  that  he  was  not  entitled  to  the  relief  prayed  for  in  his  complaint. 
To  this  conclusion  of  law  the  plaintiff  excepted,  but,  nothwithstand- 
ing,  the  court  rendered  judgment  thereon  in  favor  of  the  defendants. 

The  only  question  presented  here  is,  did  the  court  err  in  its  con- 
clusion of  law  from  the  facts  as  found  by  it? 

Section  421  of  the  code,  2  R.  S.  1876,  p.  202,  which  has  reference 
to  the  recognizance  of  bail  for  the  stay  of  execution,  provides  that 
"The  recognizance  shall  be  written  immediately  following  the  entry 
of  the  judgment,  and  signed  by  the  bail." 

The  act,  in  relation  to  the  construction  of  statutes,  enacts  that 
"The  words  'written'  and  'in  writing'  shall  include  printing,  litho- 
graphing, or  other  mode  of  representing  words  and  letters.    But  in 


SEALED   I NSTRUM ENl . v 

ignature  '"f  ??r.y  person  is  required,  th- 

ng  of  such  person  '  vk  shall  be  intended." 

I    315,  §  I.  clause  9. 

point  urged  by  the  appellant,  considered  in  its  natural 

uirtt,  applying  these  provisions  of  the  statutes  to  the  facts 

A  by  the  court,  he  cannot  be  held  to  have  siiined  the  recog- 

of  replevin  bail  in  this  case,  within  the  >■  of  such 

:  V  provision?. 

on  51,  while  trerr 
principal  by  an  '■'-       . 
says :  "For  althougn  a  person  cannot  ordinarily  sign  a  deed  for 
as  the  agent  of  another,  without  an  authority  given  to  him  i'  '••  '- 
;  yet  this  is  true  only  in  the  absence  of  the  principal ;  for 
'    il  is  present,  and  verbally  or  impliedly  authorizes  the  age;.: 
^  name  tn  the  deed,  it  becomes  the  deed  of  the  principal ;  and 

-es,  as  binding  upon  him  as  if 
:  it.  The  distinction  may  seem 
•  and  renncd ;  but  it  proceeds  upon  the  ground  that,  where  the 
icipal  is  present,  the  act  of  signing  and  sealing  is  to  be  deemed 
personal  act,  as  much  as  if  he  held  the  pen,  and  another  person 
led  his  hand  and  pressed  it  on  the  seal." 

ilie  rule  thus  announced  by  Story  is  founded  in  justice,  and  well 
-■<{  hf  authority,  and  must  be  held  to  be  decisive  again^^ 
it  upon  the  point  urged  by  him  as  above.  Qui  facit  per  > 
il-  per  se,  is  a  familiar  maxim  of  the  law,  and  where  one  p 
ng  present,  causes  another  to  sign  his  name  to  a  written  ii..  : 
it,  the  signature  is,  in  legal  contemplation,  in  his  handwriting. 
■Uf,  .^,-...f  and  only  remaining  point  urged  by  the  appellant  i--    '''^  ■' 
replevin  bail  set  out  in  the  special  finding  is  inopc 
rficient  form  to  bring  it  within  the  substantial  ] 
■^tp :  hut  that  objection  is  fully  answered  by  thr 
V.  Cockrum,  64  Ind.  229.  in 
ice  of  replevin  bail  v/as  held 
nd  binding  upon  tnose  who  signed  i* 
udgment  is  aflfirpT  '■  ^  iM.  «.■,<;  •> 


unable 

f; 

or  other 

cause 

ill  f--- 

>;■ 

squired  bv  ]n\v 

'-  it  is  not  • 

ce.     The 

.ICl   Oi 

anothc: 

•t.   29 

Pa. 

St. 

I 


S6 


T.  Kriiff.  ns  sheriff  of  M-" 


.  ..:e  a 
nay  be 
ntjijomer 
rquire  ( 
illiam  J. 
■Id  sitic 
,.'rient  fo- 
ag  had 
nd  was  ; 

n!,1     ,1.- 


^s  threatening  to 

tore  the 

.  :     '.njoined 

and  for  oMier  relief. 

I  i:       r  ndnicr  of 


the  coun 


Mii'L,  in 

he  26th 

■  .riff 

of 

'.67, 

aion 

aid  real 

...     .  .joined  by 

was  rendered,  to  wit, 

j.  Krug-,  Edwin 

■'  the  clerk  of  the 

ne  James  B. 

'  ">v'er  margin 

t:  "We, 

ff'r  stay 

'Hie. 


'■aid 

md 

.  \ii\ 

iien  and 

.  '^  words, 

■  and  approved  by  me,  J. 

•-  i.x\v  joi\i.  ■  That  the  plaintiff  did  not 

replevin  bail  otherwise  than  as  above 

1  not  write  his  name  and  was  accus- 

en  he  signed  his  name  himself. 

court  held  that  the  entry  of  replevin 

.  '  against  and  binding  upon  the  plaintiff, 

d  to  the  relief  prayed  for  in  his  complaint. 

^''v  plaintiff  excepted,  but,  nothwithstand- 

ent  thereon  in  favor  of  the  defendants. 

're  is,  did  the  - -   ■'-  cov.- 

■und  by  it? 
,^.  b.  1876,  p.  20^ 
r  the  s*:ay  of  ex 
'   mediate" 


srai 


\  of  statute-  ' 

^.iall  include  pi-  .....^.  i;Li._: 
iig  words  and  letters.    But  in 


EXECUTION    OF   SEALED    INSTRUMENTS.  87 

all  cases  where  the  written  signature  of  any  person  is  required,  the 
proper  handwriting  of  such  person  or  his  mark  shall  be  intended." 
2  R.  S.  1876,  p.  315,  §  I,  clause  9. 

The  first  point  urged  by  the  appellant,  considered  in  its  natural 
order  is,  that,  applying  these  provisions  of  the  statutes  to  the  facts 
as  found  by  the  court,  he  cannot  be  held  to  have  signed  the  recog- 
nizance of  replevin  bail  in  this  case,  within  the  meaning  of  such 
statutory  provisions. 

Story  on  Agency,  page  57,  section  51,  while  treating  upon  the  gen- 
eral power  of  an  agent  to  bind  his  principal  by  an  instrument  in  writ- 
ing, says :  "For  although  a  person  cannot  ordinarily  sign  a  deed  for 
and  as  the  agent  of  another,  without  an  authority  given  to  him  under 
seal ;  yet  this  is  true  only  in  the  absence  of  the  principal ;  for  if  the 
principal  is  present,  and  verbally  or  impliedly  authorizes  the  agent 
to  fix  his  name  to  the  deed,  it  becomes  the  deed  of  the  principal ;  and 
it  is  deemed,  to  all  intents  and  purposes,  as  binding  upon  him  as  if 
he  had  personally  sealed  and  executed  it.  The  distinction  may  seem 
nice  and  refined ;  but  it  proceeds  upon  the  ground  that,  where  the 
principal  is  present,  the  act  of  signing  and  sealing  is  to  be  deemed 
his  personal  act,  as  much  as  if  he  held  the  pen,  and  another  person 
guided  his  hand  and  pressed  it  on  the  seal." 

The  rule  thus  announced  by  Story  is  founded  in  justice,  and  well 
sustained  by  authority,  and  must  be  held  to  be  decisive  against  the 
appellant  upon  the  point  urged  by  him  as  above.  Qui  facit  per  aliuui, 
facit  per  sc,  is  a  familiar  maxim  of  the  law,  and  where  one  person, 
being  present,  causes  another  to  sign  his  name  to  a  written  instru- 
ment, the  signature  is,  in  legal  contemplation,  in  his  handwriting. 

The  next  and  only  remaining  point  urged  by  the  appellant  is,  that 
the  entry  of  replevin  bail  set  out  in  the  special  finding  is  inoperative, 
for  want  of  sufficient  form  to  bring  it  within  the  substantial  provi- 
sions of  the  statute;  but  that  objection  is  fully  answered  by  the  case 
of  The  Vincennes  National  Bank  v.  Cockrum,  64  Ind.  229,  in  which 
a  much  more  informal  recognizance  of  replevin  bail  was  held  to  be 
valid  and  binding  upon  those  who  signed  it. 

The  judgment  is  affirmed  with  costs. ^ 

^Accord:    Hudson  v.  Revett,  S  Bing.  368. 

"If  one  having  testamentary  capacity  is  unable  from  palsy  or  other  cause 
to  steady  his  hand  so  as  to  make  to  his  will  the  signature  required  by  law, 
another  person  may  hold  his  hand  and  aid  him  in  so  doing;  and  it  is  not  neces- 
sary to  prove  any  request  from  the  testator  for  such  assistance.  The  act  is 
his  own  with  the  assistance  of  another,  and  not  the  act  of  another  under  au- 
thority from  him."    Per  Curiam,  Vandruff  v.  Rinehart,  29  Pa.  St.  232,  234. 


88  CREATION. 

Section  2. — Express  Authority. 

PEABODY  V.  HOARD. 
1867.     Supreme  Court  of  Illinois.     46  111.  242. 

Walker,  J. — This  was  a  bill  in  chancery,  filed  by  Francis  B.  Pea- 
body,  in  the  superior  court  of  Chicago,  against  Samuel  Hoard  and 
Henry  F.  Balch,  to  enjoin  Hoard  from  prosecuting  an  action  of 
ejectment  which  he  had  commenced  in  that  court  against  the  tenant 
of  appellant,  for  the  recovery  of  eighty  acres  of  land.  It  appears 
from  the  record  that  Henry  F.  Balch,  prior  to  the  24th  day  of 
August,  1853,  owned  the  land  in  controversy.  That  he  being  in  im- 
mediate need  of  money,  and  residing  in  Salem,  Massachusetts,  on  the 
14th  day  of  March  (the  year  is  not  given),  wrote  a  letter  to  his 
brother,  Moses  P.  Balch,  in  which  he  authorized  him  to  sell  the  land. 
He  directed  him  to  sell  it,  if  he  could  get  $225  for  the  prairie,  and 
$25  for  the  timber  land ;  and  all  over  that  price  he  authorized  him  to 
retain  'for  his  trouble.  He  says :  "I  shall  want  all  the  money  I  can 
scrape  together  to  pay  my  way  through."  From  other  evidence  it 
seems  that  this  letter  was  written  in  March,  1851. 

It  further  appears  that  Moses  owned  an  adjoining  eighty-acre  tract 
which  he  had  bought  of  one  Flail,  and  was  paying  him  five  per  cent, 
per  month  as  interest  on  $300  of  the  purchase  money.  He  was  anxious 
to  get  rid  of  this  debt,  and  offered  to  sell  his  own  eighty-acre  tract 
to  one  Smith,  but  he  would  not  purchase  without  he  could  at  the  same 
time  obtain  the  eighty  acres  belonging  to  Henry  F.  Balch.  A  sale 
was,  however,  finally  made  by  Moses  to  Smith  of  both  eighties,  and 
it  was  so  arranged  that  Smith  paid  Hall  the  $300  debt,  with  interest 
already  accrued.  This  payment  was  thus  made,  and  the  $300  incum- 
brance to  Hall  removed  from  Moses'  eighty  acres,  and  the  balance 
of  $750  was  paid  to  Moses  in  jewelry.  Flail  conveyed  the  eighty  acres 
belonging  to  Moses,  for  which  he  held  the  legal  title,  to  Smith,  and 
Moses,  as  the  attorney  in  fact  of  Henry  F.  Balch,  conveyed  to  him 
Henry's  eighty  acres. 

It  appears  that  Moses  lived  upon  his  and  that  Henry's  was  unim- 
proved land ;  but  it  appears  that  Smith  removed  to  the  eighty  pur- 
chased of  Moses,  and  subsequently  fenced  the  tract  which  had  be- 
longed to  Henry.  In  March,  i860,  appellant  purchased  and  paid 
Henry  F.  Balch  for  the  land,  with  no  other  or  further  notice  than 
such  as  arises  from  adverse  possession.  In  June,  i860.  Smith  hav- 
ing previously  died,  appellant  purchased  the  land  at  a  sale  made  by 
Smith's  administrator,  and  paid  $96  as  the  consideration.  Probst 
was  a  tenant,  in  possession  under  the  heirs  of  Smith  ;  he  subsequently 
attorned  to  both  appellee  and  appellant,  but  appellee  afterward 
brought  the  action  of  ejectment,  to  restrain  the  prosecution  of  which 
the  bill  was  filed. 


ir.XPRESS  AtJTHORITY.  89 

...ice  discloses  the  fact  that  r^'niiri,  l)€fore  purchasing,  ad- 
th  aa  attorney,  who  informc  lat  Moses  could  not 

valid  conveyance  under  t^  of  attorney, 

.-)rined  him  that  if  he  purch;  run  the  risk 

Uing  Henry  F.  Balch  1-  '   >  adv.ice, 

from  Moses  a  bond,  in  ■'^cure  a 

i  fropi  Henry  for  the  land,  convej'iiig  il  to  Si 
;  and  fifteen  months,"  and  in  case  of  f:,i!ure  he 
:  ay  Smith  $800,  as  liquidated  dam:!  upon  his  pa 

a.  Smith  was  to  quitclr'-"^  ■■  ■  '-'  ir^.c-c  n 

ed  the  deed  and  did  noi 

il:  also  appears  that  Smii;;  iiaii  >:'5  j'se 

ance  in  watches  and  jewcJ.  '  upon   1:  the 

•  ration  is  raised  whether  appcUant  is  entitled  to  the  ;  ight 

his  bill.  ■  "       ■ 

It  is  undoubtedly  true  that  the  letter  of  Henry  F.  Balch  to  his 
other  Moses  gave  the  latter  authority  to  contract  for  the  sale  of 
land.  To  this  effect  are  the  cases  of  Doty  v.  Wilder,  15  111.  407, 
■   '  \3on  v.  Dodge,  17  111.  433.    It  was  there  held  that  when  a 
parol  authorizes  another  to  make  a  contract  for  the  sale  of 
.  ;.  ;i  the  authority  is  pursued,  and  a  written  agreement  is  entered 
^  hv  the  agent,  a  court  of  equity  will  enforce  the  performance  of 
:nent,  and  that  such  a  case  is  not  within  the  statute  of  frauds. 
as  held  in  the  latter  of  these  cases  that  a  power  to  convey 
I  be  in  writing,  and  of  equal  dignity  with  the  deed  to  be  exe- 
i.iy  the  letter  Moses  was  authorized  to  sell  at  the  price  speci- 
but  while  the  authority  was  in  writing  it  was  not  under  seal,  and 
ntly  the  deed  made  b    '  ■;  attorney  for  Henry,  was  in- 

to convey  the  title, 

however,  the  whole  oi  the  It-tter  is  considered 
ry  contemplated  a  speedy  sale,  and  only  intende- 
:er  to  sell  in  a  short  time  from  its  date.   He  die  cm- 

ale  years  afterward,  or  even  many  months.  This    ^  .  pj.urent 
fact  that  he  says  that  he  "wants  all  the  money  he  can  scrape 
>ay  his  way  through."   He  speaks  in  the  present  tense. 
;lien  wants  it:  not  that  he  shall  want  it  at  some  future 
.ever,   ap[iears  vb>at  the  sale  was  not  made  until  two 
months  after  he  received  the  authority. 

id  at  his  peril  to  see  the  authority  of  the  agent  b' 
ind  in  this  case  did  see  it,  and  not  only  -  ^    '    ' 
\  it,  and  was  informed  that  it  was  in.<=' 
e  would  have  to  run  the  risk  of  £;•'■' 
He  seems  to  have  concurred  in  11 
1  the  ajr 
the  p'v 


88 


CRb 


Sec+i'iri  ii. — Express  Authority. 


PEAB' 


SUPREM' 


supenoi 
;rilch,  t(-^ 
:iich  he  ; 


of  Mar 


46  III.  242. 

y,  filed  by  Francis.  B.  Pea- 

.,  against  Samuel  Jloard  and 

oni  prosecuting  an  action  of 

;  that  court  against  the  tenant 

■  of  land.    It  appear'- 

to  the  24th  day  o'> 

roveris).    That  he  being  in  ini- 

t  Salem,  ivlassachusetts,  on  the 

IS  not  given),  wrote  a  letter  to  hi^ 

't  he  authorized  him  to  sell  the  land. 

i)uld  get  »$225  for  the  prairie,  and 

uithorized  him  to 

^ne  money  I  can 
r  evidence  it 


anxious 


;   Ij  ilviui")    i'.  rialLii.    ■-\  sale 

io  Smith  of  both  eighties,  and 

.  paid  liall  the  $300  debt,  with  interest 

:    '    .         nt  was  thus  made,  and  the  $300  incum- 

•moved  from  Moses'  eighty  acres,  and  the  balance 

'  •  ^Toses  in  jewelry.  Hall  conveyed  the  eighty  acres 

tor  which  he  held  the  legal  title,  to  Smith,  and 

'     '■- ^^     ''  '^      -     '^    ^'ilch,  conveyed  to  him 


was 
attor. 
broi;     ' 
the  bill 


■cs  iive;!  upon  his  and  that  Henry's  was  unirn- 

ipear?  that  Smith  removed  to  the  eighty  pur- 

icntly  fenced  the  tract  which  had  be- 


..  _  :,   i860,   appellant  purch 
he  land,  with  no  other  or  ft: 
■■  -^rse  possession.    In  June, 
ilant  purchased  the  land  . 
'lid  $9^)  as  the  ^ 
It  the  heirs  of  ? 
•appellant,   br. 
'  ■■  restrain  the 


and  paid 
•CO  than 


Icrward 
•f  which 


EXPRESS   AUTPIORITY.  89 

The  evidence  discloses  the  fact  that  Smith,  before  purchasing,  ad- 
vised with  aa  attorney,  who  informed  him  that  Moses  could  not 
make  a  valid  conveyance  under  the  letter  as  a  power  of  attorney, 
and  informed  him  that  if  he  purchased,  he  would  have  to  run  the  risk 
of  getting  Henry  F.  Balch  to  ratify  it.  He,  acting  on  this  advice, 
took  from  Moses  a  bond,  in  which  he  bound  himself  to  procure  a 
deed  from  Henry  for  the  land,  conveying  it  to  Smith,  within  "one 
year  and  fifteen  months,"  and  in  case  of  failure  he  was  to  be  liable 
to  pay  Smith  $800,  as  liquidated  damages,  and  upon  his  paying  that 
sum.  Smith  was  to  quitclaim  the  land  to  Henry.  Moses  never  pro- 
cured the  deed  and  did  not  pay  the  liquidated  damages. 

It  also  appears  that  Smith  paid  to  Hall  $500,  and  to  Moses  the 
balance  in  watches  and  jewelry.  And  upon  this  state  of  facts  the 
question  is  raised  whether  appellant  is  entitled  to  the  relief  sought 
by  his  bill. 

It  is  undoubtedly  true  that  the  letter  of  Henry  F.  Balch  to  his 
brother  Moses  gave  the  latter  authority  to  contract  for  the  sale  of 
the  land.  To  this  effect  are  the  cases  of  Doty  v.  Wilder,  15  111.  407, 
and  Johnson  v.  Dodge,  17  111.  433.  It  was  there  held  that  when  a 
party  by  parol  authorizes  another  to  make  a  contract  for  the  sale  of 
land,  if  the  authority  is  pursued,  and  a  written  agreement  is  entered 
into  by  the  agent,  a  court  of  equity  will  enforce  the  performance  of 
the  agreement,  and  that  such  a  case  is  not  within  the  statute  of  frauds. 
But  it  was  held  in  the  latter  of  these  cases  that  a  power  to  convey 
land  must  be  in  writing,  and  of  equal  dignity  with  the  deed  to  be  exe- 
cuted. By  the  letter  Moses  was  authorized  to  sell  at  the  price  speci- 
fied, but  while  the  authority  was  in  writing  it  was  not  under  seal,  and 
consequently  the  deed  made  by  him,  as  attorney  for  Henry,  was  in- 
operative to  convey  the  title. 

When,  however,  the  whole  of  the  letter  is  considered  it  is  apparent 
that  Henry  contemplated  a  speedy  sale,  and  only  intended  to  empower 
his  brother  to  sell  in  a  short  time  from  its  date.  He  did  not  contem- 
plate a  sale  years  afterward,  or  even  many  months.  This  is  apparent 
from  the  fact  that  he  says  that  he  "wants  all  the  money  he  can  scrape 
together  to  pay  his  way  through."  He  speaks  in  the  present  tense. 
He  says  he  then  wants  it ;  not  that  he  shall  want  it  at  some  future 
time.  It,  however,  appears  that  the  sale  was  not  made  until  two 
years  and  five  months  after  he  received  the  authority. 

Smith  was  bound  at  his  peril  to  see  the  authority  of  the  agent  be- 
fore he  purchased,  and  in  this  case  did  see  it,  and  not  only  so,  but 
took  legal  advice  upon  it,  and  was  informed  that  it  was  insufficient ; 
that  if  he  purchased  he  would  have  to  run  the  risk  of  getting  it  con- 
firmed by  the  owner.  He  seems  to  have  concurred  in  the  opinion  of 
the  attorney,  inasmuch  as  he  took  from  the  agent  a  bond  to  indem- 
nify him  against  loss  growing  out  of  the  purchase.  He  could  see 
and  must  have  known  that  the  letter  required  a  speedy  sale,  and  yet 
he  purchased  almost  two  years  and  a  half  afterward.    The  avenues 


90  CREATION. 

of  information  were  open  to  him  and  he  availed  himself  of  them, 
as  he  was  bound  to  do  in  dealing  with  an  agent.  He  had  no  pretense 
even  that  he  was  imposed  upon,  as  he  was  informed  that  he  would 
acquire  no  title  by  the  purchase.  Yet,  knowing  these  facts,  he  chose 
to  risk  the  chances  of  getting  the  sale  confirmed ;  or,  failing  in  that, 
in  obtaining  indemnity  from  the  agent.  Failing  to  get  a  ratification, 
he  only  had  the  right  to  look  to  his  bond  for  indemnity. 

In  this  case  the  letter  only  authorized  a  sale  for  money.  It  speaks 
of  so  many  dollars  as  the  price  for  which  the  sale  could  be  made,  and 
he  says  he  "wants  to  scrape  together  all  the  money  he  can  to  pay 
his  way."  There  is  no  pretense  that  either  Smith  or  Moses  P.  Balch 
could  have  understood  that  the  sale  could  be  made  for  watches.  Yet 
it  seems  it  was.  It  is  true  that  $500  was  paid  in  money,  yet  Moses 
sold  his  improved  tract  with  the  other,  and  appropriated  the  $500  to 
pay  the  balance  of  the  purchase-money  he  owed  on  his  tract,  which 
Smith  paid  to  Hall  in  person.  Without  a  payment  of  that  amount 
he  could  not  obtain  a  release  from  Hall.  It  would  therefore  seem  that 
this  land  was  paid  for  in  watches,  and  such  a  payment  was  not  au- 
thorized by  the  letter. 

Smith  having  acquired  no  title  by  his  deed,  nor  any  right  to  a  spe- 
cific performance  of  the  unauthorized  act  of  Moses  Balch,  his  heirs 
and  assigns  could  succeed  to  no  better  title  than  he  held.  The  pur- 
chaser at  the  administrator's  sale  had  the  means  of  learning  the  na- 
ture and  extent  of  Smith's  claim  ;  and  in  a  matter  of  such  importance 
the  presumption  would  be  that  he  became  fully  informed  before  he 
purchased.  He  then  cannot  urge  that  any  fraud  was  perpetrated 
upon  him.  He  no  doubt  examined  the  title  and  learned  its  character 
before  he  purchased.  If  so,  he  ran  all  risks  of  losing  the  land,  and 
he  is  without  any  equitable  remedy.  The  court  below,  therefore,  acted 
properly  in  dismissing  complainant's  bill  for  the  want  of  equity,  and 
the  decree  must  be  affirmed. 

Decree  affirmed.^ 


STEWART  V.  PICKERING  et  al. 

1887.     Supreme  Court  of  Iowa.     73  la.  652. 

Action  to  recover  money  received  by  the  defendants  for  lands  sold 
by  them  for  the  plaintiff,  and  which  they  refused  to  pay  over,  be- 
cause, as  they  claim,  they  sold  certain  other  lands  as  the  plaintiff's 

^  "It  is  not  claimed  that  an  agent  for  the  payment  of  taxes  cannot  be  ap- 
pointed by  parol.  A  request  by  letter  or  orally  would  be  sufficient  to  authorize 
the  person  requested  to  act,  and  a  payment  made  pursuant  to  such  request 
would  be  a  payment  by  the  person  making  the  request."  Scholfield,  C.  J.,  in 
Paris  V.  Lewis,  85  111.  597,  599. 

In  Patterson  v.  Keystone  Mining  Co.,  30  Cal.  360,  it  was  held  that  a  verbal 
appointment  of  an  agent  to  execute  a  bill  of  sale  of  a  mining  claim  was  valid. 


rjTTTO: 


tion  for  inakin-  the  last-named  sales.    Trial  to  th 
^ilt,  and  defend?. 

. — :The  plaintiff  .  vania,  and  the  defend- 

ants ia  .'i  nii.   The  latter  are  icai  e.-M^i 
son  in  Frdis  City,  in  the  forn-;'''-    'a'   . 

the  plaintifll",  a  letter,  which  i  have  c; 

of  the  lands  in  this  counts-  '  -••^     "^ 

art?    If  so,  are  they  foi' 
.;,  ''    ,  ^    '       '    '  a  custoi 
•  etc.   T' 
'  >se  >oii  ci.  price-list  < 
'ilier  is  the  widow  of  i 
devisee  by  will,  which  was  t  ur  com, 

r-.:.v-'ir.-r   rif   rr ' -   ''rifher  and   . ,  'i^'<"  of  :...    --..  -..-::. 

clear  and  good.  od  to  the  letter 

■  ^  .      V,  V :  -;  n  land  for  sale,  Wmi-t -  ..i-a  county,  Iowa.'' 

!   .  a  list  of  the  land,  with  the  prices  at  which  it  is  for 

lo  D.  Stewart,  Falls  City,  Pa.,  or  1450  2d  St.,  Washii 
1  rerms  one  fourth  down,  balan-^e  in  four  equal  annual 

ments,  with  five  |.>er  cent,  interest,  or  :  er  for  $4.75  per  acre" 

Tilt'  amount  in  controversy  being  ■  $100  we  are  asked  to 

■  le  whether  the  foregoing  cor  ice,  on  the  face  there- 
tains  any  authority  to  sell  the    ui;.^    »vhich  would  bind  the 

.  providing  the  sale  was  made  on  the  terms  therein  men- 

We  think  it  does  not.    T  aply  to  an  offer,  wdth 

!is  to  apply  to  the  person  1.  There  is  no  piithr^r- 

i!  the  d;  '  to  sell  the  lands  at  the  prices  s 

;    ■■■         anied.    i  dthority  was  conferred,  it  was  a  '•  jf 

one  until  revoked,  and  this  we  do  not  believe  was  contemplated.   At 

ni, -.f    iUq  otfer  to  the  defendant  was:    "You  may  sell  the  lands  on 

.-s  named,  subject  to  my  approval."    Tlie  latter  must  be  so 

'    no  authority  to  sell  was  given.    It  is  due  '■"  *'■ 

:.  she  claims  to  have  sold  the  lands  throu;^ 
I   Lv:foie  she  ^ified  of  the  sale  made  by  the  dv: 


CHEZ  'RFTGHB.a;^    .' 

i>  REME  Court  •-  Wash.  680. 

it,  King  coui 


■    ',   'I  then:, 

>  pretense 

he  would 

•^     "its,  he  chose 

"  :  that, 

.  ation. 

money.   It  speak- 

I  he  sale  could  be  made,  and 

;  the  money  he  can  to  pay 

r  Smith  or  IMoses  P.  Balch 

' -'  i^iade  for  watches.  Yet 

-1  in  money,  yet  Moses 

'  ed  the  $500  to 

:s  tract,  which 

'  that  amount 

fore  seem  that 

it  was  not  ai. 

i'  to  a  sp' 
'.  his  heir 
The  pu 
■.'»  na- 
.  'tance 
re  he 
,        't  rated 
1  the  ti  1  i  its  character 

'^   '■'  r'         .    IV-,. :;^  the  land,  and 
L  below,  therefore,  acted 
u.r;ani^  i-ni  lor  the  want  of  equity,  and 


/o 


<<i  defendants  for  lands  :>o\^ 
•  refused  to  pay  over,  be- 
lier  lands  as  the  plaintiff's 


request,'  <!,  C.  J.,  in 

\erbal 
valid. 


EXPRESS   AUTHORITY.  9I 

agent,  and  were  therefore  entitled  to  retain  the  money  as  compensa- 
tion for  making  the  last-named  sales.  Trial  to  the  court,  judgment 
for  the  plaintiff,  and  defendants  appeal. 

Seevers,  J. — The  plaintiff  resides  in  Pennsylvania,  and  the  defend- 
ants in  Iowa.  The  latter  are  real  estate  brokers,  and  wrote  to  a  per- 
son in  Falls  City,  in  the  former  state,  who  was  authorized  to  act  for 
the  plaintiff,  a  letter,  which  was  as  follows :  "Do  you  have  charge 
of  the  lands  in  this  county  belonging  to  the  estate  of  Hon.  A.  Stew- 
art? If  so,  are  they  for  sale?  *  '^  *  If  the  title  is  all  right,  we 
can  possibly  find  a  customer  for  the  list  this  year.  Let  us  hear  from 
you  as  to  price,"  etc.  The  reply  thereto  is  as  follows :  'T  herewith 
inclose  you  a  price-list  of  our  land  in  your  county.  *  *  *  My 
mother  is  the  widow  of  Hon.  A.  Stewart,  deceased,  and  is  the  sole 
devisee  by  will,  which  was  recorded  in  your  county  in  1879.  I  am 
executor  of  my  father  and  attorne}^  of  fact  of  my  mother.  The 
titles  are  all  strictly  clear  and  good."  Attached  to  the  letter  is  the 
following:  "Western  land  for  sale,  Winnebago  county,  Iowa."  Here 
follows  a  list  of  the  land,  with  the  prices  at  which  it  is  for  sale. 
"Apply  to  D.  Stewart,  Falls  City,  Pa.,  or  1450  2d  St.,  Washington, 
D.  C.  Terms  one-fourth  down,  balance  in  four  equal  annual  pay- 
ments, with  five  per  cent,  interest,  or  all  together  for  $4.75  per  acre." 

The  amount  in  controversy  being  less  than  $100  we  are  asked  to 
determine  whether  the  foregoing  correspondence,  on  the  face  there- 
of, contains  any  authority  to  sell  the  lands  which  would  bind  the 
plaintiff,  providing  the  sale  was  made  on  the  terms  therein  men- 
tioned. We  think  it  does  not.  It  amounts  simply  to  an  offer,  w'ith' 
directions  to  apply  to  the  person  therein  named.  There  is  no  author- 
ity given  the  defendants  to  sell  the  lands  at  the  prices  and  on  the 
terms  named.  If  such  authority  was  conferred,  it  was  a  continuing 
one  until  revoked,  and  this  we  do  not  believe  was  contemplated.  At 
most,  the  offer  to  the  defendant  was :  "You  may  sell  the  lands  on 
the  terms  named,  subject  to  my  approval."  Tlie  latter  must  be  so 
understood,  because  no  authority  to  sell  was  given.  It  is  due  to  the 
plaintiff  to  state  that  she  claims  to  have  sold  the  lands  through  an- 
other broker  before  she  was  notified  of  the  sale  made  by  the  de- 
fendants. 

Affirmed.^ 


CHEZUM  V.  KREIGHBAUM. 

1892.     Supreme  Court  of  Washington.    4  Wash.  680. 

Appeal  from  superior  court,  King  county. 

HoYT,  J. — Respondent  executed  and  delivered  to  appellant  a  con- 
tract in  writing  in  the  words  and  figures  as  follows,  to  wit : 

^  In  Howe  Machine  Company  v.  Clark,  15  Kan.  373,  it  was  held  that  a  parol 
authority  maj^  be  proved  by  the  testimony  of  the  party  claiming  to  be  agent. 


92  CREATION, 

"November  29,  1889.  Slaughter.  This  is  to  certify  that  I  have  this 
day  given  F.  O.  Chezum  the  exclusive  sale  of  may  lande  for  60  days 
— E  1-2  of  SE  1-4  an  South  W  1-4  of  SE  1-4  Sec.  17  town  22  No.  r. 
4  E.  to  be  solde  for  $6,000,  tow  $2,000,  chash  $2,000.  Interest  semi- 
annually one  yeare  and  2,000  two  years,  and  said  Chezum  must  git 
his  comition  above  that.  I  hereby  reserve  10  acres  to  be  selected 
by  me  of  the  forty  next  the  beche.  N.  Kreighbaum." 

And  the  only  question  presented  for  our  consideration  on  this  ap- 
peal is  as  to  the  proper  construction  of  said  contract.  Appellant  con- 
tends that  by  virtue  thereof  he  became  entitled  to  an  option  which 
authorized  him  at  any  time  within  sixty  days  after  the  execution  of 
said  contract  to  demand  and  receive  from  the  respondent  a  deed  to 
himself,  or  any  person  named  by  him,  of  the  premises  described 
therein,  on  payment  being  made  and  security  given  as  therein  pro- 
vided. He  further  contends  that  the  respondent  had  no  interest  in 
any  negotiations  as  between  him  and  any  other  parties  relating  to  said 
premises.  On  the  other  hand,  it  is  contended  by  respondent  that  by 
said  instrument  in  writing  he  simply  constituted  appellant  his  agent 
to  make  sale  of  the  property  in  question  upon  the  terms  therein 
stated,  and  that  in  any  negotiation  which  he  had  in  relation  thereto 
he  acted  simply  as  the  agent  of  the  respondent,  and  was  entitled,  out 
of  any  moneys  he  might  realize  over  the  sum  of  $6,000,  provided 
for  in  the  contract,  to  his  reasonable  commission,  as  full  compensa- 
tion for  his  services  in  the  matter. 

If  the  contract  is  to  be  construed  as  contended  for  by  respondent, 
then  it  is  clear  that  the  appellant,  under  the  pleadings  in  this  action 
and  the  facts  established  at  the  trial,  is  not  entitled  to  recover,  and 
the  action  of  the  court  below  in  sustaining  the  motion  of  the  respond- 
ent for  a  judgment  of  nonsuit  must  be  sustained.  If,  however,  the 
contract  is  to  be  construed  as  contended  for  by  appellant,  it  will  be 
necessary  for  us  to  enter  upon  a  consideration  of  other  questions 
presented  by  the  record,  which  it  is  claimed  on  the  part  of  the  re- 
spondent would  establish  the  nullity  of  said  contract,  even  although 
it  be  construed  as  contended  for  by  appellant.  There  are  no  words 
used  in  said  contract  which  in  terms  purport  to  give  to  the  appel- 
lant any  option  to  purchase  the  property  therein  described,  nor  are 
we  able  to  gather  from  the  whole  instrument  any  such  intent.  On 
the  other  hand,  there  are  apt  words  used  to  constitute  the  appellant 
the  agent  of  the  respondent  in  dealing  with  said  property.  He  is  to 
have  "the  exclusive  sale  of  my  lande  for  60  days."  These  are  the  only 
words  which  tend  in  any  manner  to  show  the  nature  of  the  appel- 
lant's interest  in  said  contract.  The  remainder  thereof  relates  entirely 
to  the  conditions  upon  which,  as  such  agent,  respondent  authorizes 
him  to  deal  wath  the  property.  Construing  the  whole  instrument 
together,  and  giving  to  each  word  therein  used  its  full  and  ordinary 
interpretation,  it  simply  confers  upon  the  appellant  the  exclusive 
agency  for  the  sale  of  the  said  property  for  the  period  of  sixty  days 


at  a  price  not  less  th^n  $6,000,  and  expression  out  of  tl. 

iich  provides  that  ins  commission,  if  any  he 
!    out  of  the  moneys  realized  upon  such  sale 
over  and  aoove  said  sum  of  $6,000.   It  is  nothing  more  than  the  or- 
dinary contract  for  exchisive  agency  for  the  sale  of  property,  in 
which  the  price  for  which  it  is  to  be  sold  it  to  be  a  net  price.   That 
an  agent  authorized  to  sell  property  at  a  sum  not  less  than  a  certain 
amount,  which  is  to  be  net  to  the  seller,  acts  in  making  the  sale 
thereunder  as  the  agent  of  the  seller,  and  not  as  the  principal,  seems 
to  us  clear.    The  owner  of  the  property  has  fixed  in  his  own  mind  the 
'■    ~t  sum  which  he  is  Mailing  to  take,  and  he,  therefore,  contracts 
h  the  agent  that  in  acting  for  him  he  must  have  that  sum  in 
V  as  ojming  net  to  him.    But  it  does  not  at  all  follow  that  the 
,T^    ■^'-■^[:^r^  under  such  power,  is  entitled  to  other  benefit  of  the 
n  which  he  mav  make  for  the  owner  than  that  thereby 
'■''  ■    ,  Under  the  contract  may  be  in- 

.  it  shows  upon  its  face  that  an 
I'eby,  Hiust  be  construed  as  above,  is  too  clear 
>n  of  authorities.    If  the  party  acts  simply  as 
iien  his  prmcipal  must  get  the  benefit  of  his  good  bargain ; 
V  fact  that  the  conditions  upon  which  he  is  forced  to  make 
1'  ,;  provide  for  a  net,  instead  of  a  gross  amount  to  the  owner, 

'  I  '  e  no  influence  in  changing  the  character  of  the  relation  estab- 
1  •  .y  the  contract.  Courts  are  inclined  to  construe  a  contract  ot 
•i  '1  to  be  that  of  agency,  rather  than  a  sii.  ^ 

'  •  •       vierson  acUng  thereunder;  and  howevt 
1  -•  the  owner  may  be,  yet  if  there  is  anything  in  conne. 

j'  Vipf  which  shows  an  intent  to  create  an  agency,  r:. 

■'  ■  le  of  the  property,  the  person  acting  thereund'' 

to  get  any  benefit  therefrom  other  than  sur'- 
be  awarded  to  him  bv  the  contract. 
'      •   V    case   of   Turr  -ael    (Tex.).    15    S.    W. 

Ill    ,  ■    '  language  of  the  T  will  ta!:c  f^-.^oc  net  to 

nthority  thereof  a  sale  was  made  f  $8,000. 

..;ed  on  the  part  of  the  per'  m  -^l!  .  iM  ,-.-,■-,.. 

It  he  was  entitled  to  the  $50 
■uch  the  owner  said  be  \\i  u. 
"^'  nd  adjudcred  that  the  5?c;oo  t 

of  the  ■    ■      ■      ' 

■^r  was  c 

ider  said  cuniract  liad  a 
'-"ivipiission  on  such  sai- 
;    iiit,  and,  ■  ;  decisive  of  the  que 

^^^-  •  ;in  construed  m''  '■ 

claiming  adver 


•er  29,  1889.  "lat  I  have  this 

""■.  ChezuT.  iaude  for  60  days 

[  -4  an  S  .  1 7  town  22  No.  r. 

00.   Interest  semi- 

, ;  ;  1  Chezum  must  git 

/n  above  10  acres  to  be  selected 

'  msideration  on  this  ap- 

i    ij  u.iv  <jntract.   Appellant  con- 

liat  by  \  •  'cd  to  an  option  which 

.•.aiii(7iized  I  clays  after  the  execution  of 

■  ::!  .    ntr:  ,     .11  the  respondent  a  deed  to 

iiy  him,  of  the  premises  described 
...^...,,,  ...  nn.l  security  given  as  therein  pro- 

vided.   He  !     :     'dent  had  no  interest  in 

any  negoti;  lui  ;imu  .  •  "   rries  relating  to  said 

premisrs.    '  ■!,  it  is  c  '  cspondent  that  by 

-'  liant  his  agent 

terms  therein 

•  <n  thereto 

..  titled,  out 

o."  ivided 

J     .  rnsa- 

■  :'.l(.ilt, 

action 

over,  and 

e  respond- 

iit  must  be  sustained.     If,  however,  the 

'.s  contended  for  by  appellant,  it  will  be 

pon  a  consideration  of  other  questions 

lich  it  is  claimed  on  the  part  of  the  re- 

'  nullity  of  said  contract,  even  although 

'  for  by  appellant.   There  are  no  words 

■  in  terms  purport  to  tnve  to  the  appel- 

property  therein  d,  nor  are 

.   :(■  instrument  :>i  i^cnt.    On 

used  to  •  appellant 

-ciiuig  with  :  L.  V.   He  is  to 

;ide  for  60  d;-  :^e  are  the  only 

•A  r  to  show  tiic  tKiii'.re  of  the  appel- 

la  .  .  he  reinaind'^r  thereof  relates  entirely 

to  ilif  iiondent  authorizes 

hini  !  whole  instrument 

tr  '-rem  used  its  full  and  ordinary 

'1   the  appellant  the  exclusive 
jr  the  period  of  sixty  days 


EXPRESS    AUTHORITY.  93 

at  a  price  not  less  than  $6,000,  and  the  only  expression  out  of  the 
ordinary  is  the  clause  which  provides  that  his  commission,  if  any  he 
is  to  have,  must  be  made  out  of  the  moneys  realized  upon  such  sale 
over  and  above  said  sum  of  $6,000.  It  is  nothing  more  than  the  or- 
dinary contract  for  exclusive  agency  for  the  sale  of  property,  in 
which  the  price  for  which  it  is  to  be  sold  it  to  be  a  net  price.  That 
an  agent  authorized  to  sell  property  at  a  sum  not  less  than  a  certain 
amount,  which  is  to  be  net  to  the  seller,  acts  in  making  the  sale 
thereunder  as  the  agent  of  the  seller,  and  not  as  the  principal,  seems 
to  us  clear.  The  owner  of  the  property  has  fixed  in  his  own  mind  the 
least  sum  which  he  is  walling  to  take,  and  he,  therefore,  contracts 
with  the  agent  that  in  acting  for  him  he  must  have  that  sum  in 
view  as  coming  net  to  him.  But  it  does  not  at  all  follow  that  the 
agent,  acting  under  such  power,  is  entitled  to  other  benefit  of  the 
good  bargain  which  he  may  make  for  the  owner  than  that  thereby 
his  commission  or  other  compensation  under  the  contract  may  be  in- 
creased. That  such  a  contract,  v^^hen  it  shows  upon  its  face  that  an 
agency  is  created  thereby,  must  be  construed  as  above,  is  too  clear 
to  require  the  citation  of  authorities.  If  the  party  acts  simply  as 
agent,  then  his  principal  must  get  the  benefit  of  his  good  bargain ; 
and  the  fact  that  the  conditions  upon  which  he  is  forced  to  make 
the  sale  provide  for  a  net,  instead  of  a  gross  amount  to  the  owner, 
can  have  no  influence  in  changing  the  character  of  the  relation  estab- 
lished by  the  contract.  Courts  are  inclined  to  construe  a  contract  of 
this  kind  to  be  that  of  agency,  rather  than  a  simple  option  on  the  part 
of  the  person  acting  thereunder ;  and  however  strong  the  language 
used  by  the  owner  may  be,  yet  if  there  is  anything  in  connection  with 
the  contract  which  shows  an  intent  to  create  an  agency,  rather  than 
to  make  a  sale  of  the  property,  the  person  acting  thereunder  will  not 
be  allowed  to  get  any  benefit  therefrom  other  than  such  compensa- 
tion as  may  be  awarded  to  him  by  the  contract. 

In  the  case  of  Turnley  v.  Michael  (Tex.),  15  S.  W.  Rep. 
912,  the  language  of  the  owner  was,  "I  will  take  $7,500  net  to  me." 
Under  the  authority  thereof  a  sale  was  made  for  the  sum  of  $8,000. 
It  was  claimed  on  the  part  of  the  person  who  acted  under  said  con- 
tract that  he  was  entitled  to  the  $500  received  over  and  above  the 
net  price  which  the  owner  said  he  would  take ;  but  the  court  held 
otherwise,  and  adjudged  that  the  $500  thus  received  was  as  much 
the  property  of  the  owner  of  the  land  as  any  part  of  the  $7.500 ; 
that  the  owner  was  entitled  to  receive  the  entire  $8,000.  and  that  the 
person  acting  under  said  contract  had  a  claim  against  such  ownei 
for  a  reasonable  commission  on  such  sale.  This  case  is  directly  in 
point,  and,  if  followed,  is  decisive  of  the  question  under  considera- 
tion. The  contract  therein  construed  much  better  warranted  the 
contention  of  the  person  claiming  adversely  to  such  decision  than 
does  the  one  here  authorize  the  contention  of  appellant.  There,  there 
was  a  definite  statement  that  the  owner  would  take  a  certain  net  sum, 


94  CREATION. 

and  it  was  not  coupled  with  any  condition  as  to  the  agent  being  au- 
thorized to  sell  for  that  sum.  Here  the  agent  is  directly  authorized 
to  sell  the  property,  and  a  certain  net  sum  is  fixed  upon  as  a  part  of 
the  condition  under  which  he  is  authorized  to  make  the  sale.  The 
cases  of  Kramer  v.  Winslow  (Pa.),  i8  Atl.  Rep.  923,  and  Blanchard 
V.  Jones,  loi  Ind.  542,  though  not  so  directly  in  point  as  the  one 
above  cited,  tend  strongly  to  establish  the  doctrine  contended  for  by 
respondent. 

On  the  other  side,  there  has  not  been  a  single  case  called  to  our 
attention  which  seems  to  us  in  point  upon  the  precise  question  which 
we  are  here  called  upon  to  decide.  In  our  opinion,  the  appellant, 
when  acting  under  the  power  conferred  by  said  written  instrument, 
acted  not  for  himself  as  principal,  but  simply  as  the  agent  of  the 
respondent,  and,  such  being  the  case,  as  we  have  seen,  he  could  not, 
under  the  circumstances  disclosed,  recover  any  compensation. 

The  judgment  of  the  court  below  must  be  affirmed. 

Anders,  C.  J.,  and  Scott  and  Stiles,  JJ.,  concur. 

Dunbar,  J. — I  dissent.  I  do  not  think  that  any  of  the  cases  cited 
by  respondent  are  in  point.  Here  are  two  persons  legally  competent 
to  contract,  and  the  contract  is  one  they  had  a  right  to  make.  If  the 
respondent  had  seen  fit  to  do  so,  he  might  have  contracted  that  he 
would  pay  $10,000,  or  any  sum  to  sell  his  land  for  the  sum  of  $6,000, 
and  the  law  would  enforce  the  payment  of  the  price  agreed  to  be 
paid  if  appellant  had  sold  the  land.  The  law  will  leave  the  parties 
to  make  their  own  contracts,  and,  after  they  are  made,  it  will  en- 
force them.  This  is  not  so  much  a  question  of  agency  as  a  question 
of  employment.  Nor  is  it  true  that,  as  between  the  contracting  par- 
ties, the  sale  is  made  for  the  benefit  of  the  landowner.  The  sale,  if 
made,  is  made  for  the  mutual  benefit  of  both.  Tliis  is  not  a  written 
contract  for  the  sale  of  land  where  the  agent  gets  a  commission  on 
the  amount  of  money  obtained.  The  owner  here  has  seen  fit  to  make 
a  contract  with  special  provisions  in  his  own  interest.  He  said,  in 
substance,  to  the  agent,  "If  you  will  sell  this  land  within  sixty  days, 
you  can  have  for  your  services  all  you  can  get  for  it  over  six  thou- 
sand dollars,  be  that  much  or  little ;"  and  he  should  be  compelled  to 
do  what  he  agreed  to  do.  This  employment  was  taken  on  the  doc- 
trine of  chances.  No  matter  how  much  labor  or  money  might  have 
been  expended  by  the  appellant  in  an  effort  to  sell  the  land,  if  he 
had  failed  to  make  the  sale  he  could  have  recovered  nothing.  Re- 
spondent had  protected  himself  by  his  contract,  and  he  ought  not  to 
complain  if  the  chances  turned  to  the  benefit  of  the  appellant.^ 

^  See  Robinson  v.  Easton,  Eldridge  &  Co.,  93  Cal.  80. 


IMPLIED    • 

Section  3. — Implied  Authority. 

GRAVES  V.  HORTON 

1887.     Supreme  Court  OF  M  

Appeal  by  defendant  froni  a  jua^;  ..ijt  of  the  ■...._.  -..il  i^v 
Hennepin  count}',  where  the  action  was  tried  before  Lochren,  J., 
and  a  jury,  and  plaintiff  had  a  verdict.   The  ''\         '  '  for  a 

new  trial  on  the  ground  that  the  verdict  w.  "  the 

'V  d  the  motion  vw. 

n  to  the  facts  rec  e  opinion,  it  app: 

y  of  the  plaintiff  that  he  purchased  the  proi 

...ai  the  defendant,  in  Minneapolis,  in  January,  1 

■ill  of  sale;  that  he  did  not  think  he  could  do  anyi 

■ '■■  at  the  time,  and  did  not  go  down  to  Spirit  Lai^L,  v.niic  ine 
was  situated,  till  May,  1886,  when  he  was  handed  a  tele- 
T.  V.  Horton,  which  had  been  received  from  Spirit  ^ 
.ed  that  McCurdy  was  tearing  down  the  rink ;  that  the 
^ .  ilia  was  a  month  old  when  handed  to  him,  and  that  when  he  reached 
:\^.irit  Lake  he  could  not  find  the  property,  and  found  that  the  build- 
ings in  which  it  was  supposed  to  be  had  been  moved  away.  McCurdy 
testified  that  he  purchased  the  property  in  question  from  the  de- 
fendant through  F.  M.  Horton,  as  her  agent:  that  he  took  posses- 
sion of  it  and  disposed  of  it  (refusi'  hat  disposition  he 
made  of  it),  ^r\A  (-hat,  as  a  part  of  th,  1  on  his  pnrch3<:e. 
•:           .;                       acres  of  land  in   jLOwa,   the 
:••<       :     ■.  :.                 .  Horton  (wife  of  F.  M.  H: 
' '         i  s  instructions. 

A;; .  ..iiELL,  J. — This  action    .,.,    ..■  ..u,^,^  ^...  i\.A.v-.vi    i.i^   v.^ 
certain  property,  which  plaintiff  had  exchanged  with  defenda: 
a   rlr/ing  rink,  skates,  boats,  etc.,  situated  at  Spirit  Lt.' 
t's  claim  is  that  there  was  an  entire  failure  nt  title  t< 
■'. '  'v,  becair 

•   -  s  not  cj; 

'-.  hatever  was  done  in  that  regard  having  been  oone  i 

jn,  assuming  to  act  as  her  agent.    Hence,  imic. 
authority  as  defendant's  agent  to  sell  to  ]\ 
c>Mu.-.  i.a^'.  been  no  such  sale,  and  plaintiff  b'  -^nsc  ui    ' 

The  burden  was  on  plaintiff'  to  prove  such  ac 

^^  '■:  in  the  law  of  agency  that  no  one  c 

exceDt  by  the  will  of  the  principal,  el 
:r  circumstances;  that  an  age 
■^ii:  ■;t\-  '{<'>  (]<)    I   narLiiM'.ir  A'I   \; 

ance,  and  ; 
own  .statensc.c    :.  .. 
and  strip] ting  the  e 


cr: 


coupled  witJi 
tor  that  sin, 
rty,  and  . 
;  uuder  whi.  ' 
imer  v.  Win^ 
•I  Ind.  ■-,■ 
tend  sti 

ther  side 
iiich  seer: 
-viC  called 
ting  under 


o  the  agent  being  au- 

is  directly  authorized 

xed  upon  as  a  part  of 

)  make  the  sale.    The 

•p.  92'.i.  and  Blanchard 

.'ccily  i-         '  'iC  one 

.  doctriri.  lor  by 

been  a  single  case  called  to  our 
pon  the  precise  question  which 
In  our  opinion,  the  appellant, 

red  by  said  written  instrument, 

jut  simply  as  the  .agent  of  the 
as  we  have  seen,  he  could  not. 
over  any  compensation, 

■■.wst  be  .iffinncd. 


ondent 


lem.   Ti-. 


.  are  tW' 

. ,.  .  1 ,  ...  . 

rhe  cases  cited 

■  lly  competent 

'-,ke.   If  the 

d  that  he 

land.    The 

law 

W: 

•6,000, 

to  be 

•iie  parties 

aiivl.  rrfl-  r-  1 

h(- 

.ir^ 

'    vriil    en- 

.  ' '^      lllill,     .•-l.~'     ijl'i'VVIli      Ik"..      >.  1  il.  tl  .  .t  1  ill^      pell- 

benefit  of  the  landowner.    The  sale,  if 

I  benefit  of  both.   This  is  not  a  written 

where  the  agent  gets  a  commission  on 

d.  The  owner  here  has  seen  fit  to  make 

isions  in  his  own  interest.    He  said,  in 

c  agent,  "If  you  will  sell  this  land  within  sixty  days, 

■   'our -services  all  you  can  get  for  it  over  six  thou- 

i  much  or  little ;"  and  he  should  be  compelled  to 

'o.   This  employment  was  taken  on  the  doc- 

\tter  how  much  labor  or  money  might  have 

^lant  in  an  efTort  to  sell  the  land,  if  he 

he  could  have  recovered  nothing.    Re- 

'.^l.f  by  his  contract,  and  he  ought  not  to 

^d  to  the  benefit  of  ihc:  ->>-  ."  ,..1  1 


fidee  &  Co..  Q-?  Cal 


IMPLIED   AUTHORITY.  95 

Section  3. — Implied  Authority. 

GRAVES  V.  HORTON. 
1887.     Supreme  Court  of  Minnesota.     38  j\Iinn.  66. 

Appeal  by  defendant  from  a  judgment  of  the  district  court  for 
Hennepin  county,  where  the  action  was  tried  before  Lochren,  J., 
and  a  jury,  and  plaintiff  had  a  verdict.  The  defendant  moved  for  a 
new  trial  on  the  ground  that  the  verdict  was  not  justified  by  the 
evidence,  and  the  motion  was  denied. 

In  addition  to  the  facts  recited  in  the  opinion,  it  appeared  from  the 
testimony  of  the  plaintiff  that  he  purchased  the  property  in  ques- 
tion from  the  defendant,  in  Minneapohs,  in  January,  1886,  receiving 
a  bill  of  sale ;  that  he  did  not  think  he  could  do  anything  with  the 
property  at  the  time,  and  did  not  go  down  to  Spirit  Lake,  where  the 
property  was  situated,  till  May,  1886,  when  he  was  handed  a  tele- 
gram by  T.  V.  Horton,  which  had  been  received  from  Spirit  Lake, 
and  stated  that  McCurdy  was  tearing  down  the  rink ;  that  the  tele- 
gram was  a  month  old  when  handed  to  him,  and  that  when  he  reached 
Spirit  Lake  he  could  not  find  the  property,  and  found  that  the  build- 
ings in  which  it  was  supposed  to  be  had  been  moved  away.  McCurdy 
testified  that  he  purchased  the  property  in  question  from  the  de- 
fendant through  F.  M.  Horton,  as  her  agent;  that  he  took  posses- 
sion of  it  and  disposed  of  it  (refusing  to  state  what  disposition  he 
made  of  it),  and  that,  as  a  part  of  the  consideration  on  his  purchase, 
he  conveyed  eighty  acres  of  land  in  Iowa,  the  conveyance  being 
made  to  Caroline  W.  Horton  (wife  of  F.  M.  Horton)  under  F.  M. 
Horton's  instructions. 

Mitchell,  J. — This  action  was  brought  to  recover  the  value  of 
certain  property,  which  plaintiff  had  exchanged  with  defendant  for 
a  skating  rink,  skates,  boats,  etc.,  situated  at  Spirit  Lake,  Iowa. 
Plaintiff's  claim  is  that  there  was  an  entire  failure  of  title  to  this  (lat- 
ter) property,  because  defendant  had  previously  sold  it  to  one  ]\Ic- 
Curdy.  It  is  not  claimed  that  defendant  had  personally  sold  it  to 
McCurdy,  whatever  was  done  in  that  regard  having  been  done  by  one 
F.  M.  Horton,  assuming  to  act  as  her  agent.  Hence,  unless  F.  M. 
Horton  had  authority  as  defendant's  agent  to  sell  to  McCurdy,  there 
could  have  been  no  such  sale,  and  plaintiff  has  no  cause  of  action. 
The  burden  was  on  plaintiff  to  prove  such  agency. 

It  is  axiomatic  in  the  law  of  agency  that  no  one  can  become  the 
agent  of  another  except  by  the  will  of  the  principal,  either  expressed 
or  implied  from  particular  circumstances  ;  that  an  agent  cannot  cre- 
ate in  himself  an  authority  to  do  a  particular  act  by  its  perform- 
ance, and  that  the  authority  of  an  agent  cannot  be  proved  by  his 
own  statement  that  he  is  such.  Applying  these  elementary  principles, 
and  stripping  the  evidence  of  all  that  is  immaterial  or  incompetent, 


96  CREATION. 

and  giving  to  what  remains  all  the  force  that  can  be  claimed  for  it, 
all  there  is  that  was  brought  home  to  defendant  tending  to  prove 
any  such  agency  is  that,  when  F.  M.  Horton  was  in  Spirit  Lake,  he 
transmitted  and  submitted  to  her  in  Minneapolis  what  purported  to 
be  a  proposition  from  McCurdy  to  give  for  this  property  $1,090  in 
goods,  and  assume  a  mortgage  on  it  for  $385,  and  that  she  agreed 
to  accept  this  proposition ;  that  McCurdy  being  unable  to  carry  this 
out,  F.  M.  Horton  submitted  to  her  another  proposition  as  coming 
from  McCurdy,  viz.,  to  give  in  place  of  the  goods  eighty  acres  of 
land  in  Iowa ;  that  defendant  declined  to  accept  this  last  proposition, 
and  so  notified  McCurdy ;  that  about  two  weeks  after  this  she  au- 
thorized F.  M.  Horton  to  negotiate  the  sale  of  this  property  to  plain- 
tiff on  the  terms  which  were  finally  agreed  on,  she  herself  making  the 
transfer  by  executing  the  bill  of  sale  described  in  the  complaint.  We 
have,  on  the  other  hand,  the  flat  denials  of  both  defendant  and  F.  M. 
Horton  that  he  ever  had  any  authority  from  her  to  sell  this  prop- 
erty or  ever  was  her  agent  for  this  or  any  other  purpose. 

This  is  really  all  the  competent  evidence  there  is  at  all  bearing 
upon  this  question  of  agency.  The  acceptance  of  McCurdy's  first 
proposition,  which  he  was  unable  to  carry  out,  certainly  does  not 
tend  to  prove  authority  to  F.  M.  Horton  to  sell  on  the  terms  of  the 
second,  which  defendant  expressly  declined  to  accept ;  and  if  any 
sale  ever  was  made  to  McCurdy,  it  was  on  the  basis  of  this  last 
proposition.  Hence  the  evidence  of  agency  is  reduced  down  to  the 
fact  that  defendant  authorized  F.  M.  Horton  to  negotiate  the  sale 
to  plaintiff,  which  she  herself  consummated  by  the  execution  of  a 
bill  of  sale.  It  certainly  cannot  be  that  this  is  sufficient.  It  is  true 
that  agency  may  be  proved  from  the  habit  and  course  of  dealing  be- 
tween the  parties,  that  is,  if  one  has  usually  or  frequently  employed 
another  to  do  certain  acts  for  him,  or  has  usually  ratified  such  acts 
when  done  by  him,  such  person  becomes  his  implied  agent  to  do 
such  acts,  as,  for  example,  the  case  of  the  manager  of  a  plantation 
in  buying  supplies  for  it,  or  the  superintendent  of  a  saw-mill,  in 
making  contracts  for  putting  in  logs  for  the  use  of  the  mill,  which 
are  the  cases  cited  by  respondent.  It  is  also  true,  as  was  said  in  Wil- 
cox V.  Chicago,  Mil.  &  St.  Paul  R.  Co.,  24  Minn.  269  (which  in- 
volved the  question  of  the  authority  of  the  person  to  whom  goods 
were  delivered  to  receive  them),  that  a  single  act  of  an  assumed 
agent,  and  a  single  recognition  of  it,  may  be  of  so  unequivocal  and 
of  so  positive  and  comprehensive  a  character  as  to  place  the  author- 
ity of  the  agent  to  do  similar  acts  for  the  principal  beyond  question. 
It  is  also  true  that  the  performance  of  subsequent  as  well  as  prior 
acts,  authorized  or  ratified  by  the  principal,  may  be  evidence  of 
agency,  where  the  acts  are  of  a  similar  kind,  and  related  to  a  con- 
tinuous series  of  acts  embracing  the  time  of  the  act  in  controversy, 
as  indicating  a  general  habit  and  course  of  dealing ;  as,  for  example, 
the  acts  embracing  the  time  of  the  act  in  controversv,  as  indicating 


Olcutt 
counsel. 


at  term- 
.  ..ouk!    '  ' 
admissi 

'v    tiiai    r  !;;,■:-      ,  .    .'!(_■;.  o  ■:i 
it    Lake,    tradinp-    in    real    <■ 


:  tnem  i; 

-.i:sible  to  j    -    -    -r- - 

,e  witness  to  testify  that  F,  M.  Horton  was  pir 
-1  at  Spirit  Lake  as  the  agent  of  Jennie  ■ 

;e  proved  by  general  reputation. 
r5e<l,  and  new  trial  ordered.^ 


~  T^vvN  V.  JACKSON. 

■''XNECTiLc  ..     ^  Jonn.  288. 


•  firjc   nr.-   i 


i..  -:  ^--.  ,..w.  V  ..:,.. -.v.i  .,1   ;.ci«;les  dcHvered  to.  -"—' 
s-er  P.  Jackson,  a  minor  son  of  the  defendant  . 

acts  reported  m  this  ca 


airs  entrusted  to  ner  charge. 


..led  for  it, 

.mg  to  prove 

Spirit  Lake,  he 

•'•ted  to 

Md  thai 

i!ial)Ie  to    .  . 

'.  ion  as  coming 

ighty  acres  of 

ist  proposition, 

'iis'  she  aii- 

V  to  plain - 

'ig-  the 

..   We 

ant  and  F.  M. 

-.(-!]    l!'!'-;    m  ( ii'i- 


tlic  iV. 


dots  not 

iTT^-  of  the 

^  -f  any 

'S  last 

to  the 

ic  sale 

X  of  a 

xl  IS  true 

lealing  be- 

■  employed 

:-i  such  acts 

implied  agent  -to  do 

.  M.  ,-  of  a  plantatio" 

a  saw-mill, 

'I  the  mill,  whi 

";  was  said  in  \\ 

'ch  in- 

iiroods 

1   assumed 

'viK-nl  and 

nthor- 

■,i  i'-_\  >M,  I  ijuestion. 

lit  as  well  as  prior 

may  be  evidence  t)f 

nnd  related  to  a  ron- 

n  contP  ^ 

-,  for  ex:; 

\      >  indicating 


'implied  authority.  97 

a  general  habit  and  course  of  dealing ;  as,  for  example,  the  acts  of 
the  president  of  a  railway  company  in  making  drafts  in  the  name 
of  the  company,  which  were  honored  by  it,  which  was  the  case  of 
Olcott  V.  Tioga  R.  Co.,  27  N.  Y.  546,  84  Am.  Dec.  298,  cited  by 
counsel.  But  we  think  the  books  will  be  searched  in  vain  for  a  case 
where  it  was  ever  held  that  authority  to  negotiate  for  the  sale  of 
property  to  one  person  at  one  time,  on  certain  terms,  the  transfer  to 
be  made  by  the  principal  in  person,  was  evidence  of  authority  to  sell 
and  transfer  the  same  property  at  some  former  time  to  another 
person  on  different  terms.     *     *     * 

A  new  trial  would,  however,  have  to  be  granted  on  the  ground  of 
error  in  the  admission  of  evidence.  The  general  statement  of  the 
witness  McCurdy  that  Frank  INI.  Horton  did  quite  an  extensive 
business  at  Spirit  Lake,  trading  in  real  estate,  and  frequently 
bought  and  sold  in  the  name  of  Jennie  L.  Horton  and  Carolina  W. 
Horton,  without  identifying  the  transaction,  or  describing  them,  or 
in  any  way  bringing  them  home  to  the  notice  or  knowledge  of  de- 
fendant, was  inadmissible  to  prove  agency.  The  court  also  erred  in 
allowing  the  same  witness  to  testify  that  F,  M.  Horton  was  publicly 
and  generally  known  at  Spirit  Lake  as  the  agent  of  Jennie  L.  Hor- 
ton.  Agency  cannot  be  proved  by  general  reputation. 

Judgment  reversed,  and  new  trial  ordered.^ 


BRYAN  V.  JACKSON. 

1822.     Supreme  Court  of  Errors  of  Connecticut.     4  Conn.  288. 

The  plaintiff's  account  consisted  of  articles  delivered  to,  and  work 
done  for  Oliver  P.  Jackson,  a  minor  son  of  the  defendant  and  a  stu- 

^  "But  upon  the  facts  reported  in  this  case,  there  was  an  agency  in  fact  aris- 
ing from  the  absence  of  the  husband,  and  from  his  having  left  his  wife  with 
the  care  of  the  family  and  in  the  management  of  his  affairs  at  home.  The 
agency,  however,  was  not  unlimited.  The  power  must  be  construed  in  refer- 
ence to  the  nature  and  extent  of  the  business  affairs  entrusted  to  her  charge." 
Peck,  J.,  in  Meader  v.  Page,  39  Vt.  306,  309. 

"One  partner  has  an  implied  authority  to  bind  the  firm  by  simple  contracts 
relating  to  the  partnership,  and  within  the  scope  of  the  regular  partnership 
business.  In  such  cases,  the  act  of  each  partner  is  regarded  as  the  act  of  all. 
But  guaranties  of  the  debts  of  others,  and  notes  or  bills  of  exchange  made  or 
endorsed  for  the  accommodation  of  others,  or  as  surety  for  others,  are  out 
of  the  scope  of  the  business  of  a  trading  firm.  Whatever  the  English  law  may 
formerly  have  been,  as  to  guaranties,  we  consider  it  now  settled,  in  England 
as  well  as  in  the  United  States,  that  one  party  cannot  bind  the  firm  by  a 
guaranty  of  the  debt  of  another,  without  a  special  authority  for  that  purpose, 
or  an  authority  to  be  implied  from  the  comnaon  course  of  the  business  of  the 
firm,  or  the  previous  course  of  dealing  between  the  parties,  unless  the  guar- 
anty be  afterward  adopted  and  acted  upon  by  the  firm."  Metcalf,  J.,  in 
Sweetser  v.  French,  2  Cush.  (Mass.)  309,  313. 
7 — Reixhard  Cases. 


98 


CREATION. 


dent  in  Yale  College ;  which  account  accrued  between  the  226.  of 
June  and  the  nth  of  September,  1818;  and  the  question  was, 
whether  the  defendant  was  liable  for  it.  The  plaintiff  did  not  claim 
that  the  defendant's  son  was  in  need  of  the  articles  charged,  so  that 
they  were  necessaries  for  him ;  or  that  the  defendant  had  given  any 
express  authority  to  his  son  to  contract  the  debt.  It  was  proved  that 
on  the  20th  of  June,  1818,  the  defendant  gave  to  his  son  $135,  with 
direction  to  pay  the  money  to  the  plaintiff  on  an  account,  of  the  same 
nature  with  the  one  in  question,  for  articles  delivered  to  and  work 
done  for  such  son,  without  objecting  to  the  account,  or  giving  any 
notice  to  the  plaintiff'  not  to  trust  his  son  any  further ;  and  that  the 
defendant  then  gave  positive  orders  to  his  son  to  contract  no  more 
debts,  and  received  from  him  a  positive  assurance  that  he  would  not. 
At  the  same  time  the  defendant  placed  his  son  under  the  care  of 
Nathaniel  Rossiter,  Esq.,  with  direction  to  furnish  him  with  every- 
thing necessary  and  suitable  for  him. 

The  plaintiff  insisted  that  the  articles  were  delivered  and  the  work 
done  for  the  defendant's  son,  by  the  authority  and  consent  of  the  de- 
fendant ;  and  in  support  of  this  claim,  the  plaintiff  offered  himself  as 
a  witness,  to  swear,  that  the  defendant  said,  after  the  delivery  of  the 
articles,  and  after  the  last  charge  in  the  account,  that  he,  the  de- 
fendant, had  got  the  plaintiff's  bill ;  that  he  should  have  notified  the 
plaintiff  not  to  trust  him,  on  his  son's  account,  when  he  paid  the 
former  bill,  but  did  not  wish  to  hurt  his  son's  feelings ;  that  he 
found  no  fault  with  the  bill,  but  wished  to  stop  his  son's  extrava- 
gance, and,  for  that  reason,  refused  to  pay  his  bills,  at  that  time ; 
and  that  he  had  once  given  his  son  money  to  pay  the  plaintiff's 
bill,  but  he  had  spent  it.  To  the  admission  of  this  evidence  the  de- 
fendant objected,  on  the  ground  that  the  plaintiff  was  an  incompetent 
witness  to  testify  to  such  declarations.  The  judge  overruled  the  ob- 
jection, and  admitted  the  evidence. 

The  plaintiff  having  obtained  a  verdict,  the  defendant  moved  for 
a  new  trial,  on  the  ground  that  the  decision  of  the  judge,  above 
stated,  was  erroneous. 

HosMER,  Ch.  J. — I  am  of  opinion,  from  the  facts  apparent  on  the 
motion,  that  O.  P.  Jackson  had  an  implied  general  authority  from 
the  defendant  to  contract  on  his  credit  with  the  plaintiff;  and  that 
the  testimony  of  the  plaintiff,  in  this  case,  was  correctly  admitted. 

Without  any  express  authority  having  been  conferred  on  him  by 
the  defendant,  O.  P.  Jackson  had  procured  of  the  plaintiff  articles 
similar  to  those  which  constitute  the  present  book  debt.  Of  the 
debt  thus  contracted,  the  defendant  made  payment  "without  objecting 
to  the  same,  or  giving  any  notice  to  the  plaintiff,  not  to  trust  his  son 
any  further."  To  his  son  the  defendant  gave  a  positive  prohibition 
against  contracting  debts,  and  placed  him  under  the  care  of  Mr. 
Rossiter,  but  no  information  of  this  was  communicated  to  the  plain- 
tiff".    The  above  facts  amount  to  an  authority  imparted  to  the  de- 


■^le  plaintiff  ;  led;  and  on  this 

I  to  act.    "If  I  Oiice  pay"  (says  Chrj 
what  my  servant  has  bought  upon  ■ 
■ig  any  disapprobation  of  it,  it  is  equivalent  to  a 

.  .    ..    .  -  him  in  future;"  and  this  opinion  ofa  ver^^  learned 

ver  is  in  conformity  to  established  decisions.   The  case  of  Haz- 
V    Treadvvell,  i  Strange  506,  goes  the  length  of  the  principle 
.:     ■;  bv  the  editor  of  Sir  William  Blackstone :  and  in  the  text, 
'    '  is  subjoined,  the  author  has  said:  "^ t 

■s  on  trust,  and  sometimes  with  read} 
lor  all  he  takes  up;  for  the  tradesman  d. 
when  he  comes  by  my  order,  and  when  i.^  .;:  .   . 
All  these  principles  have  their  foundation  in  un 
.ce  and  policy;  and,  therefore,  it  is  that  by  law,  wiitic  ;  ;. 
of  another,  who  is  a  son  or  a  servant,  are  recognized,  by 
hem,  this  is  justly  considered  equivalent  to  a  gen- 

•nony  of  the  to  the  declaration  of  the 

iccount  in  q.  ad  .accrued  and  had  been 

,  if  competent,  was  unquestionably  relevant.  It  seems  that 
idant  was  restrained  from  giving  notice  to  the  plaintiff  not 
his  son,  lest  he  should  hurt  his  feehngs ;  that  with  the  bill 
i  no  'fault ;  but  wishing  to  stop  his  son's  extravagance,  he 
ncr]  paying  it,  and  that  he  had  .q-iven  money  to  his  son  to 
-  bill,  which  he  had  .  \     Testimony  of  '" 

.sd  something,  and  w.-.  ,    -  for  the  consider;)  •. 

;ry,  upon  the  inquiry,  whether  authority  had  been  given  to 
the  debt  in  controversy.^     *     *     * 
rial  not  to  be  granted.^ 

j:.\  fixdlay.  ' 

1876,    Sltreme  Court  of  Illinois.    82  111.  524. 

— This  w  Findlay  against 

damages  L  ng  to  receive 


am,  134  '. 


o8 


i   k;  I  \\  i- :• 


;ie    iitl;  irid   the   question   was, 

■         *  ■  plaintiff  did  not  claim 

r  tide?  rhn«-ored.  so  that 

vie  fend  n  any 

•0  debt.    •  ,  1  that 

L^ave  to  his  son  ^135,  with 

... ,  pav  on  an  account,  of  the  same 

w'ith  thV  'les  dehvered  to  and  work 

;  '  ne  account,  or  giving  any 

'  any  further ;  and  that  the 

;s  son  to  contract  no  more 

.v-surance  that  he  would  not. 

.'\i  the  siW;<  ed  his  son  under  the  care  of 

j^Mrl-.-M  ;--■]   1   .  .  .n  id  f'.iriM,!'    I'.iiit  with  evcrv- 


;onsent  of  the  de- 
red  himself  as 
el  i  very  of  the 
-,  the  de- 
tified  the 
paid  the 
;  that  he 
■  extrava- 
time  ; 
itiff's 


vn  udge  overruled  the  ob- 

.  the  defendant  moved  for 

,r-;-,r.    --t   ■!-■    :...i,..^.     nlx)ve 

•:,•_    ;,.;;:■    .;i.^,...-:.iil  on  the 
■i.;  <i-'irrid  H'iilKirity  from 
villi  the  plaintiff;  and  that 
v,;i:i  correctly  admitted. 

od  on  him  by 

lintiff  articles 

lebt.     Of  the 

em    wiihout  objecting 

iff,  not  to  trust  his  son 

..p     .;;  a  positive  prohibition 

ag-.v'iT-i  vicr  the  care  of  Mr. 

Rossiter,  b  cated  to  the  plain- 

fJfV         TV."  :,-irlp.l     ir.    llic     no- 


IMPLIED   AUTHORITY.  99 

fendant's  son,  so  far  as  the  plaintiff  is  concerned ;  and  on  this  sup- 
position he  was  warranted  to  act.  "If  I  once  pay"  (says  Christian, 
I  Bla.  Comm.  430)  "for  what  my  servant  has  bought  upon  trust, 
without  expressing  any  disapprobation  of  it,  it  is  equivalent  to  a 
direction  to  trust  him  in  future ;"  and  this  opinion  of  a  very  learned 
lawyer  is  in  conformity  to  established  decisions.  The  case  of  Haz- 
ard v.  Treadwell,  i  Strange  506,  goes  the  length  of  the  principle 
declared  by  the  editor  of  Sir  William  Blackstone ;  and  in  the  text, 
to  which  that  is  subjoined,  the  author  has  said:  "If  I  send  my  serv- 
ant sometimes  on  trust,  and  sometimes  wath  ready  money,  I  am  an- 
swerable for  all  he  takes  up ;  for  the  tradesman  cannot  possibly  dis- 
tinguish when  he  comes  by  my  order,  and  when  upon  his  own  au- 
thority." All  these  principles  have  their  foundation  in  unquestion- 
able justice  and  policy;  and,  therefore,  it  is  that  by  law,  where  the 
contracts  of  another,  who  is  a  son  or  a  servant,  are  recognized,  by 
the  payment  of  them,  this  is  justly  considered  equivalent  to  a  gen- 
eral command. 

The  admitted  testimony  of  the  plaintiff  to  the  declaration  of  the 
defendant,  after  the  account  in  question  had  accrued  and  had  been 
delivered,  if  competent,  was  unquestionably  relevant.  It  seems  that 
the  defendant  was  restrained  from  giving  notice  to  the  plaintiff  not 
to  trust  his  son,  lest  he  should  hurt  his  feelings ;  that  with  the  bill 
he  found  no  fault;  but  wishing  to  stop  his  son's  extravagance,  he 
had  declined  paying  it,  and  that  he  had  given  money  to  his  son  to 
pay  the  plaintiff's  bill,  which  he  had  expended.  Testimony  of  this 
description  weighed  something,  and  was  proper  for  the  consideration 
of  the  jury,  upon  the  inquiry,  whether  authority  had  been  given  to 
contract  the  debt  in  controversy.^     *     *     * 

New  trial  not  to  be  granted.^ 


BAGLEY  V.  FINDLAY. 

1876.     Supreme  Court  of  Illinois.     82  111.  524. 

Dickey,  J. — This  was  an  action  of  assumpsit  by  Findlav  against 
appellant  for  damages  for  breach  of  contract  in  refusing  to  receive 

^  A  portion  of  the  opinion  dealing  with  a  question  of  testimony  is  omitted. 

^  "No  action  can  be  maintained  against  a  father  for  goods  purchased  on  his 
credit  by  his  minor  child,  even  though  they  be  necessaries,  unless  the  father 
has  expressly  or  impliedly  authorized  the  purchase  on  his  credit.  The  author- 
ity of  an  infant  to  bind  the  father  by  contract  for  necessaries  may  be  inferred 
from  slight  evidence."   Depue,  J.,  in  Freeman  v.  Robinson,  38  N.  J.  L.  383,  384. 

Regarding  the  powrer  of  a  wife  to  pledge  her  husband's  credit  for  neces- 
saries, see  Benjamin  v.  Dockham,  134  Mass.  418. 


lOO  ,  CREATION. 

and  pay  for  goods  sold  by  appellee  to  appellant,  the  delivery  of 
which  was  offered.  The  goods  in  question  were  part  of  them  in 
Chicago  and  part  of  them  in  Milwaukee.  Soon  after  the  refusal  of 
appellant  to  accept  the  goods  appellee  gave  him  notice  that  he  would 
proceed  to  sell  the  goods  to  the  best  advantage  and  hold  appellant 
responsible  for  all  losses,  if  any.  After  this,  appellant  was  again 
requested  to  accept  the  goods.  The  goods  were  sold.  The  net  pro- 
ceeds of  this  sale  fell  short  of  the  contract  price  to  the  amount  of 
$1,629.86,  not  including  $402.62,  expenses  for  commissions  and 
charges.  The  issue  was,  by  consent,  tried  without  the  intervention 
of  a  jury.  The  finding  was  for  appellee,  and  his  damages  were  as- 
sessed at  $1,629.86,  and  judgment  thereon. 

It  is  contended  by  appellant  that  the  measure  of  damages  adopted 
by  the  court  below  was  wrong. 

When  a  vendee  of  goods  sold  at  a  specific  price  refuses  to  take 
and  pay  for  the  goods,  the  vendor  may  store  the  goods  for  the 
vendee,  give  him  notice  that  he  has  done  so,  and  then  recover  the 
full  contract  price,  or  he  may  keep  the  goods  and  recover  the  excess 
of  the  contract  price  over  and  above  the  market  price  of  the  goods 
at  the  time  and  place  of  delivery,  and  this  means  the  market  price  of 
such  goods  in  such  condition  and  in  such  quantity  as  the  goods  were 
at  the  time  for  delivery.  In  such  case,  if  goods  are  bought  in  large 
quantities,  the  market  price  at  retail  is  not  the  standard,  but  the 
market  price  in  large  quantities ;  or  the  vendor  may,  giving  notice 
to  the  vendee,  proceed  to  sell  the  goods,  in  their  then  condition  and 
quantity,  to  the  best  advantage,  and  recover  of  the  vendee  the  loss, 
if  the  goods  fail  to  bring  the  amount  of  the  contract  price.  The 
appellee  adopted  the  latter  course,  and  the  only  question  of  fact 
presented  is,  were  the  goods  sold  to  the  best  advantage. 

In  such  case  the  vendor  takes  the  position  of  agent  for  the  vendee, 
and  is  held  to  the  same  degree  of  care,  judgment  and  fidelity  that  is 
imposed  by  the  law  upon  an  agent  put  in  the  custody  of  such  goods 
in  such  condition,  with  instructions  to  sell  them  to  the  best  advan- 
tage. 

Without  reviewing  the  evidence  in  this  case,  it  is  sufficient  for  us 
to  say  that  the  evidence  fully  sustains  the  finding  of  the  court — that 
the  goods  were  fairly  sold,  with  reasonable  diligence,  judgment  and 
care. 

Appellant  insists  that  the  sale  must,  in  such  case,  be  in  the  market 
where  the  goods  are  and  objects  that  the  goods  stored  in  Milwaukee 
were  sold  in  Chicago.  The  purchaser  was  found  in  Chicago,  but 
he  bought  the  goods  in  their  then  condition  in  store  in  Milwaukee, 
and  if  these  goods  were  taken  to  Chicago  at  all,  it  was  after  the  sale. 

The  appellant  has  no  just  cause  of  complaint  against  the  finding 
of  the  court.  Upon  the  evidence  shown  in  the  record,  the  court  be- 
low might,  without  impropriety,  have  included  in  the  assessment  of 


iJCEPTAN. 


uamagc-  in    '^^  02  expenses  incurred  by  the  appellee  for  commission- 
ancl  cli  irred  in  making  the  sale. 

.lit  of  the  court  below  is  aflBrmed. 
t  affirmed.^  \ 


TU. 


Section  '1. — Acceptajice  by  Agent. 

FIRST  NATIONAl  ■  E. 

1885.     Supreme  • 

.;oN  upon  a  promissov  The  defendant  j 

facts  as  constituting-  virtually  ;■  iilaJntili 

to  the  answer,  and  the  demun  :.     The 

elected  to  stand  upon  his  answer,  and  judgment  was  rendered  for 
tii,^  '^'^i^tiff.    The  defendant  ■   '•  ^  ' 

IS,  J. — I.     The  noti  de  payable  at  Iconium,  Iowa. 

)  i'i  <.iefendant  averred  in  his    hkv  er,  in  substance,  that  before  the 

note  became  due  he  deposited  at  Iconium,  with  one  Maiken,  the 

'it  necessary  to  pay  the  note,  of  which  fact  the  plaintiff  was 

.  '1;  that  the  plaintiff,  located  at  Albia.  Iowa,  then  wrote  to 

L       I],  at  Iconium,  in  these  words:    "We  hold  a  note  of  $147  on 

'  ;-i  Free,  payable  at  Iconium^  and  we  understand  the  money  has 

!     11  left  with  you  for  its  payment.    Next  time  any  of  you  come  to 

or  if  you  sooner  get  a  chance  to  send  by  a  reliable  party,  please 

in,  and  oblige;"  that  Maiken  held  the  money  with  the  intent 

T  send  it  or  take  it  to  the  plaintiff,  but  before  he  •:    ' 

:ty  to  do  so  his  house  was  broken  into  and  the  iv 

The  defendant  contends  that  the  answer  shows  that  the  plain- 
pted  Maiken  as  its  agent,  and  that  Maiken  was  holding  the. 

nch  agent  at  t^^^  '''^^  ^  it  was  stolen.    But,  in  our  opinion, 

n  cannot  be  The  plaintiff  did,  it  is  true,  pro- 

that  he  -;:„ulu  carry  or  send  the  money  to  Albia. 
indertakcn  to  do  <io,  it  may  be  that  iv.  doinp;-  -^o  he 
as  the  ;  agent, 

for  the  1  To  con 

must  be  consent  on  the  part  of  the  agent,  either  exp 
i  inferable  from  s<<mething  done.    But  in  this  r;  -- 
have  been  neither.     We  think  that  the  denv 
.'.ined.-      "      -     -^  ^ 

See  St.  Louis  Range  Co.  v.  Kline-Drummond  Mercati'  j  Mo.  App. 


and  pay  for  ,;  U,  the  delivery  of 

.■•li;-'i  vr-.;  of;,  ,.^.Q  part  of  them  in 

oon  after  the  refusal  of 

'   -uccj.  ■"  :"*^--e  that  he  would 

sell  th(  hold  appellant 

''  '  .    tins,  appellant  was  ag-ain 

'<:  were  sold.    The  net  pro- 
price  to  the  amount  of 
-    for   commissions   and 
cd  without  the  intervention 
"tm'  his  damages  were  as- 


at$i,6; 


./oasure  of  damages  adopted 


VvJitii  a  ice  refuses  to  take 

and  pay   .  ;!k-  goods  for  the 

vendee,  g\  en  recover  the 

"  ■!'  .  ..1  },-  Dver  the  excess 

e  of  the  goods 

'■':et  price  of 

,*  1  roods  were 

ht  in  large 

1,  liut  the 

notice 

,  : .     ,:  'n  and 

^•.Jantit3^  *  le  loss, 

'' -  .^..     The 

on  of  fact 
■■est  aa vantage. 
ion  of  agent  for  the  vendee, 
adgment  and  fidelity  that  is 
;!  the  custody  of  such  goods 
■    \'ll  them  to  the  best  advan- 

s  case,  it  is  sufficient  for  ns 

■^  of  the  court — that 

nee,  judgment  and 

:r(U?t,  in  Niich  case,  be  in  the  market 

ds  stored  in  Milwaukee 

found  in  Chicago,  but 

in  store  in  Milwaukee, 

"   it  was  after  the  sale. 

against  the  finding 

•J  cord,  the  court  be- 

l  .!  the  assessment  of 


ACCEPTANCE   BY    AGENT.  lOI 

damages  the  $402  expenses  incurred  by  the  appellee  for  commissions 
and  charges  incurred  in  making  the  sale. 

The  judgment  of  the  court  below  is  affirmed. 

Judgment  affirmed.^ 

Section  4. — Acceptance  by  Agent. 

FIRST  NATIONAL  BANK  OF  ALBIA  v.  FREE. 
1885.     Supreme  Court  of  Iowa.     67  Iowa  11. 

Action  upon  a  promissory  note.  The  defendant  pleaded  certain 
facts  as  constituting  virtually  a  payment.  The  plaintiff  demurred 
to  the  answer,  and  the  demurrer  was  sustained.  The  defendant 
elected  to  stand  upon  his  answer,  and  judgment  was  rendered  for 
the  plaintiff.    The  defendant  appeals. 

Adams,  J. — I.  The  note  was  made  payable  at  Iconium,  Iowa. 
The  defendant  averred  in  his  answer,  in  substance,  that  before  the 
note  became  due  he  deposited  at  Iconium,  with  one  Maiken,  the 
amount  necessary  to  pay  the  note,  of  which  fact  the  plaintiff  was 
notified ;  that  the  plaintiff,  located  at  Albia,  Iowa,  then  wrote  to 
Maiken,  at  Iconium,  in  these  words:  "We  hold  a  note  of  $147  on 
John  Free,  payable  at  Iconium,  and  we  understand  the  money  has 
been  left  with  you  for  its  payment.  Next  time  any  of  you  come  to 
Albia,  or  if  you  sooner  get  a  chance  to  send  by  a  reliable  party,  please 
send  it  in,  and  oblige ;"  that  Maiken  held  the  money  with  the  intent 
to  either  send  it  or  take  it  to  the  plaintiff,  but  before  he  had  an  op- 
portunity to  do  so  his  house  was  broken  into  and  the  money  was 
stolen. 

II.  The  defendant  contends  that  the  answer  shows  that  the  plain- 
tiff adopted  Maiken  as  its  agent,  and  that  Maiken  was  holding  the 
money  as  such  agent  at  the  time  it  was  stolen.  But,  in  our  opinion, 
this  position  cannot  be  sustained.  The  plaintiff  did,  it  is  true,  pro- 
pose to  Maiken  that  he  should  carry  or  send  the  money  to  Albia. 
If  Maiken  had  undertaken  to  do  so,  it  may  be  that  in  doing  so  he 
would  have  been  acting  as  the  plaintiff's  agent.  But  ^Maiken  never 
acted  nor  agreed  to  act  for  the  plaintiff.  To  constitute  a  person  an 
agent,  there  must  be  consent  on  the  part  of  the  agent,  either  expressed 
by  words  or  inferable  from  something  done.  But  in  this  case  there 
appears  to  have  been  neither.  We  think  that  the  demurrer  was 
rightly  sustained.^     *     *     *  3 

Affirmed. 

^  See  St.  Louis  Range  Co.  v.  Kline-Drummond  Mercantile  Co.,  120  Mo.  App. 

438- 

'A  portion  of  the  opinion  not  dealing  with  the  subject  of  Agency  is  omitted. 
'  "No  offer  to  employ  another  binds  the  person  making  it  to  pay  for  services 


I02  CREATION. 

Section  5. — Estoppel. 

LORD  CRANWORTH,  in  POLE  v.  LEASK. 
1863.     House  of  Lords.     33  L.  J.  Ch.  155. 

My  lords,  before  I  examine  in  detail  the  facts  of  this  case,  I  desire 
to  advert  very  shortly  to  one  or  two  general  propositions  connected 
with  the  law  of  agency  which,  I  think,  were  sometimes  lost  sight  of 
in  the  argument  of  this  case  at  your  lordship's  bar.  First,  then,  as 
to  the  constitution  by  the  principal  of  another  to  act  as  his  agent. 
No  one  can  become  the  agent  of  another  person  except  by  the  will 
of  that  other  person.  His  will  may  be  manifested  in  writing  or 
orally,  or  simply  by  placing  another  in  a  situation  in  which,  accord- 
ing to  ordinary  rules  of  law,  or  perhaps  it  would  be  more  correct  to 
say  according  to  the  ordinary  usages  of  mankind,  that  other  is  un- 
derstood to  represent  and  act  for  the  person  who  has  so  placed  him ; 
but,  in  every  case,  it  is  only  by  the  will  of  the  employer  that  an 
agency  can  be  created. 

This  proposition,  however,  is  not  at  variance  with  the  doctrine 
that  where  one  has  so  acted  as  from  his  conduct  to  lead  another  to 
believe  that  he  has  appointed  some  one  to  act  as  his  agent,  and  knows 
that  that  other  person  is  about  to  act  on  that  behalf,  then,  unless  he 
interposes,  he  will,  in  general,  be  estopped  from  disputing  the 
agency,  though  in  fact  no  agency  really  existed.  It  is,  however, 
necessary  to  bear  in  mind  the  difference  between  this  agency  by 
estoppel,  if  I  may  so  designate  it,  and  a  real  agency,  however  con- 
stituted.^ 

unless  he  is  given  to  understand  that  the  offer  is  accepted."  Cooley,  J.,  in 
McDonald  v.  Boeing,  43  Mich.  394,  396. 

*  "In  the  present  case  it  was  a  question  of  fact  whether  the  defendant,  by  his 
acts  and  conduct,  held  out  Michel  to  the  plaintiffs  as  his  agent,  and  whether, 
from  such  acts  and  conduct,  the  plaintiffs  were  led  to  believe,  and  did  be- 
lieve, that  the  defendant  was  the  principal  and  relied  on  this  in  selling  the 
goods  in  suit."    Merwin,  J.,  in  Page  v.  Methfessel,  71  Hun  (N.  Y.)  442,  448. 

"If  the  principal  holds  out  an  agent  or  servant  as  possessing  authority  to 
control  a  shop  or  place  of  business,  and  a  third  person  acts  upon  the  faith  of 
the  appearances  so  created,  the  principal  may,  in  such  a  case  as  this,  be  bound 
by  the  acts  of  the  apparent  agent  within  the  scope  of  his  ostensible  authority, 
although  as  between  the  agent  and  his  employer  no  such  authority  in  fact 
existed."    Elliott,  J.,  in  Over  v.  Schiffling,  102  Ind.  191,  196. 

See  the  following  articles :  "Agency  by  Estoppel,"  by  Walter  W.  Cook,  5 
Columbia  Law  Rev.  36;  "Agency  by  Estoppel,"  by  John  S.  Ewart,  5  lb.  354; 
"Agency  by  Estoppel,"  by  Walter  W.  Cook,  6  Ih.  34. 


!--'■,-,  103 

HAPT»Tv  -PAVPE  COMPAKY 

I  ■'-;-:.  '--.T  OF   .'VPFIiAL'i   OF    VIHGINIA,       9O  Ve.  4I3. 

ED  at  Wytheville.  Decided  at  Richmond. 
:al  from  decree  of  circuit  court  of  "Wise  county,  rendered  at 
its  December  term,  1892,  in  chancery  cause  wherein  J.  M.  Hardin, 
the  appellant,  was  complainant  and  the  Alexandria  Insurance  Com- 
pany was  defendant.  The  object  of  the  suit  was  to  compel  the  com- 
pany to  issue  to  the  complainant  a  policy  of  insurance  on  a  certain 
stock  of  merchandise  pursuant  to  a  contract  theretofore  made  by  the 
ith  him,  and  to  pay  the  loss  thereon,  amc  $750, 

>t  from  October  26,  1891.     The  court  b  nissed 

his  biii,  with  costs  against  him,  and  he  appealed.    Opinion  states  the 

rr^se. 

Fauniler<n\  J.,  delivered  the  opinion  of  the  court. 
The  facts  which  appear  by  the  record  are  as  follows  .    m    \uvciii- 
r.  1800.  one  G.  W.  Lovell,  whose  occupation  was  general  insur- 
rss  at  Big  Stone  Gap,  Wise  county,  Virginia,  went  to  see 
se,  who  told  him  that  he  wished  an  insurance  upon  his 
•  i  liquors  and  bar  fixtures,  and  asked  the  rate,  and  was  told 
s^ell  that  the  rate  was  three  per  centum.     Whereupon  Reese 
ted  Lovell  to  write  a  policy  for  $1,000.     Lovell  went  to  his 
where  he  had  the  blank  forms  and  instructions  of  the  Alex- 
Insurance  Company,  and  filled  in  a  policy,  as  instructed,  for 
i?y<o  insurance  upon  the  stock  of  liquors,  and  for  $250  insurance 
iinon  the  bar  fixtures,  furniture,  etc.,  and  mailed  it  to  the  "Alexan- 
nce  Company,  Alexandria,  \  Lovell,  in 

ved  from  that  company  a  p'  ering   (lie  p;    / 

with  insurance  of  $750  on  the  stock  of  liquors  and  $  le  bar 

f -•'+'- '-•^s,  furniture,  etc.,  in  the  two-story  frame  buildi  '  >•  >of, 

.indotte  avenue,  Big  Stone  Gap,  Va.,  for  one  yc  L., 

ber  25,  1890,  to  12  M.,  Novemljer  25,  1S91.  i  iwz  poucy  he 
<'d  to  the  insured,  W.  S.  Reese,  and  received  from  him  the 
t  $30  for  the  Alexandria  Insurance  Company.  On  the 
of  December,  1890,  Lovell  endorsed  on  this  policy  a  per- 
se, the  insured,  to  remove  the  stock  of  liquors  to  a  storage 
ar  of  the  original  place,  and  mailed  the  said  poHcv  <it'-- 
■<)  the  company  for  its  approval.     The  company  <' 

-  nit  so  endorsed  by  Lovell  upon  the  said  pol; - 

its  approval,  to  I>ovell.  who  delivered  i  e. 

1891,  R'  "'-y  to  J. 

writing.  who  <"' 

rh    the   said   assignment,   to    " 

-    -  ,   -  i. ,  r!'H-.r(  iVf;]  it  and  return -■('  i'- 

delivered  it  to  said  1  Mav,  . 


Section  5. — Estoppel 


f  i":' 


c  law 

fi 

argnm 

f" 

:•;,  the 

COtlSl 

iS'o  on; 

of  tha' 

orally, 

wg  to 

<_ic' 

br: 

a^^ 

.-.  1  desire 

connected 

<,  were 

-.  lost  sight  of 

i(>r<1'^l'. ' 

i''irst,  then,  as 

•VI  It  I      p< 

as  his  agent. 
pt  by  the  will 

V  be  m.. 

in  writing  or 
'  h,  accord- 

correct  to 

•   Ot   iiiai.iklil 

;i.  that  other  is  un- 

person  who  has  so  placed  him ; 
e  will  of  the  employer  that  an 

'i  the  doctrine 

11 L^   CO! 

ber  to 

.{.'  to  act  : 

\nows 

act  on  ' 

33  he 

be   est- 

;g-   the 

really  c". 

however, 

■rence  K. .. 

. .,    ....,     agency  by 

StltUU' 


'd  a  real  agency,  however  con- 


aCi.t:yi.fu. 


\.A}UIC\\     J. 


:  whether  the  defendant,  by  his 

ifFs  as  his  agent,  and  whether, 

re  led  to  believe,  and  did  be- 

d  relied  on  this  in  selling  the 

ssel,  71  Hun  (N.  Y.)  442,  448. 

int  as  possessing  authority  to 

1  person  acts  upon  the  faith  of 

1:  such  a  case  as  this,  be  bound 

ope  of  his  ostensible  authority, 

;io  such  authority  'in  fact 

01,  196. 

;,"  by  Walter  W.  Cook,  s 
John  S.  Ewart,  5  lb.  354 ; 


ESTOPPEL.  103 

HARDIN  V.  ALEXANDRIA  INSURANCE  COMPANY. 
1894.     Supreme  Court  of  Appeals  of  Virginia.     90  Va.  413. 

Argued  at  Wytheville.    Decided  at  Richmond. 

Appeal  from  decree  of  circuit  court  of  Wise  county,  rendered  at 
its  December  term,  1892,  in  chancery  cause  wherein  J.  M.  Hardin, 
the  appellant,  was  complainant  and  the  Alexandria  Insurance  Com- 
pany was  defendant.  The  object  of  the  suit  was  to  compel  the  com- 
pany to  issue  to  the  complainant  a  policy  of  insurance  on  a  certain 
stock  of  merchandise  pursuant  to  a  contract  theretofore  made  by  the 
company  with  him,  and  to  pay  the  loss  thereon,  amounting  to  $750, 
with  interest  from  October  26,  1891.  The  court  below  dismissed 
his  bill,  with  costs  against  him,  and  he  appealed.  Opinion  states  the 
case. 

Fauntleroy,  J.,  delivered  the  opinion  of  the  court. 

The  facts  which  appear  by  the  record  are  as  follows :  In  Novem- 
ber, 1890,  one  G.  W.  Lovell,  whose  occupation  was  general  insur- 
ance business  at  Big  Stone  Gap,  Wise  county,  Virginia,  went  to  see 
W.  S.  Reese,  who  told  him  that  he  wished  an  insurance  upon  his 
stock  of  liquors  and  bar  fixtures,  and  asked  the  rate,  and  was  told 
by  Lovell  that  the  rate  was  three  per  centum.  Whereupon  Reese 
instructed  Lovell  to  write  a  policy  for  $1,000.  Lovell  went  to  his 
office,  where  he  had  the  blank  forms  and  instructions  of  the  Alex- 
andria Insurance  Company,  and  filled  in  a  policy,  as  instructed,  for 
$750  insurance  upon  the  stock  of  liquors,  and  for  $250  insurance 
upon  the  bar  fixtures,  furniture,  etc.,  and  mailed  it  to  the  "Alexan- 
dria Insurance  Company,  Alexandria,  Virginia."  Lovell,  in  a  few 
days,  received  from  that  company  a  policy  covering  the  property 
with  insurance  of  $750  on  the  stock  of  liquors  and  $250  on  the  bar 
fixtures,  furniture,  etc.,  in  the  two-story  frame  building,  metal  roof, 
on  Wyandotte  avenue.  Big  Stone  Gap,  Va.,  for  one  year  from  12  M., 
November  25,  1890,  to  12  M.,  November  25,  1891.  This  policy  he 
delivered  to  the  insured,  W.  S.  Reese,  and  received  from  him  the 
premium  of  $30  for  the  Alexandria  Insurance  Company.  On  the 
second  day  of  December,  1890,  Lovell  endorsed  on  this  policy  a  per- 
mit for  Reese,  the  insured,  to  remove  the  stock  of  liquors  to  a  storage 
house  in  rear  of  the  original  place,  and  mailed  the  said  policy,  thus 
endorsed,  to  the  company  for  its  approval.  The  company  did  ap- 
prove the  permit  so  endorsed  by  Lovell  upon  the  said  policy  and  re- 
turned it,  with  its  approval,  to  Lovell,  who  delivered  it  to  Reese. 
On  the  7th  of  May,  1891,  Reese  assigned  this  policy  to  J.  M.  Hardin, 
the  appellant,  by  a  writing,  witnessed  by  Lovell,  who  sent  the  said 
policy,  so  endorsed  with  the  said  assignment,  to  the  Alexandria 
Insurance  Company,  who  approved  it  and  returned  it  to  Lovell,  who 
delivered  it  to  said  Hardin.    Thus  in  May,  1891,  the  original  policy 


I04  CREATION. 

became  the  property  of  Hardin  (the  appellant),  with  the  sanction 
of  the  company  to  the  assignment  and  to  the  removal  of  the  stock 
insured  from  the  two-story  frame  house  to  the  storage  house  in  its 
rear.  On  or  about  27th  of  July,  1891,  Hardin  removed  the  stock  of 
liquors  insured  from  the  storage  house  to  the  "Intermont  Hotel," 
and,  through  Lovell,  obtained  from  the  Alexandria  Insurance  Com- 
pany its  approval  and  permit  to  Hardin  of  this  second  removal. 
About  the  31st  of  August,  1891,  Hardin  informed  Lovell  that  he 
had  removed  the  stock  of  liquors  to  the  Summerfield  House  or 
building,  and  asked  Lovell  to  give  him  a  permit  or  approval  of  the 
said  transfer.  Lovell  told  Hardin  that  as  there  were  so  many  en- 
dorsements on  the  policy,  it  would  be  better  to  cancel  it  and  take  out 
a  new  policy  for  the  return  premium.  Hardin  was  in  a  great  hurry, 
and  told  Lovell  to  do  that.  Lovell  called  Hardin  back  and  told  him 
to  wait  till  he  could  fill  in  the  receipt  for  the  return  premium,  when 
Hardin  said  to  Lovell :  "Show  me  where  to  sign ;  you  can  fill  in  the 
amount."  This  Lovell  did,  and  filled  in  $5,  according  to  the  short- 
rate  table,  though  he  wrote  at  the  foot  of  the  said  receipt  for  the 
return  premium,  "cancelled  pro  rata  and  new  policy  to  be  issued." 
Lovell  then  sent  this  original  policy,  so  endorsed,  to  the  Alexandria 
Insurance  Company,  who  kept  or  suppressed  it ;  and,  instead  of  issu- 
ing a  duplicate  of  the  original  policy,  as  Hardin  expected,  issued  a 
new  and  different  policy  according  to  the  short-rate  table  (while  the 
original  policy  was  according  to  the  pro  rata)  for  $1,000  on  stock, 
which  device  and  arrangement  shortened  the  life  of  the  policy  to  the 
9th  of  October,  1891,  instead  of  the  25th  of  November,  1891,  and 
made  it  expire  on  the  9th  of  October,  1891. 

This  new  policy  was  sent  by  the  Alexandria  Insurance  Company 
to  Lovell,  but  it  never  came  to  the  hands  or  to  the  sight  of  Hardin. 
Hardin  was  absent  in  Norfolk  when  it  came  to  Lovell,  and  Lovell 
left  it,  he  says,  at  the  Summerfield  House,  which  was  not  Hardin's 
place  of  abode  and  in  which  he  had  no  concern  except  the  liquor 
stored  there. 

Hardin  contends  and  deposes  that  he  had  only  $882  in  stock,  and 
had  not  asked  for  insurance  of  $1,000,  nor  for  over  $750.  On  the 
26th  day  of  October,  1891,  the  Summerfield  House  was  burned 
down,  and  in  it  the  stock  of  liquors  was  destroved  of  the  value 
of  $882. 

The  Alexandria  Insurance  Company,  on  demand,  refused  to  pay 
the  insurance,  and  denied  all  liability  on  the  ground  that  the  new 
policy  expired  on  the  9th  of  October,  1891,  and  that  no  policy  ex- 
isted on  the  26th  of  October,  1891.  Had  the  new  policy  (issued  by 
the  insurance  company  but  never  delivered  to  Hardin)  been  a  dupli- 
cate of  the  original  (as  Hardin  claimed  and  expected),  at  pro  rata 
rates,  as  the  original  Avas,  it  would  not  have  expired  till  after  the 
26th  of  October,  1891,  the  date  of  the  fire,  and  it  would  have  cov- 


ESTOPPEL.  IC- 

•hp  1.)-.:      ''  was  wholly  different  from  the  policy  which  LoveJi 
rdin  to  obtain,  because  of  the  numerous  endorse- 
.  liginal,  the  only  reason  assigned  by  Lovell  and  urged 
I  for  canceling  the  original  policy  and  taking:  out  a  new 
i '  was  the  on ' 
and  he  reas< 
Loveii  tliat  the  new  policy  was  to  be  the  5anie  as  the 
.red,  for  convenience  only,  because  the  orio-innl  was  cov- 
ered :.:i  over  by  oft-repeated  endorsements.     The  i  now  is, 
v.h'         responsible  for  this  change  of  policies — a  ......      certainly 

n.'i        ended  or  expected  by  Hardin?     The  responsibility  lies  be- 
ne Alexandria  Insurance  Company  and  Lovell,  on    v/*"':  ■ 
telied  as  the  authorized  agent  or  representative  of  the  ■ 
;  misinformed  the  company  as  to  the  ten 
for  by  Hardin,  and  did  not  apprise  the  con  ; 
ason  why  Hardin  asked  for  a  new  policy,  and  that,  too,  on 
;ii. -.i.  -.T-on  and  the  reason  for  the  suggestion,  or  else  the 
'.tely  ignored  the  understanding  1>etween  Lovell  and 
rrarily  issued  the  new  policy  to  suit  itself,  at  short- 
\d  of  according  to  the  memorandum  endorsed  upon 
;iai  policy  by  Lovell,  "Canceled  pro  rata,  and  new  policy 
"    The  new  policy,  as  written,  was  never  contemplated,  noi' 
r,  by  Hardin.    It  was  the  device  of  the  company  or  of  L 
s  the  work  of  the  company,  it  is  responsible  for  destr  , 

^  security  for  $750  insurance  upon  the  stock  insured.     If  it 
ell's  act,  and  he  misled  the  company,  whose  medium  he  v^^as, 
le  and  responsible  for  his  acts  in  the  conduct  of  its  business, 
-veil  aild  the  company  claim  that  the  company  had  ^ 
■  commission  to  him  as  their  agent,- and  that  he  was  ;; 
a  broker.     But  this  is  playing  upon  words,  and  the  v 
:y  and  the  transaction  itself  show  that  he  was  held   . 
tb  lie  as  the  agent  or  intermediate  of  the  con^ 

It  :     .     !  whom  all  transactions  with  the  company  by  p...w.     ..-.>,;..^ 
or  '■■■  ■    :i£r  insurance  must  pass,  subject  to  approval.    The  insurance 
irnished  him   with   all  needful   papers  and   blanks,   re- 
'is  acts,  approved  permits  of  removal  given  by  him,  and 
L,  thereby  treating  and  holding  him  out  as  agent  t- 
had  the  right  to  deal  with  the  company  by  and  thi 
.   agent  in  fact.     Otherwise  the  public  would  be  misleij 
-'  hy  either,  or  by  a  combination  of  both. 
;a  Insurance  Company  must  be  held  resp(~ 

cd  to  Hardin  by  a  chr, '^  '•        '" 

■'  bv  it.  and  not  intr 


I04 

bec 

j)roperty  of 

any  to  I'i 

■n  the  t\N 

a  or  about  .' 

■asured  t^'^ 

)Ugh  Lci 

approw 

le  31st 

said 

tni 

dor-'. 

■IV' 

a  ri' 

an<i 

to  ■, 

in: 


y  of  O^ 

and  i"   ' 


of  $882. 


the 

rates,  a 
26th  of 


appelbnt),  with  the  sanction 

removal  of  the  stock 

•  storage  house  in  its 

removed  the  stock  of 

.I.e  "Intermont  Hotel," 

iexandria  Insurance  Com- 

■   of  this  second  removal. 

:  informed  Lovell  that  he 

ilie   Summerfield  House  or 

ii  a  permit  or  approval  of  the 

it  as  there  were  so  many  en- 

•ettt-r  to  cancel  it  and  take  out 

Hardin  was  in  a  great  hurry, 

iled  Hardin  back  and  told  him 

for  the  ri'turn  premium,  when 

:iere  to  s  can  fill  in  the 

;  in  S^,  -^  -  to  the  short- 

i'i  receipt  for  the 

cy  to  be  issued." 

o  the  Alexandria 

'    -nstead  of  issu- 

V  .,  as  Hai  ted.  issued  a 

'"       '  '  while  the 

HI  stock, 

■  o  the 

-.  . ,  and 

(891.  ■' 

\ Iexandria  Insuftince  Company 
uids  or  to  the  sight  of' Hardin, 
i  it  came  to  Lovell,  and  Lovell 
louse,  which  was  not  Hardin's 
had  no  concern  except  the  liquor 

':e  had  only  $882  in  stock,  and 

.   nor  for  over  $750.     On  the 

ifield   House  was  burned 

IS  destroyed  of  the  value 

••d  to  pay 
the  new 
-    lolicy  ex- 
issued  by 
•^  'a  dupli- 

pro  rata 
after  the 
lave  cov- 


ESTOPPEL.  105 

ered  the  loss.  It  was  wholly  different  from  the  policy  which  Lovell 
suggested  to  Hardin  to  obtain,  because  of  the  numerous  endorse- 
ments on  the  original,  the  only  reason  assigned  by  Lovell  and  urged 
upon  Hardin  for  canceling  the  original  policy  and  taking  out  a  new- 
one.  This  advice  and  this  reason  was  the  only  cause  of  Hardin's 
agreement  to  Lovell's  suggestion,  and  he  reasonably  understood  and 
relied  upon  Lovell  that  the  new  policy  was  to  be  the  same  as  the 
one  surrendered,  for  convenience  only,  because  the  original  was  cov- 
ered all  over  by  oft-repeated  endorsements.  The  question  now  is, 
who  is  responsible  for  this  change  of  policies — a  change  certainly 
not  intended  or  expected  by  Hardin?  The  responsibility  lies  be- 
tween the  Alexandria  Insurance  Company  and  Lovell,  on  whom 
Hardin  relied  as  the  authorized  agent  or  representative  of  the  com- 
pany. Either  Lovell  misinformed  the  company  as  to  the  terms  of 
the  new  policy  asked  for  by  Hardin,  and  did  not  apprise  the  company 
of  the  reason  why  Hardin  asked  for  a  new  policy,  and  that,  too,  on 
Lovell's  suggestion  and  the  reason  for  the  suggestion,  or  else  the 
company  deliberately  ignored  the  understanding  between  Lovell  and 
Hardin,  and  arbitrarily  issued  the  new  policy  to  suit  itself,  at  short- 
table  rates,  instead  of  according  to  the  memorandum  endorsed  upon 
the  original  policy  by  Lovell,  "Canceled  pro  rata,  and  new  policy 
to  issue."  The  new  policy,  as  written,  was  never  contemplated,  nor 
asked  for,  by  Hardin.  It  was  the  device  of  the  company  or  of  Lovell. 
If  it  was  the  work  of  the  company,  it  is  responsible  for  destroying 
Hardin's  security  for  $750  insurance  upon  the  stock  insured.  If  it 
was  Lovell's  act,  and  he  misled  the  company,  whose  medium  he  was, 
it  is  liable  and  responsible  for  his  acts  in  the  conduct  of  its  business. 
Both  Lovell  and  the  company  claim  that  the  company  had  never 
issued  a  commission  to  him  as  their  agent,  and  that  he  was  acting 
only  as  a  broker.  But  this  is  playing  upon  words,  and  the  whole 
testimony  and  the  transaction  itself  show  that  he  was  held  out  to 
the  public  as  the  agent  or  intermediate  of  the  company,  by  and 
through  w^hom  all  transactions  with  the  company  by  parties  seeking 
or  having  insurance  must  pass,  subject  to  approval.  The  insurance 
company  furnished  him  with  all  needful  papers  and  blanks,  re- 
sponded to  his  acts,  approved  permits  of  removal  given  by  him,  and 
paid  his  rent,  thereby  treating  and  holding  him  out  as  agent  to  the 
public,  who  had  the  right  to  deal  with  the  company  by  and  through 
him  as  their  agent  in  fact.  Otherwise  the  public  would  be  misled 
and  defrauded  by  either,  or  by  a  combination  of  both. 

The  Alexandria  Insurance  Company  must  be  held  responsible  for 
the  loss  occasioned  to  Hardin  by  a  change  of  his  policy  of  insurance, 
which  was  made  by  it,  and  not  intended  or  contemplated  by  him, 
and  brought  about,  either  by  the  agent,  Lovell,  or  by  the  act  of  the 
company,  of  its  own  motion,  or  by  a  combination  of  the  company 
and  Lovell. 


io6 


CREATION. 


The  decree  appealed  from  is  erroneous,  and  must  be  annulled  and 
reversed,  and  this  court,  proceeding  to  render  such  decree  as  the 
circuit  court  of  Wise  county  should  have  entered  in  the  cause,  will 
enter  a  decree  for  the  appellant,  according  to  the  prayer  of  his  bill, 
which  the  circuit  court  erred  in  dismissing. 

Decree  reversed. 


EXTENT,   CONSTRUCTION  ION  OF  AUTHORITY. 

Section  1. — Special,  General  and  Universal  Agents. 


LOUDON   SAVINGS   FUND   SOCIETY   v.   HAGERSTOWN 

INGS  BANK. 

i860.     Supreme  Court  of  Pennsylvania.    36  Pa.  St.  498. 

:>,  J.- — ^The  Hagerstovvn  Savings  Bank  brought  this  ac 
M  "-it  against  William  McGrath  and  his  numerous  cc- 

!  irtners  trading  and  doing  business  under  the  name 

1  ;ne  i^oudon  Savings  Fund  Society.     The  first  count  in 

:!  >  uarr.  is  found  upon  a  "certain  writing  obligatory,  com- 

,.'■■■  1  a  certificate  of  deposit,  for  the  sum  of  five  thousand 

■v..  .  -  -,aed  by  H.  Easton,  treasurer  of  said  Loudon  Savings 
Fund  Society  (who  had  full  power  conferred  upon  him  to  do  such 
act),  and  then  and  there  delivered  said  certificate  of  deposit  to  said 
plaintiff,  and  thereby  promised  to  pay  said  plaintiff  said  sum  of  five 
tl',ri'-  rd  dollars,  six  months  after  the  date  thereof,  with  interest  at 
cent."  The  second  count  is  upon  a  certificate  for  a  deposit 
':-i  by  H.  Easton,  and  byb' 
i);  ;  -  to  the  piaintifi:.    Then  f> 

counts. 

The  copy  of  the  certificate  of  deposit  shows  that  it  was  issued  on 
the  first  of  January,  1857,  by  H.  Easton,  treasurer,  to  himself  for 
five    ■     '     nd  dollars,  payable  to  his  order  six  months  after  date, 
at  six  per  cent.,  and  bv  him  endorsed  in  blank. 
e.,  all  the  general  v'.  defendants  pleaded  spec' 

'     the  said   writing  i  was  not  their  act  or 

■'ekiah  Easton  had  nu  pcjwer  or  authority,  as  trer 
m  Association  or  otherwise,  to  sign  or  endorse  thf 
that  he  issued  it  fraudulently  and  corruptly,  wi: 
::e  or  authority  of  the  -'-  *^— '^^^ts,  of  all  which  *!' • 
vvledge  whtn  the  cev  .me  into  their  y 

'  ■  "    "  f  the  Ur   ' 

•  A-   Tlv 


aid  certificat 


Thi-  <•'  ciee  appealed  -.st  be  annulled  and 

ad  this  cotr  cr  such  decree  as  the 

t  of  Wise  f  tered  in  the  cause,  will 

ree  for  ■'  g  to  the  prayer  of  his  bill, 

ircuit  CO-  " 
cversed. 


CHAPTER  V. 

EXTENT,    CONSTRUCTION    AND   EXECUTION   OF   AUTHORITY. 

Section  1. — Special,  General  and  Universal  Agents. 


LOUDON   SAVINGS   FUND   SOCIETY   v.   HAGERSTOWN 
SAVINGS  BANK. 

i860.     Supreme  Court  of  Pennsylvania.     36  Pa.  St.  498. 

Woodward,  J. — The  Hagerstown  Savings  Bank  brought  this  ac- 
tion of  assumpsit  against  William  McGrath  and  his  numerous  co- 
defendants,  as  partners  trading  and  doing  business  under  the  name 
and  style  of  the  Loudon  Savings  Fund  Society.  The  first  count  in 
the  plaintiff's  narr.  is  found  upon  a  "certain  writing  obligatory,  com- 
monly called  a  certificate  of  deposit,  for  the  sum  of  five  thousand 
dollars,  signed  by  H.  Easton,  treasurer  of  said  Loudon  Savings 
Fund  Society  (who  had  full  power  conferred  upon  him  to  do  such 
act),  and  then  and  there  delivered  said  certificate  of  deposit  to  said 
plaintiff,  and  thereby  promised  to  pay  said  plaintiff  said  sum  of  five 
thousand  dollars,  six  months  after  the  date  thereof,  with  interest  at 
six  per  cent."  The  second  count  is  upon  a  certificate  for  a  deposit 
of  like  sum,  made  by  H.  Easton,  and  by  him  endorsed,  but  delivered 
by  the  defendants  to  the  plaintiff.  Then  followed  the  common  money 
counts. 

The  copy  of  the  certificate  of  deposit  shows  that  it  was  issued  on 
the  first  of  January,  1857,  by  H.  Easton,  treasurer,  to  himself  for 
five  thousand  dollars,  payable  to  his  order  six  months  after  date, 
with  interest  at  six  per  cent.,  and  by  him  endorsed  in  blank. 

Besides  all  the  general  pleas,  the  defendants  pleaded  specially : 

1.  That  the   said   writing  obligatory   was   not   their  act   or   deed; 

2.  That  Hezekiah  Easton  had  no  power  or  authority,  as  treasurer 
of  the  Loudon  Association  or  otherwise,  to  sign  or  endorse  the  cer- 
tificate, and  that  he  issued  it  fraudulently  and  corruptly,  without 
the  knowledge  or  authority  of  the  defendants,  of  all  which  the  plain- 
tiff had  knowledge  when  the  certificate  came  into  their  possession ; 

3.  That  Hezekiah  Easton  was  not  treasurer  of  the  Loudon  Savings 
Fund  Society  when  the  said  writing  was  made ;  4.  That  the  defend- 
ants did  not  make  said  paper,  nor  deliver  the  same  to  the  plaintiff ; 
5.  That  Easton  did  not  deposit  the  five  thousand  dollars  mentioned 
in  said  certificate,  but  was  largely  indebted  to  said  society ;  6.    That 

107 


io8 


EXECUTION    OF   AUTHORITY. 


the  plaintiff  is  not  a  bona  fide  holder  of  said  certificate  for  value ; 
7.  That  the  proceeds  of  said  certificate  did  not  go  into  the  business 
of  the  defendants,  but  were  appropriated  by  said  Easton,  and  that 
the  plaintiff  knew  such  use  of  the  funds  was  intended.  By  means 
of  these  numerous  pleas,  and  the  points  submitted  on  the  one  side 
and  the  other,  the  case  was  presented  in  every  possible  aspect. 

On  the  trial  of  the  cause  the  learned  judge  directed  the  jury  to 
return  a  verdict  for  the  amount  of  the  plaintiff's  claim,  and  declined 
to  submit  any  question  of  fact  for  their  decision.  To  the  admission 
of  evidence,  and  the  refusal  of  the  court  to  give  instructions  prayed 
for,  sixteen  errors  are  assigned,  which  I  do  not  propose  to  consider 
in  consecutive  order,  though  all  that  is  material  in  them  shall  be 
noticed. 

It  is  apparent  that  the  great  question  raised  upon  the  record  had 
reference  to  the  character  and  extent  of  Easton's  authority  as  the 
agent  of  the  defendants.  The  party  who  avails  himself  of  the  act  of 
an  agent  must,  in  order  to  charge  the  principal,  prove  the  authority 
under  which  the  act  is  done.  If  the  authority  be  created  by  power  of 
attorney  or  other  writing,  the  instrument  itself  must  in  general  be 
produced ;  and  since  the  construction  of  writings  belongs  to  the 
court,  and  not  to  the  jury,  the  fact  and  scope  of  the  agency  are,  in 
such  cases,  questions  of  law,  and  are  properly  decided  by  the  judge. 
But  the  authority  may  be  by  parol  or  it  may  be  implied  from  the  con- 
duct of  the  employer  in  sanctioning  the  credit  given  to  a  person 
acting  in  his  name.  And  in  many  cases  the  acts  of  an  agent,  though 
not  in  conformity  to  his  authority,  may  yet  be  binding  upon  his  em- 
ployer, who  is  left,  in  such  cases,  to  seek  his  remedy  against  his 
agent.  Whether  an  employer  be  or  be  not  bound  by  such  acts  as  are 
not  conformable  to  the  commission  given  by  him  depends  principally 
upon  the  authority  being  general  or  special.  By  a  general  agent  is 
understood,  not  merely  a  person  substituted  in  the  place  of  another 
for  transacting  all  manner  of  business,  but  a  person  whom  a  man 
puts  in  his  place  to  transact  all  his  business  of  a  particular  kind,  as 
to  buy  and  sell  certain  kinds  of  wares,  to  negotiate  certain  contracts, 
and  the  like.  An  authority  of  this  kind  empowers  the  agent  to  bind 
his  employer  by  all  acts  within  the  scope  of  his  employment,  and 
that  power  cannot  be  limited  by  any  private  order  or  restriction  not 
known  to  the  party  dealing  with  the  agent.  A  special  agent  is  one 
who  is  employed  about  one  specific  act,  or  certain  specific  acts  only, 
and  he  does  not  bind  his  employer  unless  his  authority  be  strictly 
pursued.  Paley  on  Agency,  199  et  seq.  "A  general  authority,"  said 
Lord  Ellenbo rough  in  Whitehead  v.  Tuckett,  15  East  408,  "does 
not  import  an  unqualified  one,  but  that  which  is  derived  from  a 
multitude  of  instances ;  whereas  a  particular  authority  is  confined 
to  an  individual  instance."  And  in  all  instances  where  the  authority, 
whether  general  or  special,  is  to  be  implied  from  the  conduct  of  the 
principal,  or  where  the  medium  of  proof  of  agency  is  per  testes,  the 


SPECIAL,    GENEILcV' 

ud^t  of  the  credibili  es  and  of  the  iraplica- 

' .  from  their  testing /i^v. 
if  here  did  not  produce  any  written  evider 
,  it  was  the  duty  of  the  court  to  w' 
agency,  express  or  implied,  special  < 
;  the  questions:    i.  Whether  the 

,...x..w    ,.,..  .-P-  was  either  the  general  or  specia.  .  . .. 

fendants ;  and  2.    vVhether  the  issuing  of  the  certificate  in  suit  was 
within  thv  .->ct;i)c  of  his  authority. 

Peries  v.    \ycinena,  3  Watts  <>  Jordan  v.  Stewart,  23  Pa. 

St.  247;  Seklc  V.  Irwin,  30  id.  573,   Williams  v.  Getty,  31  if' 
(72  Am.  Dec.  757.)^     *     *     * 

he  judgment  is  reversed  and  a  venire  facias  de  novo  is  awarded. - 


OVi:.I<. 


?.s  AND  Appeals  of  New  Jersey. 
^^,3  .V.  J.  L.  463. 

— Un  the  a  no  objections  were  taken   to  the 

iciples  of  law  y  the  supreme  court  as  determining 

iity  of  a  principal  fur  the  acts  of  his  agent.    The  bill  of  ex- 
-  raises  the  question  whether  the  judge  was  justified  in  in- 
•■:.^  the  iur\-,  in  conformity  with  that  opinion,  that  upon  the 
-  iuoved  the  plaintiff-  -  ■  -  ■  "ot  entitled  to  recover,  wit1      '  ' 
any  questions  of  fr,  jury.     The  notes  were 

"■ndant's  name,  by  lii.s  wife,  without  his  knov  ' 
d  were  loaned  by  her,  without  lier  husband's 
Holmes,  as  a  means  of  raising  money  for  hi. 
is  in  both  suits  had  knowledge  that  the  notes 
lation,  or  lent  paper,  for  the  benefit  of  John  R.  Hoi 
■'^►•'"^v-    is  not  embarrassed  by  fi----  .•^..-  ;--        ,,..    ^^^..^  . 
fact  that  the  holder  of  ..  !S  a  bon:i 

vithoiit  notice  of  the  purpose  lor   vviucii  11  was  ■      ' 
n  is  purely  one  of  the  authority  of  the  wife  to  bir. 
'  by  sigTiing  these  notes. 


■O. 


d  certificate  for  value; 

ot  g;o  into  the  business 

said  Ea'^ton,  and  that 

was  intended.     By  means 

submitted  on  the  one  side 

^'ery  possible  aspect. 

judge  directed  the  jury  to 

aintiff's  claim,  anci  declined 

iecision.    To  the  admission 

.  to  give  instructions  prayed 

h  i  do  not  propose  to  consider 

'    i>    nini^ii'tl    in    f'lien)    '^IimII   1>r 


to  an 


nt  of  Easton's  authority  as  the 

•  jf  of  the  act  of 

e  the  authority 

ed  by  power  of 

in  g^eneral  be 

:telongs  to  the 

aj^ency  are,  in 

!  ^y  the  judge. 

It  way  •:.  '  from  the  cori- 

:  the  cr  ■'  *n  a  person 

hough 

lis  em- 

'ly  against  his 

..  ;.,,;  L,o;.  .,;  I.,  such  acts  as  are 

iven  by  him  depends  principally 

special.    By  a  general  agent  is 

=;tituted  in  the  place  of  another 

but  a  person  whom  a  man 

OSS  of  a  particular  kind,  as 

negotiate  certain  contracts, 

.v,nowers  the  agent  to  bind 

'f  his  employment,  and 

order  or  restriction  not 

A.  special  agent  is  one 

.  cific  acts  only, 

.        rity  be  strictly 

general  authority,"  said 

t,  T5  East  408,  "does 

ich  is  derived  from. a 

Mithority  is  confined 

-here  the  authority, 

the  conduct  of  the 

y  i.s  per  testes,  the 


SPECIAL,    GENERAL   AND    UNIVERSAL.  IO9 

jury  are  to  judge  of  the  credibility  of  witnesses  and  of  the  impHca- 
tions  to  be  made  from  their  testimony. 

As  the  plaintiff  here  did  not  produce  any  written  evidence  of 
Easton's  agency,  it  was  the  duty  of  the  court  to  inform  the  jury 
what  constitutes  agency,  express  or  implied,  special  or  general,  and 
to  refer  to  them  the  questions:  i.  Whether  the  evidence  satisfied 
them  that  Easton  was  either  the  general  or  special  agent  of  the  de- 
fendants; and  2.  Whether  the  issuing  of  the  certificate  in  suit  was 
within  the  scope  of  his  authority. 

Peries  v.  Aycinena,  3  Watts  &  S.  79 ;  Jordan  v.  Stewart,  23  Pa. 
St.  247;  Sekle  v.  Irwin,  30  id.  573;  Williams  v.  Getty,  31  id.  461 
(72  Am.  Dec.  757.)^     *     =1=     * 

The  judgment  is  reversed  and  a  venire  facias  de  novo  is  awarded.^ 


GULICK  AND  HOLMES  v.  GROVER. 
HOLMES  V.  GROVER. 

1868.     Court  of  Errors  and  Appeals  of  New  Jersey. 
33  N.  J.  L.  463. 

Depue,  J. — On  the  argument,  no  objections  were  taken  to  the 
general  principles  of  law  stated  by  the  supreme  court  as  determining 
the  liability  of  a  principal  for  the  acts  of  his  agent.  The  bill  of  ex- 
ceptions raises  the  question  whether  the  judge  was  justified  in  in- 
structing the  jury,  in  conformity  with  that  opinion,  that  upon  the 
facts  proved  the  plaintiffs  were  not  entitled  to  recover,  without  leav- 
ing any  questions  of  fact  to  the  jury.  The  notes  were  signed  in 
the  defendant's  name,  by  his  wife,  without  his  knowledge  or  con- 
sent, and  were  loaned  by  her,  without  her  husband's  knowledge,  to 
John  R.  Holmes,  as  a  means  of  raising  money  for  his  benefit.  The 
plaintiffs  in  both  suits  had  knowledge  that  the  notes  were  mere  ac- 
commodation, or  lent  paper,  for  the  benefit  of  John  R.  Holmes.  The 
case,  therefore,  is  not  embarrassed  by  those  considerations  which 
arise  out  of  the  fact  that  the  holder  of  a  negotiable  note  is  a  bona 
ade  holder  without  notice  of  the  purpose  for  which  it  was  made. 
The  question  is  purely  one  of  the  authority  of  the  wife  to  bind  the 
husband  by  signing  these  notes. 

^  A  portion  of  the  opinion  is  omitted. 

"See  Wood  v.  McCain,  page  11. 

"Agents  are  said  to  be  'general'  when  their  authority  is  defined  by  their 
character  or  business,  as  in  the  case  of  factors,  brokers,  or  partners ;  or  'spe- 
cial' when  their  authority  is  limited  by  the  terms  of  their  appointment."  Hol- 
land, Jurisprudence,   (9th  ed.)   260. 

"Agents  may  be  clothed  either  with  general  or  special  powers.  First.  A 
general  agent  may  do  everything  which  the  principal  ma3\  Powers  of  this 
sort  are  not  usually  granted.  Second.  Of  the  second  sort  are  agents  limited 
as  to  the  objects  or  the  business  to  be  done,  and  left  at  large  as  to  the  mode 
of  transacting  it."    Pendleton,  J.,  in  Hooe  v.  Oxley,  i  Wash.  (Va.)  19,  23. 


no  EXECUTION    OF   AUTHORITY. 

The  liability  of  the  husband,  on  the  argument,  was  put  by  the 
counsel  on  three  grounds:  i.  That  the  making  of  these  notes,  for 
the  purpose  for  which  they  were  used,  was  within  the  scope  of  her 
authority,  as  evidenced  by  the  course  of  her  usual  employment; 
2.  That  the  defendant  held  his  wife  out  to  the  plaintiffs  as  having 
competent  authority  to  affix  his  name  to  notes  for  all  purposes  what- 
soever ;  and  3.  That  the  notes,  though  invalid  against  him  when  made, 
became  valid  obligations  by  a  subsequent  ratification. 

It  appears  from  the  evidence  that  the  wife  was  formerly  in  the 
wine  business,  which  was  conducted  by  her  in  her  husband's  name, 
and  at  the  time  of  the  making  of  the  notes  the  defendant  was  in  the 
drug  business  at  New  Brunswick,  which  was  carried  on  in  his  son's 
name,  but  the  defendant  was  the  owner  of  the  goods  put  in  the  busi- 
ness, and  furnished  the  capital  with  which  it  was  conducted.  The 
wife  was  the  manager  of  the  business,  and  attended  chiefly  to  the 
buying  and  selling.  The  moneys  received  were  deposited  by  her  in 
the  banks,  in  his  name,  and  were  drawn  out  frequently  on  checks, 
signed  by  her  in  her  husband's  name,  and  she  also  signed  his  name  to 
notes  which  were  given  for  debts  incurred  in  the  course  of  the  busi- 
ness. Some  of  these  transactions  in  relation  to  the  wine  businesb 
were  had  with  the  firm  who  are  the  plaintififs  in  one  of  these  suits 
and  extended  down  to  about  the  time  of  the  making  of  these  notes, 
when  their  accounts  were  closed  by  a  note  signed  by  the  wife  in  the 
name  of  the  husband.  This  use  of  his  name  by  his  wife  was  known 
to  him,  and  the  notes  so  given  were  paid  by  him,  or  by  her  out  of 
his  funds. 

It  may  be  stated,  as  the  result  of  the  evidence,  that  in  the  usual 
business  of  the  defendant,  his  wife  was  his  general  agent  and  was, 
with  his  knowledge  and  consent,  accustomed  to  sign  his  name  to 
notes  and  checks  made  in  the  course  of  such  business.  But  it  does 
not  appear  that  the  wife  ever,  except  in  the  instances  of  these  two 
notes,  signed  her  husband's  name  to  accommodation  paper,  or  used 
it  as  security  for  other  persons.  From  this  general  authority  would 
result  a  liability  of  the  husband  for  all  notes  made  by  her  in  his 
name  in  the  course  of  his  general  business ;  but  that  liability  would 
extend  no  further  than  to  include  such  notes  as  were  given  in  the 
usual  course  of  business.  I  take  the  rule  to  be  well  settled  that  the 
authority  to  sign  accommodation  paper,  or  as  security  for  a  third 
person,  must  be  specially  given,  unless  the  authority  of  the  agent 
is  one  of  universal  agency,  and  will  not  flow  from  any  general  au- 
thority to  transact  business  for  the  principal.  The  making  of  ac- 
commodation paper,  or  the  loan  of  one's  name  as  security  for  an- 
other does  not  fall  within  the  ordinary  business  in  which  persons 
engage.  The  authority  to  use  a  principal's  name  for  that  purpose  is 
not  established  by  proof  of  an  agency,  however  general,  in  the  trans- 
action of  the  principal's  business,  even  though  in  connection  with 
such  business  it  be  shown  that  the  agent  was  authorized  to  make 


-PECIAL,    gen:  Iir 

.iotes  in  the  name  ot  his  principal.    To  validate  such  }. 

'-"^^•^11  that  the  agent  Avas  authorized  to  make  use  ^./  ;m-  ,      . 
rne  for  that  purpo>e;  and  his  authority  must  either  be  e   • 
'ted  from  proof  that  he  was  accusl  ith  the  prin- 

t,  to  use  his  name  for  the  acco;.  »  of  other?. 

j^CiiL  who  is  .  I  to  draw  and  endorse  ii<.>te.-<, 

rse  and  accc;  f  exchange,  can  act  under  svi 

nly  to  the  extent  of  his  principal's  business,  and  is  not  authorized 
.  nr;vA-    endorse  or  accept  them  for  "the  accomm'   '''""     >"  !^'--i  .- 

Story  on  z\gency,  §  69 ;  Bank  of  Hamlv 

iMLi;  42;  Odiorne  v.  Maxey,  13  Mass.  181;  Noru.    -r       r:.,::J.^  v. 

Vyiner,  3  Hill  262';  Steinbach  v.  Read,  11  Gratt.  281  :  Knip^sley  y. 

State  Bank,  3  Yerg,  107;  Wallace  v.  B- 

Tho  evidence  relied  on  to  fix  tlic  di  .   of 

;•  held  his  wife  out  as  having  an  audionty  which  would  in- 

power  to  make  these  notes  in  her  husband's  name,  is  that 

t  Francis  IT   I[(''i:i;ts  and  James  C.  Gulick,  the  plaintiffs  in  one  of 

.....  ...         ••,[f.  Francis  H.  Holmes  s.ays:    "I  have  known  John 

v-five  years;  dealt  with  him  that  time;  I  purchased 

r  first;  I  paid  some  money  and  some  notes;  Mary 

.  .icted  his  business;  he  said,  in  1838,  what  his  wife 

..  a  buaiuess  way  was  right — ^lie  sanctioned  it." 

.  James  C.  Gulick  says:   "I  have  known  defendant  since  May, 

he  has  dealt  with  me  from  that  time  to  time  notes  in  suit  were 

..  ii.  off  and  on;  Mr.  Grover  was  engaged  in  wine  business;  the 

purchases  he  made  of  us  were  in  that  business;  during  that  time 

'ver  acted  in  that  business  with  me,  representing  her  hus- 

■  goods  were  paid  for  in  notes  and  checks.     Mrs.  Grover 

._  business — bought,  paid  and  gave  the  notes ;  John  Grover's 

signed  to  those  notes ;  I  was  at  John  Grover's  residence 

;:,  1849 ;  I  spoke  to  him  about  the  way  his  wife  was  doing 

.vith  us;  I  asked  him  if  his  wife,  transacting  and  doing 

n  his  name,  was  all  right ;  he  said  it  was— it  was  the  same 

id  it  himself — whatever  she  did  was  right ;  after  that  time, 

aed  to  do  business  in  the  same  way ;  notes  and  checks  were 

'  John  Grover';  it  was  all  done  by  Mrs.  Grover,  in  her 

ne;  from  that  time  to  the  present,  John  Grover  his 

'nanded  those  instructions." 

ts  rely  upon  these  general  expressions  c-,    .  ...v  ..^.v  ., 

ry  the  defendant  had  conferred  on  his  wife  as  declarn 
y..:  was  empowered  to  use  his  name  in  her  disc; 
riori,  for  all  purposes,  at  her  pleasure;  and  th^ir 
'■e  to  thf 
ed  that  ; 
Mc  evidence  ot  an  e;  no 

\\'  of  con.siructiii;-!. 


EXECUT. 


of  the  husb 


■•  |i  uriictr' 
ondant 
uuioritv  ' 
.  3.  Tha'^  ■ 
v'ciltid  ob' 


isiness 


•  ;ncnt.  was  put.  by  the 

....  ang^  of  these  notes,  for 

>  d,  was  within  the  scope  of  her 

'"  ^er  usual  employment; 

he  plaintiffs  as  having 

for  all  purposes  what- 

t gainst  him  when  made, 

latitication. 

_  wife  was  formerly  in  the 

L>y  her  in  her  husband's  name, 

notes  the  defendant  was  in  the 

'  ich  was  carried  on  in  his  son's 

t-r  of  the  goods  put  in  the  busi- 

vvhich  it  w^«  conducted.    The 

.ss,  and  ^  chiefly  to.  the 

cived  w  ^     -ited  by  her  in 

frequently  on  checks, 

,  .u..i  ...  ;ilso  signed  his  name  to 

iirred  in  the  course  of  the  busi- 

■  s  m  re':'  '      wine  business 

the  pb'^-  of  these  suits 

'■'   :  f  these  notes, 

i  're  wife  in  the 

•  as  known 

-r   out   of 


M-Mcie 


ai- ; 


.ife  was  his  general  agent  and  was, 

'•      iomed  to  sign  his  name  to 

nch  business.     But  it  does 

1,  except  in  the  instances  of  these  two 

Kline  to  accommodation  paper,  or  used 

From  this  general  authority  would 

j.iiu  for  all  notes  made  by  her  in  his 

neral  business.;  but  that  liability  would 

'  :'e  such  notes  as  were  given  in  the 

the  rule  to  b^-  '^k^A^  settled  that  the 

paper,  or   -  "v  a  third 


not  est^. 
action  ■ 
such  b 


,  unless  tbo 
'.vill  not 


n  Tiruicipa' 


ine  age! 


the  agent 
neral  au- 
;.ig  of  ac- 
^■'  for  an- 
'i  persons 
i;urpose  is 
rhe  trans- 
lion  with 
izcd  to  make 


SPECIAL,    GENERAL   AND    UNIVERSAL.  Ill 

notes  in  the  name  of  his  principal.  To  vaHdate  such  paper  it  must 
be  shown  that  the  agent  was  authorized  to  make  use  of  his  prin- 
cipal's name  for  that  purpose ;  and  his  authority  must  either  be  ex- 
press or  implied  from  proof  that  he  was  accustomed,  with  the  prin- 
cipal's consent,  to  use  his  name  for  the  accommodation  of  others. 
An  agent  who  is  authorized  to  draw  and  endorse  notes,  and  to  draw, 
endorse  and  accept  bills  of  exchange,  can  act  under  such  authority 
only  to  the  extent  of  his  principal's  business,  and  is  not  authorized 
to  draw,  endorse  or  accept  them  for  the  accommodation  of  mere 
strangers.  Story  on  Agency,  §  69 ;  Bank  of  Hamburgh  v.  Johnson, 
I  Rich.  42;  Odiorne  v.  Maxey,  13  Mass.  181  ;  North  River  Bank  v. 
Aymer,  3  Hill  262;  Steinbach  v.  Read,  11  Gratt.  281  ;  Kingsley  v. 
State  Bank,  3  Yerg.  107;  Wallace  v.  Branch  Bank,  i  Ala.  565. 

The  evidence  relied  on  to  fix  the  defendant's  liability,  because  of 
his  having  held  his  wife  out  as  having  an  authority  which  would  in- 
clude the  power  to  make  these  notes  in  her  husband's  name,  is  that 
of  Francis  H.  Holmes  and  James  C.  Gulick,  the  plaintiffs  in  one  of 
these  suits.  Mr.  Francis  H.  Holmes  says :  "I  have  known  John 
Grover  twenty-five  years ;  dealt  with  him  that  time ;  I  purchased 
goods  from  Grover  first ;  I  paid  some  money  and  some  notes ;  Mary 
Ann  Grover  transacted  his  business;  he  said,  in  1838,  what  his  wife 
did  in  a  business  way  was  right — he  sanctioned  it." 

Mr.  James  C.  Gulick  says :  "I  have  known  defendant  since  May, 
1848 ;  he  has  dealt  with  me  from  that  time  to  time  notes  in  suit  were 
given,  off  and  on ;  Mr.  Grover  was  engaged  in  wine  business ;  the 
purchases  he  made  of  us  were  in  that  business ;  during  that  time 
Mrs.  Grover  acted  in  that  business  with  me,  representing  her  hus- 
band ;  the  goods  were  paid  for  in  notes  and  checks.  Mrs.  Grover 
did  all  the  business — bought,  paid  and  gave  the  notes  ;  John  Grover's 
name  was  signed  to  those  notes ;  I  was  at  John  Grover's  residence 
in  August,  1849 '  I  spoke  to  him  about  the  way  his  wife  was  doing 
business  with  us ;  I  asked  him  if  his  wife,  transacting  and  doing 
business  in  his  name,  was  all  right ;  he  said  it  was — it  was  the  same 
as  if  he  did  it  himself — whatever  she  did  was  right ;  after  that  time, 
we  continued  to  do  business  in  the  same  way ;  notes  and  checks  were 
given,  signed  John  Grover ;  it  was  all  done  by  Mrs.  Grover,  in  her 
husband's  name ;  from  that  time  to  the  present,  John  Grover  has 
never  countermanded  those  instructions." 

The  plaintiffs  rely  upon  these  general  expressions  as  to  the  extent 
of  the  authority  the  defendant  had  conferred  on  his  wife  as  declara- 
tions that  she  was  empowered  to  use  his  name  in  her  discretion,  with- 
out limitation,  for  all  purposes,  at  her  pleasure ;  and  that  that  author- 
ity, not  being  revoked  by  notice  to  them,  was  still  subsisting  when 
the  notes  were  given,  and  covered  that  particular  transaction.  Treat- 
ing these  expressions  as  the  evidence  of  an  express  authority,  the 
question  becomes  one  merely  of  construction. 


112  EXECUTION    OF   AUTHORITY. 

One  of  these  conversations  took  place  twenty-three  years,  and  the 
other  twelve  years,  before  the  making  of  these  notes. 

At  the  time  of  the  conversation  with  Mr.  Holmes  he  was  in  busi- 
ness at  Cranberry,  in  this  state,  and  his  transactions  with  Grover 
were  in  purchasing  goods  of  him.  At  the  period  referred  to  by  Mr. 
Gulick,  he  and  Mr.  Holmes  were  together  in  the  mercantile  business 
in  New  York,  and  the  dealings  of  the  defendant  with  the  firm  were 
confined  solely  to  the  purchase  by  Mrs.  Grover  of  goods  to  be  used 
in  the  manufacture  of  wines,  which  was  then  carried  on  in  the  hus- 
band's name.  These  dealings  continued  down  to  September,  1858, 
and  were  always  of  the  same  character.  The  conversations  in  which 
these  expressions  were  used  were  directly  in  connection  with  the 
business  then  being  transacted  by  Mr.  Grover  with  the  parties,  and 
had  express  reference  to  the  manner  in  which  Mrs.  Grover  was  using 
her  husband's  name  and  credit  in  the  business.  Obviously,  the  lan- 
guage used  must  be  construed  with  reference  to  the  business  then 
being  transacted  between  the  parties,  and  which  was  then  the  sub- 
ject-matter of  discussion.  And  any  general  expressions  used  by  the 
defendant  in  relation  to  the  extent  of  his  wife's  authority  must  be 
restricted  to  such  business.  A  universal  agency,  such  as  this  is 
claimed  to  have  been,  can  only  be  created  by  clear  and  unequivocal 
language,  and  will  not  be  inferred  from  any  general  expressions, 
however  broad.  Mr.  Justice  Story,  in  his  work  on  Agency,  says : 
"It  may,  perhaps,  be  well  to  add  that  general  agents  are  to  be  care- 
fully distinguished  from  universal  agents  ;  that  is,  from  agents  who 
may  be  appointed  to  do  all  the  acts  which  the  principal  can  personally 
do,  and  which  he  may  lawfully  delegate  the  power  to  another  to  do. 
Such  a  universal  agency  may  potentially  exist ;  but  it  must  be  of  the 
very  rarest  occurrence.  And  indeed  it  is  difficult  to  conceive  of  the 
existence  of  such  an  agent  practically,  inasmuch  as  it  would  be  to 
make  such  an  agent  the  complete  master,  not  merely  dux  fact,  but 
dominns  rcnun,  the  complete  disposer  of  all  the  rights  and  property 
of  the  principal.  It  is  very  certain  that  the  law  will  not,  from  any 
general  expressions,  however  broad,  infer  the  existence  of  any  such 
unusual  agency ;  but  it  will  rather  construe  them  as  restrained  to  the 
principal  business  of  the  party  in  respect  to  which  it  is  presumed  his 
intention  to  delegate  the  authority  was  principally  directed."  Story 
on  Agency,  §  21.  Language,  however  general  in  its  form,  when 
used  in  connection  with  a  particular  subject-matter,  will  be  pre- 
sumed to  be  used  in  subordination  to  that  matter,  and  therefore  is 
to  be  construed  and  limited  accordingly.  Story  on  Agency,  §§  62, 
69;  Rossiter  v.  Rossiter,  8  Wend.  494  (24  Am.  Dec.  62)  ;  i  Am. 
Lead.  Gas.,  4th  ed.,  566. 

A  letter  of  attorney  authorizing  one  to  issue  notes  in  the  name  of 
the  principal  will  be  construed  as  extending  only  to  notes  issued  in 
the  business  of  the  principal,  or  for  his  benefit.    If  the  intent  be  that 


cipal. 


SPECIAL,   G! 

)rnev  mav  issue  notes  for  his  own  benefit,  or  the  benefit  of 


Uee<j.-i   1  to  autiiuiizc  a  iii  oi 

of  the  ;'nt  in  a  particui  do  all 

h  the  constituent  could  s  not  au- 


>   An    ar 

349;  Attwood  v.  Munnings,  7  Bam.  &  C.  278; 
ttled  rules  of  construction,  it  is  manifest  that  th 

:ti  in  wnicii 


id  acco.  OS  of  co: 


^y  to  bind  his  p»"ii 


undis).  question  wheth: 

^'  'oa.!  is  a  c"  - 


'it  to  be 
ulu  not  i'ecowcv  on  tiic^c 


ro  by  V. 

sines-s 

were 

used 

^:  hus- 

down  t  Licr,  1858, 

'■'•  '■■>'    -. .,..  ...-lis  in  whic^'' 

mnection  with  t' 

he  parties,  ana 

ver  was  using 

':',  the  lan- 

-iness  then 

was  then  the  sub- 

-  inns  used  by  the 

iority  must  be 

'  b   as  this  is 

lequivocal 


a?  it  would  he 


^traihed  to  the 


'111.   wlicn 
i   be  nre- 


at  be  that 


SPECIAL,    GENERAL   AND    UNIVERSAL.  II3 

the  attorney  may  issue  notes  for  his  own  benefit,  or  the  benefit  of  a 
third  person,  the  authority  must  expressly  so  declare.  North  River 
Bank  v.  Aymar,  3  Hill  262.  A  power  of  attorney  to  collect  debts, 
to  execute  deeds  for  lands,  to  authorize  a  complete  adjustment  of 
all  concerns  of  the  constituent  in  a  particular  place,  and  to  do  all 
other  acts  which  the  constituent  could  do  in  person,  does  not  au- 
thorize the  giving  of  a  note  by  the  attorney  in  the  name  of  the  prin- 
cipal. Rossiter  v.  Rossiter,  8  Wend.  494  (24  Am.  Dec.  62).  A 
letter  of  attorney  to  ask,  demand  and  receive  of  the  E.  I.  Company 
all  money  that  might  become  due  the  principal,  on  any  account 
whatsoever,  and  to  transact  all  business,  will  not  authorize  the  at- 
torney to  endorse  away  a  bill  taken  by  him  under  this  power.  The 
words  "all  business"  must  be  confined  to  all  business  necessary  for 
the  receipt  of  the  money.  Hay  v.  Goldschmidt,  cited  in  Hogg  v. 
Smith,  I  Taunt.  349 ;  Attwood  v.  Munnings,  7  Barn.  &  C.  278 ; 
Chitty  on  Bills,  29. 

Adopting  these  settled  rules  of  construction,  it  is  manifest  that  the 
expressions  of  the  defendant  as  to  his  wife's  unlimited  power  to 
act  for  him  in  his  name  must  be  referred  to  the  general  business  he 
was  then  engaged  in  and  in  which  he  might  subsequently  engage. 
That  the  notes  were  taken  in  the  belief  that  she  had  the  authority  to 
make  them  is  immaterial.  The  material  question  is,  what  authority, 
in  point  of  fact,  did  the  husband  confer  on  his  wife  by  the  language 
he  used,  construed  according  to  the  recognized  rules  of  construction  ? 
The  act  done  was  one  requiring  a  special  authority,  and  a  party  deal- 
ing with  an  agent,  and  knowing  the  nature  of  the  act,  must  see  to 
it  that  the  agent  possesses  the  requisite  authority  to  bind  his  principal. 

The  burden  of  proof  lies  on  him.^     *     *     * 

When  the  facts  are  undisputed,  the  question  whether  an  agent  has 
the  requisite  authority  to  bind  his  principal  is  a  question  of  law  for 
the  court,  whether  such  authority  is  sought  to  be  sustained  by  a  pre- 
vious authorization  or  by  subsequent  ratification.  Under  the  ad- 
mitted or  uncontroverted  facts  in  these  cases  the  judge  properly  in- 
structed the  jury  that  the  plaintiffs  could  not  recover  on  these  notes. 

The  judgment  must  be  affirmed. - 

^  A  portion  of  the  opinion  is  omitted. 

'"The  distinction  between  a  general  and  special  agent  is  well  settled ;  the  acts 
of  the  former  bind  the  principal  whether  in  accordance  to  his  instructions  or 
not ;  those  of  the  latter  do  not  unless  strictly  within  his  authority."  Savage, 
C.  J.,  in  Rossiter  v.  Rossiter,  8  Wend.  (N.  Y.)  494,  497. 


8 — Reinhard  Cases. 


114  EXECUTION    OF   AUTHORITY. 

Section  2. — Rules  of  Construction. 

ATWOOD  V.  MUNNINGS. 
1827.     Court  of  King's  Bench.     7  B.  &  C.  278. 

Assumpsit  by  the  plaintiffs,  as  indorsees,  against  the  defendant, 
as  accepter,  of  a  bill  of  exchange  for  1560/.  Plea,  the  general 
issue.  At  the  trial  before  Lord  Tenterden,  C.  J.,  at  the  London  sit- 
tings after  Michaelmas  term,  1823,  a  verdict  was  found  for  the 
plaintiffs,  subject  to  the  opinion  of  this  court  on  the  following  case : 

The  plaintiffs  were  bankers,  carrying  on  business  in  the  city  of 
London  ;  the  defendant  was  a  merchant  engaged  in  extensive  mercan- 
tile business,  and  also,  in  joint  speculations  to  a  considerable  amount, 
with  Thomas  Burleigh,  Messrs.  Bridges  and  Elmer,  S.  Howlett  and 
W.  Rothery.  In  the  year  181 5  the  defendant  went  abroad  on  the 
partnership  business  and  remained  abroad  till  after  the  bill  upon 
which  this  action  was  brought  became  due.  By  a  power  of  attorney 
dated  the  i8th  of  May,  1816,  the  defendant  granted  power  to  W. 
Rothery,  T.  Burleigh  and  S.  Munnings,  his  wife,  jointly  and  severally 
for  him,  and  in  his  name,  and  to  his  use,  to  sue  for  and  get  in  moneys 
and  goods,  to  take  proceedings  and  bring  actions,  to  enforce  payment 
of  moneys  due,  to  defend  actions,  settle  accounts,  submit  disputes  to 
arbitration,  sign  receipts  for  money,  accept  compositions,  "indorse, 
negotiate  and  discount  or  acquit  and  discharge  the  bills  of  exchange, 
promissory  notes  or  other  negotiable  securities  which  were  or  should 
he  payable  to  him,  and  should  need  and  require  his  endorsement ;"  to 
sell  his  ships,  execute  bills  of  sale,  hire  on  freight,  effect  insurances, 
"buy,  sell,  barter,  exchange,  export  and  import  all  goods,  wares  and 
merchandises,  and  to  trade  in  and  deal  in  the  same  in  such  manner 
as  should  be  deemed  most  for  his  interest ;  and  generally  for  him  and 
in  his  name,  place,  and  stead,  and  as  his  act  and  deed,  or  otherwise, 
but  to  his  use,  to  make,  do,  execvite,  transact,  perform  and  accomplish 
all  and  singular  such  further  and  other  acts,  deeds,  matters  and 
things  as  should  be  requisite,  expedient  and  advisable  to  be  done  in 
and  about  the  premises,  and  all  other  his  affairs  and  concerns,  and  as 
he  might  or  could  do  if  personally  acting  therein."  By  another  power 
of  attorney,  dated  the  23d  of  July,  18 17,  and  executed  by  the 
defendant  when  abroad,  he  gave  to  his  wife,  S.  Munnings,  power 
to  do  a  variety  of  acts  affecting  his  real  and  personal  property ;  "and 
also  for  him,  and  on  his  behalf,  to  pay  and  accept  such  bill  or  bills 
of  exchange  as  should  be  drawn  or  charged  on  him  by  his  agents  or 
correspondents,  as  occasion  shall  require,  etc. ;  and  generally  to  do, 
negotiate  and  transact  the  affairs  and  business  of  him,  defendant, 
during  his  absence,  as  fully  and  effectually  as  if  he  were  present  and 
acting  therein."  T.  Burleigh  corresponded  with  the  defendant  and 
acted  as  his  agent,  both  before  and  after  the  receipt  of  this  power. 


115 

.       iiyed  part  of  f^l:c  ijroduce         . 

individual  concerns,  an«'  his  absence 

P  Li rpose  of  raising  money  t(=  ;ie  creditors 

n,  who  were  becoming  urgeir  nir  bills  of 

5001;  each  upon  the  defendant,  <'  v  22,  1819. 

of  tb'^^e  bil!=  Mere  af>plied  in  pa^  iiartnership 

ant  by  p  \I  , 

^ard,  in  ■  cy 

i  fills,  drawn  and  accepted  in  the  ■                       ti: 

date  pay  to  my  order  1560/,  f^'  d: 

.  ■             pted  per  procuration  of  G.  (  -S. 

>  bill  was  discounted  by  the  H"    ue- 

:o  England  in  October,  1821,  nd  each  of 

i.rs  10  the  joint  speculations,  claimed  to  be  a                  on 

'aintiflfs.     The  question  is,  whether,  under  either 

ittomey,  the  defendant's  wife  was  authorized  to 

liy  Thomas  Burleigh,  to  raise  money  to  discharge 

,    ine  partners  in  the  joint  concern?     By  the  second 

-  authority  was  given  to  Mrs.  M.  to  accept  bills  drawn 

\e  defendant  as  occasion  might  require.    Burleigh,  tiic 

>rid  to  have  acted  as  agent  of  the  defendant,  and,  there- 

ihe   only   circumstance   necessary   to   complete   the   authority 

■^how  that  occasion  did  require  that  the  bill  should  be  drawn. 

however,  cannot  affect  third  persons.    They  are  bound  to  see 

-'    I-  to  accept,  but  not  to  ascertain  how  far  the  bill  was  neces- 

vcrs  are  often  construed  differently  as  to  the  attorney  ar^d 

ons.     In  Howard  v.  Baillie  (a),  Eyre,  C.  J..  ',  -n- 

:  a  power  to  pay  debts  in  course  of  administ'  v- 

contract  before  a  specialty  debt  wo^^  yd, 

,  but  not  as  to  the  attorney.    It  is  not  :  for 

:ers  to  have  such  a  knowledge  of  the  party's  affairs  as  to  be 

!  to  judge  whether  the  occasion  did  ma'  -  '''■■  ''11  requisite. 

r,  of  course,  has  such  knowledge,  and  '  -  as  to  this 

lered  as  directory  only.    The  pan,  lo  protected  b> 

of  his  '■iwn  3'^r'^nt,  and  may  derive  gre^.t  bene^.^ 

t  bills  in  cases  of 

The  power  in  q 

iS  if  the  words  "at  the  discretion  of  my  attornev,''  or, 

■  <hr.V.  th'.Ml'  ftv  "  h^(\  been  inserted  instead  •' '     ^ 

'  ds  had  been  "as  shall  b- 

u  LUL  1(111  T/iimit  have  prevailed.     '^'.  r 

'  .ny  V.  Hensley   (b),  differs  frnm  '  ;  r. 

'  and  lim 

tn  h'v.V  ' 


EX^ 


•vUTHORITV, 


>  2, — Rules  of  Constn 


as  accepter,  oi 
issue.    At  tb'^''  ■ 
tinpi  alter 
piainti''^' 

Till 
L 
tit' 


merchi' 
as  should  Iv 

■.■'.    h'^   n',,v,,: 


■iiri<?'~ 


'   the  defendant, 

tor   I50o«.     Plea,   the  general 

>erden,  C.  J.,  at  the  London  sit- 

,  a  verdict  was  found  for  the 

:.s  court  on  the  following  case  : 

•^  ins:  on  business  in  the  city  of 

'd  in  extensive  mercan- 

'       '  a  considerable  amount, 

ges  and  Ellmer,  S.  Howlett  and 

....  defendant  went  abroad  on  the 

ued  abroad  till  after  the  bill  upon 

■••       ■'  -      :-ver  of  attorney 

1  power  to  W. 

' .  and  severally 

'  cret  in  moneys 

f^  payment 

.isputes  to 

ney,  accept  "indorse, 

and  dischar;;  ■  "-hang-e, 

able  securiti:  -hould 

:       '  ^t;"to 

.  ances. 

Ha  iUipori  ail  goods,  wares  and 

i.al  in  the  same  in  such  manner 

rest ;  and  generally  for  him  and 

his  act  and  deed,  or  otherwise, 

;  ansact,  perform  and  accomplish 

'  '"r  acts,  deeds,  matters  and 

ind  advisable  to  be  done  in 

•ncerns.  and  as 

another  power 

ccuted  by  the 

•■"'ngs,  power 

erty ;  "and 

■:  iiill  or  bills 

:  his  agents  or 

'.i  generally  to  do, 

>f  him,  defendant. 

■  were  present  and 

'I',   defendant  and 

cnt,  botn  bei  of  this  power. 


V,    dated 


'  .    >. '  i  1    11 

should  > 
as  occa 

r?>nsact   ; 


RULES   OF    CONSTRUCTION.  II5 

The  defendant,  while  abroad,  employed  part  of  the  produce  of  the 
joint  speculations  in  his  individual  concerns,  and  during-  his  absence 
T.  Burleigh,  for  the  purpose  of  raising  money  to  pay  to  the  creditors 
of  the  joint  concern,  who  were  becoming  urgent,  drew  four  bills  of 
exchange  for  500/  each  upon  the  defendant,  dated  May  22,  1819. 
The  proceeds  of  those  bills  were  applied  in  payment  of  partnership 
debts ;  they  were  accepted  by  the  defendant  by  procuration  of  S.  M., 
his  wife.  The  bill  in  question  was  afterward,  in  order  to  raise  money 
to  take  up  those  bills,  drawn  and  accepted  in  the  following  form : 
"Six  months  after  date  pay  to  my  order  1560/,  for  value  received: 
T.  Burleigh.  Accepted  per  procuration  of  G.  G.  H.  Munnings — S. 
Munnings."  This  bill  was  discounted  by  the  plaintiffs.  The  de- 
fendant returned  to  England  in  October,  1821,  and  he,  and  each  of 
the  partners  to  the  joint  speculations,  claimed  to  be  a  creditor  on 
that  concern. 

Parke  for  the  plaintiffs.  The  question  is,  whether,  under  either 
of  the  powers  of  attorney,  the  defendant's  wife  was  authorized  to 
accept  bills  drawn  by  Thomas  Burleigh,  to  raise  money  to  discharge 
debts  owing  by  the  partners  in  the  joint  concern?  By  the  second 
power  express  authority  was  given  to  Mrs.  M.  to  accept  bills  drawn 
by  agents  of  the  defendant  as  occasion  might  require.  Burleigh,  the 
drawer,  is  found  to  have  acted  as  agent  of  the  defendant,  and,  there- 
fore, the  only  circumstance  necessary  to  complete  the  authority 
is  to  show  that  occasion  did  require  that  the  bill  should  be  drawn. 
That,  however,  cannot  affect  third  persons.  They  are  bound  to  see 
the  power  to  accept,  but  not  to  ascertain  how  far  the  bill  was  neces- 
sary. Powers  are  often  construed  differently  as  to  the  attorney  and 
third  persons.  In  Howard  v.  Baillie  (a).  Eyre,  C.  J.,  puts  an  in- 
stance, viz. :  a  power  to  pay  debts  in  course  of  administration ;  pay- 
ment of  a  simple  contract  before  a  specialty  debt  would  be  good, 
quoad  the  creditor,  but  not  as  to  the  attorney.  It  is  not  possible  for 
strangers  to  have  such  a  knowledge  of  the  party's  affairs  as  to  be 
enabled  to  judge  whether  the  occasion  did  make  the  bill  requisite. 
The  agent,  of  course,  has  such  knowledge,  and  the  power  as  to  this 
part  must  be  considered  as  directory  only.  The  party  is  protected  by 
having  the  choice  of  his  own  agent,  and  may  derive  great  benefit 
from  giving  him  power  to  draw  or  accept  bills  in  cases  of  expediency 
as  well  as  in  cases  of  absolute  necessity.  The  power  in  question  may 
fairly  be  read  as  if  the  words  "at  the  discretion  of  my  attorney,"  or, 
"as  my  attorney  shall  think  fit,"  had  been  inserted  instead  of  "as 
occasion  shall  require."  If  the  words  had  been  "as  shall  be  neces- 
sary," a  different  construction  might  have  prevailed.  The  case  of 
The  East  India  Company  v.  Hensley  (b),  differs  from  the  present. 
There  the  agent  had  a  special  and  limited  power  to  buy  silk  of  a 
particular  quality.  If  the  order  to  him  had  been  general,  to  purchase 
such  silk  as  occasion  should  require,  and  he  had  bought  silk  of  a 
second  quality,  although  the  occasion  required  him  to  buy  it  of  the 


Il6  EXECUTION  OF  AUTHORITY. 

first,  the  principal  would  have  been  bound  by  his  act.  But,  secondly, 
the  occasion  did  require  this  bill  to  be  accepted.  The  case  states  that 
the  defendant  was  engaged  in  various  speculations  individually 
and  in  partnership.  He  had  applied  to  his  own  use  funds  of  the  joint 
firm.  The  joint  concern  was  in  debt,  and  the  bill  in  question  was 
drawn  and  accepted  for  the  purpose  of  paying  those  debts.  [Bayley, 
J.  There  is  nothing  said  in  the  power  as  to  partnership  concerns, 
and  as  to  them  it  was  unnecessary,  for  the  other  partners  had,  with- 
out any  power  of  this  sort,  authority  to  bind  the  defendant.]  The 
words  of  the  power  are  general ;  there  is  nothing  in  them  to  limit  the 
authority  to  the  private  concerns  of  the  defendant,  and  the  words 
must  be  construed  most  strongly  against  him.  But  if  it  be  held  that 
the  special  authority  to  accept  bills  did  not  extend  to  this  case,  still 
the  general  power  in  the  first  instrument  was  sufficient  to  authorize 
the  acceptance ;  that  relates  to  the  management  of  all  the  defendant's 
affairs,  and  if  any  words  are  sufficiently  comprehensive  to  give  both 
special  and  general  powers,  they  have  been  used  in  that  instrument. 

Pollock,  contra.  If  the  first  power  had  been  capable  of  receiving 
the  construction  now  attempted  to  be  put  upon  it,  the  second  would 
have  been  wholly  unnecessary,  but  it  manifestly  was  not  intended  to 
apply  to  the  acceptance  of  bills.  The  question,  therefore,  turns  upon 
the  authority  to  accept  given  by  the  second  power.  Much  argument 
has  been  addressed  to  the  question  how  far  the  power  was  re- 
stricted by  the  introduction  of  the  words  "as  occasion  shall  re- 
quire." But,  supposing  no  such  words  to  have  been  used,  then  the 
power  would  have  been  to  accept  bills  drawn  by  his  agent  or  cor- 
respondent, but  that  must  mean  an  agent  or  correspondent  in  that 
transaction.  Nor  would  any  difficulty  arise  out  of  such  a  construc- 
tion, for  the  acceptance  being  by  procuration  ought  to  put  parties 
taking  the  bill  on  their  guard,  and  they  should  require  the  production 
of  the  letter  of  advice  accompanying  the  bill. 

Bayley,  J. — This  was  an  action  upon  an  acceptance  importing  to 
be  by  procuration,  and,  therefore,  any  person  taking  the  bill  would 
know  that  he  had  not  the  security  of  the  acceptor's  signature,  but  of 
the  party  professing  to  act  in  pursuance  of  an  authority  from  him. 
A  person  taking  such  a  bill  ought  to  exercise  due  caution,  for  he  must 
take  it  upon  the  credit  of  the  party  who  assumes  the  authority  to  ac- 
cept, and  it  would  be  only  reasonable  prudence  to  require  the  produc- 
tion of  that  authority.  The  plaintiff  in  this  case  relies  on  the  avithor- 
ity  given  by  two  powers  of  attorney,  which  are  instruments  to  be 
construed  strictly.  By  the  first  of  the  powers  in  question  the  defend- 
ant gave  to  certain  persons  authority  to  do  certain  acts  for  him  and 
in  his  name  and  to  his  use.  It  is  rather  a  power  to  take  than  to  bind, 
and,  looking  at  the  whole  of  the  instrument,  although  general  words 
are  used,  it  only  authorizes  acts  to  be  done  for  the  defendant  singly ; 
it  contains  no  express  power  to  accept  bills,  nor  does  there  appear  to 
have  been  an  intention  to  give  it ;  the  first  power,  therefore,  did  not 


,  transactions,  for  the  uiher  partncis 

.  ._ceptance.    The  words,  therefore,  must 

which  is  their  obvious  meaning,  viz. :  an  authority 
■  'here  it  was  rig-hSfor  '   ■     '  ^  -..-../(  i.-.  \ 

•s.  the  bills  to  be  acct  ■ 


i  rc'^uirc. 

:.  1     .    .       _:ise  was  not 

ccepting.    He  might  easily  have  r; 
' -e,  and  I  think  he  was  bound  i 
inion  that  iudgment  of  nonsuit  ra: 


V  ci'C  uOuiiu  L>-<  ctsccriaui, 

ce  was  agreeable  to  the 

state  sufficient  to  show  that  this  biii  was  draw;: 

..c.e  capacity,  but  rather  to  the  contrary;  f*"*-  ''  •^'T'^firA 

WNW  to  raise  money  for  the  joint  concern  .  .he 

partner;  it  does  not,  therefore,  come  \  '  '  i  special 

I    3*5  to  thf*  frpTieral  j>")wers.  these  in:  do  not 


iiALE,  J. — i  am  di  the  same  opmion.     ii  is  said  that  li 
<-f  -nn*^  V.und  to  inquire  into  the  making  of  a  bi^'    ■':''  ' 
he  acceptance  appears  to  be  by  prociv 
!ui  hs  upon  the  authority  given.    The  first  ; 
IS  an  authoritv  to  endorse,  but  not  to  acci 
been  p 
•  Is,  for  1 
-  are  given.     Ihe  sccona  pu\ 
_,  :.''  in  my  name  bills  .'r^M  :•  ,, 

iits  or  c  lents,  as  occ; 

■^     ■  •  '    ..   <..^.'..-.-iun,  do  vf^'   ■  '.,,..,> 

the  sentence  wr  m.  it  ai 


autiioiiiy,  and  the  plaiatiii  canm- 

le  defen 

•n  of  this  case  in  North  River  Bank  v.  Aymar,  ; 


incipal  v  ot.    But,  secondly, 

J  did  req:  ''       ■    -    ■   -s  that 

ant   wa.-  'lually 

•  joint 
.1  was 
[i^ayley, 
^.  concerns, 
e  other  partners  had,  with- 
bind  the  defendant.]     The 
nothing  in  them  to  Hinit  the 
ii;c  defendant,  and  the  words 
n'^t  him.     ?A\X  if  it  be  held  that 
this  case,  still 
"1.  to  authorize 
all  the  defendant's 
nsive  to  give  both 
that  instrument. 
'  '      ''  receiving 
nd  would 
^tended  to 
ims  upon 
irgumerr' 
r    was   re 
shall  re 
then  tlv 
It  or  cor 
vit  in  that 
construe- 
to  put  parties 
"he  nroductinn 


t  taking  the  bill  would 

cccptor'  lire,  but  of 

of  Jtn  a  "rom  him. 

T  he  must 

rity  to  ac- 

e  produc- 

le  author- 

nts  to  be 

vMi' u  ihe  defend- 

1  acts  for  him  and 


lention  to  gi\  refore,  did  not 


RULES    OF    CONSTRUCTION.  llj 

warrant  this  acceptance.  The  second  power  gave  an  express  author- 
ity to  accept  bills  for  the  defendant  and  on  his  behalf.  No  such  power 
was  requisite  as  to  partnership  transactions,  for  the  other  partners 
might  bind  the  firm  by  their  acceptance.  The  words,  therefore,  must 
be  confined  to  that  which  is  their  obvious  meaning,  viz. :  an  authority 
to  accept  in  those  cases  where  it  was  right  for  him  to  accept  in  his 
individual  capacity.  Besides,  the  bills  to  be  accepted  are  those  drawn 
by  the  defendant's  agents  or  correspondents ;  but  the  drawer  of  the 
bill  in  question  was  not  his  agent  quoad  hoc.  The  bills  are  to  be 
accepted,  too,  "as  occasion  shall  require."  It  would  be  dangerous  to 
hold  that  the  plaintiff  in  this  case  was  not  bound  to  inquire  into  the 
propriety  of  accepting.  He  might  easily  have  done  so  by  calling  for 
the  letter  of  advice,  and  I  think  he  was  bound  to  do  so.  For  these 
reasons,  I  am  of  opinion  that  judgment  of  nonsuit  must  be  entered. 

HoLROYD,  J. — I  agree  in  thinking  that  the  powers  in  question  did 
not  authorize  this  acceptance.  The  word  procuration  gave  due  notice 
to  the  plaintiffs,  and  they  were  bound  to  ascertain,  before  they  took 
the  bill,  that  the  acceptance  was  agreeable  to  the  authority  given. 
The  case  does  not  state  sufficient  to  show  that  this  bill  was  drawn 
bv  an  agent  in  that  capacity,  but  rather  to  the  contrary ;  for  it  appears 
that  it  was  drawn  to  raise  money  for  the  joint  concern  in  which  the 
drawer  was  a  partner ;  it  does  not,  therefore,  come  within  the  special 
power.  Then,  as  to  the  general  powers,  these  instruments  do  not 
give  general  powers,  speaking  at  large,  but  only  where  they  are  neces- 
sary to  carry  the  purposes  of  the  special  powers  into  effect. 

LiTTLEDALE,  J. — I  am  of  the  same  opinion.  It  is  said  that  third 
persons  are  not  bound  to  inquire  into  the  making  of  a  bill,  but  that 
is  not  so  where  the  acceptance  appears  to  be  by  procuration.  The 
question  then  turns  upon  the  authority  given.  The  first  power  of  at- 
torney contains  an  authority  to  endorse,  but  not  to  accept  bills ;  the 
latter,  therefore,  seems  to  have  been  purposely  omitted.  Neither  is 
this  varied  by  the  general  words,  for  they  cannot  apply  to  anything 
as  to  which  limited  powers  are  given.  The  second  power  gives  au- 
thority "to  accept  for  me  and  in  my  name  bills  drawn  or  charged  on 
me  by  my  agents  or  correspondents,  as  occasion  shall  require."  The 
latter  words,  as  to  the  occasion,  do  not  appear  to  me  to  vary  the 
question,  and  reading  the  sentence  without  them,  it  authorizes  the 
acceptance  of  bills  drawn  by  an  agent.  The  present  bill  was  not 
drawn  by  Burleigh  in  his  character  of  agent,  and.  therefore,  the  ac- 
ceptance was  without  sufficient  authority,  and  the  plaintiff  cannot  re- 
cover upon  it. 

Postea  to  the  defendant.^ 

^  See  discussion  of  this  case  in  North  River  Bank  v.  Aymar,  3  Hill  (N.  Y.) 
262. 

"The  words  'per  procuration'  are  an  express  statement  that  the  partj^  accept- 
ing the  bill  has  only  a  special  and  limited  authority,  and  therefore  a  person 
who  takes  a  bill  so  accepted  is  bound  at  his  peril  to  inquire  into  the  extent 


Il8  EXECUTION    OF   AUTHORITY. 

GC/ULDY  V.  METCALF  et  al. 
1889.     Supreme  Court  of  Texas.     75  Tex.  455. 

Acker,  Presiding  Judge. — W.  H.  Turner,  by  properly  executed 
power  of  attorney,  granted  to  H.  E.  Turner  and  A.  P.  Bell  authority 
and  powers  as  follows :  *Tn  and  about  my  business,  to  buy,  sell  or 
exchange  property ;  to  receive  and  receipt  for  money ;  to  sell  and 
dispose  of  property,  to  give  bills  of  sale  thereto,  or  to  sell  and  transfer 
real  estate  and  execute  deeds  thereto ;  or  to  do  and  perform  any  law- 
ful act  in  or  about  or  concerning  my  business,  as  fully  and  completely 
as  if  I  were  personally  present ;  and  I  herein  and  hereby  confirm  all 
their  lawful  acts  and  deeds  that  they  perform  in  any  manner  con- 
nected with  my  business." 

Under  this  instrument  the  attorneys  in  fact  executed  a  statutory 
deed  of  assignment  of  Turner's  property  for  the  benefit  of  his  cred- 
itors. Appellant  Gouldy  was  named  as  assignee,  and  he  took  pos- 
session of  the  assigned  estate  as  such. 

Appellees  Ruder  and  Pool  were  creditors  of  Turner,  and  sued  out 
an  attachment  against  him,  under  which  appellee  Metcalf,  as  sheriff, 
took  from  the  possession  of  Gouldy  the  stock  of  merchandise,  books 
and  accounts,  etc.,  which  he  had  received  as  assignee  of  Turner. 

Gouldy  brought  this  suit  as  assignee  against  the  sheriff  and  plain- 
tiffs in  attachment  to  recover  damages  for  the  wrongful  seizure  and 
conversion  of  the  property. 

On  the  trial  plaintiff,  having  introduced  in  evidence  the  power  of 
attorney,  offered  the  deed  of  assignment,  which  was  objected  to  by 
defendants  upon  the  ground  that  "the  power  of  attorney  did  not  au- 
thorize the  attorneys  in  fact  to  make  the  deed."  The  objection  was 
sustained,  and  there  was  no  other  evidence  offered. 

The  court,  trying  the  case  without  a  jury,  rendered  judgment  for 
defendants. 

The  only  question  presented  is,  Did  the  trial  court  err  in  holding 
that  the  power  of  attorney  did  not  authorize  the  attorneys  in  fact  to 
execute  the  deed  of  assignment  ?  That  a  deed  of  assignment  for  the 
benefit  of  creditors  may  be  executed  by  an  agent  or  attorney  in  fact, 
specially  authorized  thereto,  we  think  has  been  settled  by  the  decision 
in  McKee  v.  Coffin,  66  Tex.  307,  308,  where  it  is  said :  "It  is  now 
urged  that  the  court  below  erred  in  admitting  in  evidence  the  deed  of 
assignment,  because  there  is  no  sufficient  evidence  that  it  was  ever 
executed  by  S.  W.  Kniffin.     The  evidence  shows  that  he  was  not 

and  nature  of  the  agent's  authority."     Byles,  J.,  in  Stagg  v.  Elliott,  12  C.  B. 
N.  S.  373,  381. 

"A  signature  by  'procuration'  operates  as  notice  that  the  agent  has  but  a 
limited  authority  to  sign,  and  tlie  principal  is  bound  only  in  case  the  agent  in 
so  signing  acted  within  the  actual  limits  of  his  authority."  Negotiable  In- 
struments Law,  §  21. 


119 

executed,  but  that  prior  to  its  execution 
I  .  la  uone  by  those  who  did  execute  it,  upon  the 
contemplated  contingency." 

in  under  no  disability  may  do  in  person, 

:h  an  agent ;  but  it  is  claimed  that  this  is 

■  tiie  act  ^  assignments;  that  the  deed  of  as- 

'   hi'  the  ^  act  of  the  owner  of  the  property 

I  evidence  of  this,  it  is  urged  that  the  assignor 

die  schedule. 

he  second  section  of  the  act  d^  hat  the 

shall  be  verified  by  the  oarii  Oi 

0  the  validity  of  the  assig-nment,  f' 
L  "no  assignment  shall  be  declared  fr; 

:  V  inventory  or  list,  as  provided  herein . 

i>e  not  annexed  and  verified  as  provided  in  ti^is 

,  ;,,.;.^  '-^^'dence  that  the  assignor  has  secreted 

t-he  property  belonging  to  his  estate 

iiics.-,  etc.     it  is  said  that 'the  processes  provided 

•-,  and  the  penalties  denounced  against  him,  are 

•  be  transferred  to  and  performed  by  or  en- 

."    If  an  agent  makes  a  false  oath  in  the  course 

ot  his  principal,  he  may  be  indicted  and  convicted  for 

.,..-...  ^  or  perjury,  as  the  case  may  be,  as  though  the  fa',-e 

ore  taken  in  his  own  business." 

think  it  clear  from  the  foregoing  quotations  that  an  assigiiiiiL-ii 
■  benefit  of  creditors  may  be  made  by  any  agent  or  attorney  in 
]  thereto..  The  instrument  under  which  the  power  wr:s 
is  case  does  not  in  terms  grant  the  authoT-ity.     Ti:l 
;n  the  grant  of  general  power  is  certainly  v  e- 

•  pstablished  rule  of  construction  limits  ti 
2ral  grant  of  power  to  the  acts  author 
'  ,ii|>i(  ^r'i  in  granting  the  special  powers, 
in  authority  is  conferred  upon  an  agent  by  a  formal 

power  of  attorney,  there  are  two  rules  of  construciiou 
attended  to : 

:::  of  general  words  in  the  instrument  will  be  re- 

-  ext  and  construed  accordingly." 

■  authority  will  be  construed  strictly,  so  as  to  exclude  the 

i  any  power  which  is  not  warranted,  either  by  the  actual 

>i  or  as  a  necessary  means  of  executing  the  authority  with 

'"s  Evans  on  Agency,  204,  205;  Reese  v.  Medlock,  27 

-'•'<  Am.  Dec.  611. 

to  this  case,  and  none  of  th 
was  executed  being  shown,  w 
t  did  not  have  the  power  to  mai<e 

1  ili.-l    Tint    i^rr    m    >;.-.  Til -ilrl;'":  .T 


GC/ULDY 

]8.'^t)      Sui'REMr 

resitlinf^  J'r' 
^"i\Mir  of  aitornt 
and  powers  as  t 
exchange  property ; 
dispose  of  property 
real  estate  and  ex- 
ful  act  in  or  aboii 
as  if  I  were  per^ 
their  lawful  act 
nected  with  mv 
Under  thi'- 


aiK; 

tilt,^ 

COM" 


nly  que^ 


N.  - 
strunn::;u^  i.;. 


75  Tex.  .. 

•er,  by  :  executec: 

authorit} 

iiy,  sell  or 

I  it  for  money;  to  sell  and 

Ljioreto,  or  to  sell  and  transfer 

'ir  to  do  and  perform  any  law  - 

isiness,  as  fully  and  complete)} 

herein  and  hereby  confirm  al 

perform  in  any  manner  con 

-  in  fact  executed  a  statutor} 

fv  For  t'l  ■  Monefit  of  his  cred- 

and  he  took  pos- 

Turner.  and  sued  out 

1;  appei'  '   :is  sherifiF. 

:''  ■^tork  >e,  book- 

rner. 
ind  plain 
wrongful  seizure  and 

need  in  evidence  the  power  oi 
ent,  whi'ch  was  objected  to  b\ 
power  of  attorney  did  not  au- 
rhe  deed."  The  objection  wa^ 
.nee  offered. 

.  V,  rendered  judgment  for 

•  the  trial  court  err  in  holding 

•'ze  the  ai:  in  fact  tc 

feed  of  ;-'  ;t  for  the 

'.  agent  or  auo.ney  in  fact, 

-cen  settlc('  w-  the  decision 

ere  it  i-  l  is  now 

■"-T  i"  <'^  .  le  deed  of 

it  was  ever 

^lI^nv^    uidt    he   WaS   not 
i-.  Stagg  V.  Elliott,  12  C.  B. 

'at  the  agent  has  but  a 
i-nly  in  case  the  agent  in 
Iiority."     Negotiable  In- 


RULES    OF    CONSTRUCTION.  II9 

present  when  the  deed  was  executed,  but  that  prior  to  its  execution 
he  had  directed  this  to  be  done  by  those  who  did  execute  it,  upon  the 
happening  of  a  then  contemplated  contingency." 

And  again :  "What  a  person  under  no  disabihty  may  do  in  person, 
he  may  ordinarily  do  through  an  agent ;  but  it  is  claimed  that  this  is 
not  true  under  the  act  regulating  assignments ;  that  the  deed  of  as- 
signment must  be  the  personal  act  of  the  owner  of  the  property 
assigned,  and,  as  an  evidence  of  this,  it  is  urged  that  the  assignor 
must  make  oath  to  the  schedule. 

"It  is  true  that  the  second  section  of  the  act  does  require  that  the 
inventory  and  schedule  shall  be  verified  by  the  oath  of  the  debtor, 
but  this  is  not  essential  to  the  validity  of  the  assignment,  for  the  tenth 
section  declares  that  'no  assignment  shall  be  declared  fraudulent  or 
void  for  want  of  any  inventory  or  list,  as  provided  herein,  but  if  such 
hst  and  inventory  be  not  annexed  and  verified  as  provided  in  this 
act,  it  shall  be  prima  facie  evidence  that  the  assignor  has  secreted 
and  concealed  some  portion  of  the  property  belonging  to  his  estate 
from  his  assignee,  unless,'  etc.  It  is  said  that  'the  processes  provided 
against  the  assignor,  and  the  penalties  denounced  against  him,  are 
all  personal,  and  cannot  be  transferred  to  and  performed  by  or  en- 
forced against  an  agent.'  If  an  agent  makes  a  false  oath  in  the  course 
of  the  business  of  his  principal,  he  may  be  indicted  and  convicted  for 
false  swearing  or  perjury,  as  the  case  may  be,  as  though  the  false 
oath  were  taken  in  his  own  business." 

We  think  it  clear  from  the  foregoing  quotations  that  an  assignment 
for  the  benefit  of  creditors  may  be  made  by  any  agent  or  attorney  in 
fact  authorized  thereto.  The  instrument  under  which  the  power  was 
exercised  in  this  case  does  not  in  terms  grant  the  authority.  The 
language  used  in  the  grant  of  general  power  is  certainly  very  compre- 
hensive, but  the  established  rule  of  construction  limits  the  authority 
derived  by  the  general  grant  of  power  to  the  acts  authorized  by  the 
language  employed  in  granting  the  special  powers. 

"When  an  authority  is  conferred  upon  an  agent  by  a  formal  instru- 
ment, as  by  a  power  of  attorney,  there  are  two  rules  of  construction 
to  be  carefully  attended  to : 

"i.  The  meaning  of  general  words  in  the  instrument  will  be  re- 
stricted by  the  context  and  construed  accordingly." 

"2.  The  authority  will  be  construed  strictly,  so  as  to  exclude  the 
exercise  of  any  power  which  is  not  warranted,  either  by  the  actual 
terms  used  or  as  a  necessary  means  of  executing  the  authority  with 
efifect."  Ewell's  Evans  on  Agency,  204,  205 ;  Reese  v.  Aledlock,  27 
Tex.  123,  124,  84  Am.  Dec.  611. 

Applying  these  rules  to  this  case,  and  none  of  the  circumstances 
under  which  the  power  was  executed  being  shown,  we  are  of  opinion 
that  the  attorneys  in  fact  did  not  have  the  power  to  make  the  assign- 
ment, and  that  the  court  did  not  err  in  so  holding. 


120  EXECUTION    OF    AUTHORITY. 

We  are,  therefore,  of  opinion  that  the  judgment  of  the  court  below 
should  be  affirmed. 
Affirmed.  1 


GILBERT  V.  HOW. 
1890.     Supreme  Court  of  Minnesota.     45  Minn.  121. 

Ejectment  for  land  in  Scott  county,  brought  in  the  district  court 
for  that  county,  and  tried  before  Francis  Cadwell,  Esq.,  as  referee, 
who  ordered  judgment  for  defendant,  which  was  entered  and  from 
which  the  plaintiff  appeals.  The  facts  found  were  as  follows :  In 
1856  Franklin  Chase,  being  owner  in  fee,  conveyed  to  Mary  A. 
Clarke.  On  January  22,  1857,  the  latter  mortgaged  to  Edward  A. 
Judson.  On  February  28,  1857,  Mary  A.  Clarke  and  Benjamin  F. 
Bucklin  made  to  Franklin  Chase  the  power  of  attorney  considered  in 
the  opinion,  Bucklin  having  no  interest  in  the  land.  On  July  14, 
1858,  Chase,  assuming  to  act  under  his  power  of  attorney,  executed 
and  delivered,  in  the  names  of  both  principals,  a  conveyance  to 
George  A.  Bucklin.  In  1859  Judson  brought  suit  in  the  United  States 
circuit  court  for  Minnesota  to  foreclose  his  mortgage,  making 
George  A.  Bucklin  the  sole  defendant,  which  suit  proceeded  to  decree 
and  sale,  at  which  Judson  became  the  purchaser,  and,  after  confirma- 
tion, received  the  proper  master's  deed.  In  1867  Judson  conveyed 
to  one  Latz,  who,  in  1888,  conveyed  to  plaintiff.  The  defendant 
offered  no  evidence. 

Collins,  J. — The  deed  in  which  Mary  A.  Clarke  and  B.  F.  Bucklin 

^Compare  Philadelphia  Trust  Co.  v.  Nat.  Bank,  6  Fed.  114. 

"When  parties  have  reduced  their  contract  to  writing,  courts  will  construe 
it  according  to  the  intention  therein  expressed,  when  that  intention  is  clear 
upon  its  face.  Only  in  cases  of  ambiguity  in  the  terms  of  the  written  contract 
will  courts  resort  to  extraneous  evidence  to  determine  the  intention  of  the 
parties."    Grant,  J.,  in  Baker  v.  Baird,  79  Mich.  255,  259. 

"This  was  a  formal  power  of  attorney,  apparently  deliberately  executed,  at- 
tested, and  recorded.  It  will  therefore  be  strictly  construed,  in  view  of  the 
controlling  purpose;  and  the  addition  of  general  words  will  not  be  construed 
to  extend  the  authority,  so  as  to  add  new  and  distinct  powers  different  from 
those  expressly  delegated."    Lumpkin,  J.,  in  White  v.  Young,  122  Ga.  830. 

"The  ordinary  common-law  rule  is  that  all  written  powers,  such  as  letters  of 
attorney,  or  letters  of  instructions,  must  receive  a  strict  interpretation;  the  au- 
thority never  being  extended  beyond  that  which  is  given  in  terms,  or  is  abso- 
lutely necessary  for  carrying  the  authority  so  given  into  effect."  McAllister, 
J.,  in  Bissell  v.  Terry,  69  111.  184,  19T. 

"Such  an  instrument  (a  power  of  attorney)  is  generally  to  be  construed  as 
a  plain  man,  acquainted  with  the  object  in  view,  and  attending  reasonably  to 
the  language  used,  has  in  fact  construed  it.  He  is  not  bound  to  take  the  opin- 
ion of  a  lawyer  concerning  the  meaning  of  a  word  not  technical,  and  appar- 
ently employed  in  a  popular  sense."  Curtis,  J.,  in  Very  v.  Levy,  13  How.  (U. 
S.)  345,  358. 


121 

A.  Bucklin  as  gfrantee,  was  exe- 

ano  i)\  Franklin  Ch?:      '     '    '    '"        '    is 

>  A.  Clarke.    The  la)  .n 

rcy  of  the  grantor  last  i^  ;.ar  as 

rd,  Bucklin  havinc:  no  The 

•rtue  of  which  (  was  a 

.  ..nd  delivered  to  h   .    .    ..  >■  .md 

its  terms,  the  latter  constituted  an<  i 

1  1.,  ..-.,1  attornev  ^  -  ^'     and  in  our  o 

;on  of  ai  lo  which  we  v 

aiiUeJ  or  iuterc-  .  ' 

*    ^.nd  f'^r  t";  .. 

ueeus ,    '•'    '■    '-'    an<:i  .y 

:  our  attorney,  and  ii:  o 

iness ;    *    *    *    and  also  in  our  nr 
receive  all  sums  of  money,"  etc. 
reive  a  strict  interpretation,  and  the  aii- 
^uction  beyond  thai 
'v  for  carrying  the 
I,  auJ  thai  auLhority  uju&t  be  strictly  pursued, 
i .-,  8  Wend.  204.  24  Am.  Dec.  62 :  Brant^-'^    -. , 
lie  Ins.  Co.,  53  J\  }3liss  v.  Clark,  16  Gray  6< 

.  .i:,-i  ■::,  t:;,"?.  ,      .,,.,.,  .acr,  8  Minn.  214  (248),  t>.,     .  .  . 
^4  Minn,  263  (345),  i-oo  Am.  Dec.  229: 
K.;,      ■  .37.     And  a  party  dealing  with  ar; 

le  with  he  contents  of  the  power  under  w^ 

rpivi  it  at  his  own  peril.     Sandford 
r  V.  Hyserott,  5  Johns.' 58. 
ch  Chase  pretended  to  co. 

,  .  - ..;ry  A.  Clarke,  must  be  c. .,  . 

u  convey  such  lands  only  as  were  held  ar, 
...,.,*,  :-.■..„;.      „  :.    -ommon^  and       "  '' 

Bv  its  terr. 
nvned  as  u.t 
o  interest,  n 
,ct  any  uu>inic'%s,  except  that  in  whicn  the  \\ 
■  '\    Tlir  -.  .'hority  was  special.    ■  ;;!  li  ■    v\  ;- 
'IS  made  of  the  s.( 


of  tlie  court  below 


whicri 
1856  i 
Clarkt 

Jiv-- 


NNESOTA. 

45 

Minn.  121. 

'tv,  bro«.i<rb 

'  in 

the  district  court 
>q.,  as  referee, 
.red  and  frorn 

iCtS  foui! 

-  follov 

i!l     f'-> 

I    to    M:i 
io  Edw;;' 
Benjarnin   r 
considered  in 
On  July  14, 
rney,  executed 
a   conveyance  to 
ihi  T^iited  States 
\    making 
vvi^d  to  decree 

-'  pincha."- 

ifter  confirma- 

. od.     In 

]son  conveyed 

il  to  pi;; 

ijie  defendant 

A.  Clark  :•,  Bucklin 

:r.k.  6  Fco. 

is  will  construe 
Mention  is  clear 
written  contract 
'iitention  of  the 

ly  executed,  at- 

l..  .. ;,  „r  of  the 
'  strued 

from 


oil ;  ihc  au 
or  is  abso- 
McAllister, 

-  ''-ned  as 

.bly  to 

., ..    .0  opin- 

icai,  and  appar- 

.V.  i;.  How.  (V. 


RULES   OF    CONSTRUCTION.  121 

were  named  as  grantors,  and  George  A.  Bucklin  as  grantee,  was  exe- 
cuted by  Bucklin  in  person,  and  by  Franklin  Chase  in  behalf  and  as 
the  attorney  in  fact  of  Mary  A.  Clarke.  The  land  described  therein 
was  then  the  sole  property  of  the  grantor  last  mentioned,  so  far  as 
was  shown  by  the  record,  Bucklin  having  no  interest  in  it.  The 
power  of  attorney,  by  virtue  of  which  Chase  assumed  to  act,  was  a 
joint  power,  executed  and  delivered  to  him  by  IMary  A.  Clarke  and 
B.  F.  Bucklin.  By  its  terms,  the  latter  constituted  and  appointed 
Chase  "our  true  and  lawful  attorney  for  us,  and  in  our  names,"  to 
enter  upon  and  take  possession  of  all  lands  "to  which  we  are  or  may 
be  in  any  way  entitled  or  interested,  and  to  grant,  bargain,  and  sell 
the  same,  *  *  *  and  for  us  and  in  our  names  to  make  *  *  * 
and  deliver  good  and  sufficient  deeds ;  *  *  *  and  we  do  hereby 
further  constitute  the  said  Chase  our  attorney,  and  in  our  names  to 
transact  and  manage  all  business ;  *  *  *  and  also  in  our  names  to 
demand,  sue  for,  recover  and  receive  all  sums  of  money,"  etc. 

All  powers  of  attorney  receive  a  strict  interpretation,  and  the  au- 
thority is  never  extended  by  intendment  or  construction  beyond  that 
which  is  given  in  terms,  or  is  absolutely  necessary  for  carrying  the 
authority  into  effect,  and  that  authority  must  be  strictly  pursued. 
Rossiter  v.  Rossiter,  8  Wend.  294,  24  Am.  Dec.  62 ;  Brantley  v. 
Southern  Life  Ins.  Co.,  53  Ala.  554;  Bliss  v.  Clark,  16  Gray  60.  This 
rule  was  applied  in  Rice  v.  Tavernier,  8  Minn.  214  (248),  83  Am. 
Dec.  778;  Greve  v.  Coffin,  14  Minn.  263  (345),  100  Am.  Dec.  229; 
Berkey  v.  Judd,  22  Minn.  287.  And  a  party  dealing  with  an  agent 
is  chargeable  with  notice  of  the  contents  of  the  power  under  which  he 
acts,  and  must  interpret  it  at  his  own  peril.  Sandford  v.  Handy, 
23  Wend.  260 ;  Nixon  v.  Hyserott,  5  Johns.  58. 

The  power  under  which  Chase  pretended  to  convey  a  tract  of  land, 
the  sole  property  of  ]\Iary  A.  Clarke,  must  be  construed  as  author- 
izing him  to  convey  such  lands  only  as  were  held  and  owned  by  his 
two  constituents  jointly  or  in  common,  and  not  the  lands  held  and 
owned  by  either  and  separately.  By  its  terms,  the  attorney  was  not 
empowered  to  convey  land  held  and  owned  as  the  undivided  property 
of  one,  and  in  which  the  other  had  no  interest,  nor  was  he  given  au- 
thority to  transact  any  business,  except  that  in  which  the  parties  were 
jointly  concerned.  The  authority  was  special,  and  the  written  power 
joint  in  form.  No  mention  was  made  of  the  separate  property  or  busi- 
ness of  either  of  the  parties  who  executed  it,  and  it  cannot  be  inferred 
that  they  intended  to  confer  upon  Chase  the  power  to  convey  such 
property  or  to  transact  such  business.  Dodge  v.  Hopkins,  14  Wis. 
630 ;  Johnston  v.  Wright,  6  Cal.  373.  This  rule  is  also  recognized  in 
Holladay  v.  Daily,  19  Wall.  606,  although  the  point  was  not  directly 
in  issue.  The  deed  referred  to  was  a  nullity,  did  not  convey  the  land 
to  George  A.  Bucklin,  and  when  the  mortgage  given  by  Mary  A. 
Clarke  was  foreclosed  by  action  brought  against  Bucklin  alone,  the 
proper  party,  the  owner  of  the  land,  was  not  made  a  defendant.    The 


122  EXECUTION    OF   AUTHORITY. 

foreclosure  sale  was  void,  and  a  purchaser  thereat  acquired  no  in- 
terest in  the  land  sold.  As  the  plaintiff's  rights  were  predicated  upon 
this  sale,  he  failed  to  establish  title  to  the  land  in  himself,  upon  the 
trial. 

Judgment  affirmed.^ 


CRAIGHEAD  et  al.,  executors  v.  PETERSON. 
1878.     Court  of  Appeals  of  New  York.     72  N.  Y.  279. 

This  action  was  brought  upon  two  promissory  notes  alleged  to 
have  been  executed  by  defendant,  which  were  made  payable  to  the 
order  of  Samuel  N.  Pike,  plaintiff's  testator,  at  the  Park  National 
Bank.  The  notes  were  dated  July  12,  1872.  They  were  in  fact  exe- 
cuted by  one  Abiel  R.  Packard,  a  son-in-law  of  defendant,  in  the 
name  of  the  latter,  Packard  claiming  to  act  under  the  following 
power  of  attorney : 

"Know  all  men  by  these  presents,  that  I,  Robert  Peterson,  of  the 
city,  county  and  state  of  New  York,  have  made,  constituted  and  ap- 
pointed, and  by  these  presents  do  make,  constitute  and  appoint,  Abiel 
R.  Packard,  of  said  city,  my  true  and  lawful  attorney,  for  me  and  in 
my  name,  place  and  stead  to  draw  and  endorse  any  check  or  checks, 
promissory  note  or  notes,  on  any  bank  in  the  city  of  New  York  in 
which  I  may  have  an  account,  and  especially  in  the  Irving  National 
Bank,  of  said  city,  and  do  any  and  all  matters  and  things  connected 
with  my  account  in  said  Irving  National  or  any  other  bank  in  said 
city,  which  I  myself  might  or  could  do,  in  relation  to  my  deposit  ac- 
count with  said  Irving  National,  or  any  other  bank,  giving  and  grant- 
ing unto  my  said  attorney  full  power  and  authority  to  do  and  perform 
all  and  every  act  and  thing  whatsoever,  requisite  and  necessary  to  be 
done  in  and  about  the  premises,  as  fully,  to  all  intents  and  purposes, 
as  I  might  or  could  do  if  personally  present,  with  full  power  of  sub- 
stitution and  revocation,  hereby  ratifying  and  confirming  all  that  my 
said  attorney  or  his  substitute  shall  lawfully  do  or  cause  to  be  done 
by  virtue  hereof. 

"In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal  the 
eighth  day  of  October,  in  the  year  one  thousand  eight  hundred  and 
sixty-nine.  Robert  Peterson.     (L.  S.) 

"Sealed  and  delivered  in  the  presence  of 

"The  words  'promissory  note  or  notes'  first  interlined. 

"Jno.  S.  Patterson." 

^  In  Veatch  v.  Gilmer,  iii  S.  W.  746,  the  following  power  of  attorney  was 
executed :  "I  do  hereby  appoint  Samuel  H.  Veatch  my  true  and  lawful  at- 
torney; and  I  do  hereby  empower  him  to  do  any  lawful  act  in  my  name  as  if 
I  were  present."  The  court  decided  that  the  power  of  attorney  was  sufficient 
to  authorize  the  conveyance  of  the  principal's  land. 


RULES  OF  constructt<:>n:.  123 

L>efendant  had  no  account  at  the  Park  National  Bank.    The  c   ' 
i:;'.d  on  the  trial  that  the  power  of  the  attorney  conferred  no  au- 
tlKinty  upon  Mr   Packard  to  execute  the  notes — to  which  plaintiff's 
counsel  duly 

Allen,  J.  ;  tintiff's  testator,  taking  the  notes 

by  an  agent  professing  to  represent  the  defendant  as  hi 
presumed  to  have  known  the  terms  of  the  power  un( 
;':ont  assumed  to  act.    He  was  bound  to  ascertain  and  k 
acter  and  extent  of  the  agency,  and  the  words  of  the  in>i    ii-^iL  b; 
which  it  was  created,  before  giving  credit  to  the  agent.    If  the  testa- 
i  '   ■    , 'r  with  the  agent  without  '  the  ext".^ 

■  i<  '  ..<:  -d  to  him,  he  did  so  at  his  1  ;  must  at 

quences,  if  the  agent  acted  w^ithout  or  in  excess  oi 
Story  on  Agency,  §  ^2.    If  there  was  an  ambiguity  in  th 
the  power  of  attorney,  there  is  no  reason  why  in  this  case  the 
'  e  a  forced  or  unnatural  interpretation  of  the  instrument  to    c 
'..  ?fator  or  his  rej^resentatives  from  loss.     The  transaction  w; 
the  city     '  "'       ^'ork,  where  as  well  the  supposed  principal,  as  .wx. 
V\V<\  r!  .  s  testator,  and  the  professed  agent  resided,  and  if 

i"'i.  rney  was  ambiguous  in  its  expression,  or  of  doubt- 

lv\  ,  '  .  the  defendant  was  accessible,  either  to  make  the 

notes  in  person  or  assent  to  and  ratify  the  act  of  the  agent.  There 
may  be  cases  in  which  from  nece?-'*^-  ->  '^-^.rty  dealing  with  an  agent 
must  act  upon  his  own  interprets  e  authority,  and  take  the 

risk  of  any  doubtful  or  ambiguous  pnraseblogy.     But  not  so  here. 
The  record  is  barren  of  evidence  as  to  the  origin  or  consideration  of 
the  notes.    The  powers  conferred  upon  the  agent  were  limited,  and 
by  the  power  of  attorney  as  first  drawn,  Packard,  the  agent,  was  orb- 
authorized  to  draw  and  endorse  checks  on  any  bank  in  whici 
testator  had  an  account,  ''and  to  do  any  and  all  matters  and  t': 
connected  with  his  (my)  account  in"  such  banks,  which  the  prir", 
"r'.:ht  or  could  do.    The  last  and  general  words  only  gave  ge. 
ers  to  carry  into  effect  the  special  purposes  for  which  the  p 
given.    Attwood  v.  Munnings,  7  B.  &  C.  278 ;  Perry  v.  H 
T.,  R   h  J.  38;  Rossiter  v.   Rossiter,  8  Wend.  494;  Stoi 

The  primary  and  special  purpose  of  the  power  of  at- 
■>  authorize  Packard  to  draw  checks  in  t'--  business  of 
upon  and  against  his  accounts  in  bar  .  endorse 

..;w,ibly  for  deposit  to  the  credit  of  the  saiiv-  .a.  nuts.    "'^'■ 
.  of  the  words  "promissory  note  or  notes,"  by  an  interl 
I'iLer  "chc(k  or  checks,"  and  before  "on  any  ba-  ' 
I  with  the  M'nitM  and  speci^.1  r>urp'~'se  '~>f  the  ' 


r  for  discoir 

at  the  pruv 

net  of  the  aiu,, 

.     -1,-,,.   -,,-, 

with  and  in  re.-;. 

EXECUTION    C 


lire  sale  was  voi 
,  the  land  sold 
■,  he  failed  t. 

jiidgment  affirmed.- 


r  thereat  acquired  no  in- 
G:.hts  were  predicated  upon 
land  in  himself,  upon  the 


CR 


ECUTORS 


i8: 


ha\ 

Ba  ■ 


•  New  Yor* 

1  two  proni! 

;.  which  wer> 

jiiitFs  testator, 

July  12,  1S72.    '■ 

trd,  a  son-ir*  '•  ■ 

claimins:  t' 


Y.  279. 

•^:^  alleged  to 

■'le  to  th'.^ 

•_  Nation  a. 

:  in  fact  exc 

v  Kindant,  in  tli> 

:er  the  following, 


ats,  that  terson,  of  the 

'     V'ork.  1:  -uted  and  ap- 

,-domal.  iiu  int.  Abiel 

I  rue  and  le  and  in 

tw  draw  an^i  v,,.!,.,-  ■  >..  ur  checks, 

•,  on  any  bank  in  tht  x'^ew  York  in 

ount,  and  e.^-      '  "  National 

■o  any  and  a'.  onnected 

Irving  Natioiiai  or  any  olhcr  bank  in  said 
''\t  or  could  do,  in  relation  to  my  deposit  ac- 
ational,  or  any  other  bank,  giving  arid  grant- 
full  power  and  authority  to  do  and  perform 
■g  whatsoever,  requisite  and  necessary  to  be 
■  premises,  as  fully,  to  all  intents  and  purposes, 
o  if  personally  present,  with  full  power  of  sub- 
hereby  ratifying  and  confirming  all  that  my 
■titute  shall  lawful! v  do  r--  rause  to  be  done 


I  have  hereunto 
n  the  year  one  tli 

in  the  presence  Oi 
v  note  or  notes'  m  -■! 


and  seal  the 
hundred  and 


■  h,  V. 

('S.t.. 

tori: 
to  authci 


.\^  746,  the  for 
^     uel  H.  ^■ 
1  to  do  ar 
■a  tuat  the  pov. ,.. 
principal's  land. 


d  attorney  was 
nnd  lawful  at 
my  name  as  i 
>    IS  sufficier,' 


RULES    OF    CONSTRUCTION.  I23 

Defendant  had  no  account  at  the  Park  National  Bank.  The  court 
ruled  on  the  trial  that  the  power  of  the  attorney  conferred  no  au- 
thority upon  Air.  Packard  to  execute  the  notes — to  which  plaintiff's 
counsel  duly  excepted. 

Allen,  J. — The  plaintiff's  testator,  taking  the  notes  in  suit,  made 
by  an  agent  professing  to  represent  the  defendant  as  his  principal,  is 
presumed  to  have  known  the  terms  of  the  power  under  which  the 
agent  assumed  to  act.  He  was  bound  to  ascertain  and  know  the  char- 
acter and  extent  of  the  agency,  and  the  words  of  the  instrument  by 
which  it  was  created,  before  giving  credit  to  the  agent.  If  the  testa- 
tor dealt  with  the  agent  without  learning  the  extent  of  the  powers 
delegated  to  him,  he  did  so  at  his  peril,  and  must  abide  by  the  conse- 
quences, if  the  agent  acted  without  or  in  excess  of  his  authority. 
Story  on  Agency,  §  72.  If  there  was  an  ambiguity  in  the  language  of 
the  power  of  attorney,  there  is  no  reason  why  in  this  case  there  should 
be  a  forced  or  unnatural  interpretation  of  the  instrument  to  save  the 
testator  or  his  representatives  from  loss.  The  transaction  was  in 
the  city  of  New  York,  where  as  well  the  supposed  principal,  as  Mr. 
Pike,  the  plaintiff's  testator,  and  the  professed  agent  resided,  and  if 
the  power  of  attorney  was  ambiguous  in  its  expression,  or  of  doubt- 
ful interpretation,  the  defendant  was  accessible,  either  to  make  the 
notes  in  person  or  assent  to  and  ratify  the  act  of  the  agent.  There 
may  be  cases  in  which  from  necessity  a  party  dealing  with  an  agent 
must  act  upon  his  own  interpretation  of  the  authority,  and  take  the 
risk  of  any  doubtful  or  ambiguous  phraseology.  But  not  so  here. 
The  record  is  barren  of  evidence  as  to  the  origin  or  consideration  of 
the  notes.  The  powers  conferred  upon  the  agent  were  limited,  and 
by  the  power  of  attorney  as  first  drawn.  Packard,  the  agent,  was  only 
authorized  to  draw  and  endorse  checks  on  any  bank  in  which  the 
testator  had  an  account,  "and  to  do  any  and  all  matters  and  things 
connected  with  his  (my)  account  in"  such  banks,  which  the  principal 
might  or  could  do.  The  last  and  general  words  only  gave  general 
powers  to  carry  into  effect  the  special  purposes  for  which  the  power 
was  given.  Attwood  v.  Munnings,  7  B.  &  C.  278 ;  Perry  v.  Holl,  2 
DeG.,  F.  &  J.  38 ;  Rossiter  v.  Rossiter,  8  Wend.  494 ;  Story  on 
Agency,  §  62.  The  primary  and  special  purpose  of  the  power  of  at- 
torney was  to  authorize  Packard  to  draw  checks  in  the  business  of 
the  principal  upon  and  against  his  accounts  in  bank,  and  to  endorse 
checks  probably  for  deposit  to  the  credit  of  the  same  accounts.  The 
insertion  of  the  words  "promissory  note  or  notes,"  by  an  interlinea- 
tion after  "check  or  checks,"  and  before  "on  any  bank,"  etc.,  must  be 
read  with  the  limited  and  special  purpose  of  the  power  as  first  pre- 
pared in  view,  and  not  as  intending  to  give  a  more  extended  or 
general  power.  The  making  and  endorsing  of  promissory  notes, 
either  for  discount  or  payable  at  the  principal's  bank,  was  a  natural 
adjunct  of  the  authority  given  to  draw  and  endorse  checks,  and  thus 
deal  with  and  in  respect  of  the  bank  accounts  of  the  testator.     The 


124  EXECUTION    OF   AUTHORITY. 

dealings  and  business  relations  of  the  testator  with  the  banks  with 
whom  he  dealt,  and  his  accounts  with  such  banks,  was  the  subject 
of  the  agency,  and  the  instrument  creating  the  agency  restricted  the 
powers  of  the  agent  to  the  making  and  endorsing  of  commercial 
instruments  having  an  immediate  connection  with  the  banks  with 
which  the  principal  had  dealings,  and  which  would  properly  enter 
into  his  accounts  with  them. 

The  act  of  making  the  notes  in  suit  was  ultra  vires,  and  the  de- 
fendant is  not  liable  thereon.  A  formal  instrument  delegating  powers 
is  ordinarily  subjected  to  strict  interpretation,  and  the  authority  is  not 
extended  beyond  that  which  is  given  in  terms,  or  which  is  necessary 
to  carry  into  effect  that  which  is  expressly  given.  They  are  not 
subject  to  that  liberal  interpretation  which  is  given  to  less  formal 
instruments,  as  letters  of  instruction,  etc.,  in  commercial  transactions 
which  are  interpreted  most  strongly  against  the  writer,  especially 
when  they  are  susceptible  of  two  interpretations,  and  the  agent  has 
acted  in  good  faith  upon  one  of  such  interpretations.  Wood  v.  Good- 
ridge,  6  Cush.  117 ;  Attwood  v.  Munnings,  supra;  Hubbard  v.  Elmer, 
7  Wend.  446 ;  Hodge  v.  Combs,  i  Black.  192.^     *     ''^     * 

There  was  no  error  upon  the  trial,  and  the  judgment  must  be 
affirmed.- 


Section  3. — Execution  of  Authority. 

(a)    SEALED   INSTRUMENTS. 

BRADSTREET  et  al.  v.  BAKER  et  al. 
1884.     Supreme  Court  of  Rhode  Island.     14  R.  1.  546. 

Covenant.    On  demurrer  to  the  pleas.    July  12,  1884. 

DuRFEE,  C.  J. — This  is  an  action  of  covenant  broken.  The  cov- 
enant, if  valid,  is  a  covenant  by  which  the  defendants  bound  them- 
selves to  receive  from  the  plaintiffs,  dealers  in  ice,  and  co-part- 
ners under  the  firm  of  the  Centennial  Ice  Company,  at  Pitts- 
ton,  Maine,  between  June  i,  1878,  and  October  i,  1878,  five  thousand 
tons  of  ice,  and  to  pay  them  for  it  at  the  rate  of  one  and  one-half 
dollars  per  ton,  and  to  pay  in  full  in  cash  at  said  rate  for  all  the  ice 
remaining  unshipped  October  i,  1878,  the  ice  so  remaining  to  be 
the  property  of  the  plaintiffs.  The  defendants  made  default  by  not 
receiving,  though  the  plaintiffs  were  ready  to  deliver,  the   ice  ac- 

^  A  portion  of  the  opinion  regarding  ratification  is  omitted. 

"  "An  agreement  'to  conserve  the  best  interests  of  the  agency'  adds  little,  if 
anything,  to  an  agreement  to  act  as  agent."  Morton,  J.,  in  Butterick  Pub.  Co. 
V.  Boynton,  191  Mass.  175,  179. 


MENTS. 

to  the  contract. 


and  second,  that  the 

(?s,  the  stipulated  dainaf,vi>  i>cuig  mai.i 

is:  Dtd  the  '-  bind  - 

t.  :    ■'.  ■/.  •   I-,.-!'  ■  ,    .  by  the  ]< 

led  by  their 

iL  1  '-•.. ' ! .  I  J.  J  v. .  1  .  M  attorney  '  ■  •  ' 
vg-reement  made  this  fiftt 


,  R.  1.,  , 
-ained  iu 
;s  between  "the  said  , 
i  ihe  second  '^'""^  "  ♦^''"• 
to  wit : 
'   -reunto  ainxcu  ni'.'i.r  naix-i^ 
■n, 
(Signed;     "J. 

"J.' 

"E.  G.  Baker. 

J  ..V    v;v.iv..i.v^a.ie-  «.-:.L^.i.     liiat  thc  executjon    .s.^.,  j.,.>. ...  ...^i. 

cause  the  instrument  does  not  contain  the  sicrnatures  of  the  pa^ 
''     *"  •  '  '  -lire  of  t' 

,  by  an  ?-■. 
'.  for  ill  1.5  ivir  u  :ii  the  name  of 


rial  provided  it  "j;i;ic'.ii  f  the  ini 

The 
tliias   vv  ilks,    [L.  S.].  ror  Janje^ 

...   -..]."   The  Court  of  Vvs'\  P.rndi  de^ 
s  good.     "Here  the  boi.  ecuted," 


1,  lor  li 


incted  the 

^...  . --;  .i.ij,  vi  ^ommerci:'^ 
ction  with  the  banks  wi 
vhich  would  properly  enr 

Mid  the  dc- 

;;  ling  powers 

and  the  authority  is  not 

or  vrliirh  i^  iT'^'-essary 

■e  not 

u  ic.-b  formal 

ial  traiisactions 

v/ liter,  especially 

'ird  tlie  asrent  has 


viioiity. 


-  leas,    July  12.  1884. 

•  if  rov  Tianf  broken.    The  cc 

?ants  bound  the,, 

n  il:    .iian.  •  ■ ',  and  co-pa' 

^ntennial   Ic-  inv,    at    Pit' 

.'iOctob  '  ■    •' 


't  the  r 


all  the  - 
I  ing  to 
ie  fault  by  n 


.y"  adds  little, 
itterick  Pub.  C 


SEALED   INSTRUMENTS.  I25 

cording  to  the  contract.  The  plaintiffs  sue  for  damages,  claiming 
the  stipulated  price  of  the  five  thousand  tons  as  liquidated  damages. 
The  defense  is,  first,  that  the  defendants  are  not  bound  because  the 
plaintiffs  were  not  bound  by  the  covenant,  the  obligations  thereof 
being  mutual  or  dependent;  and  second,  that  the  plaintiffs  can  re- 
cover only  their  actual  damages,  the  stipulated  damages  being  mani- 
festly designed  as  a  penalty. 

The  first  question  is :  Did  the  plaintiffs  bind  themselves  by  the 
covenant?  The  contract  was  not  executed  by  the  plaintiffs  in  person, 
but  it  was  negotiated  for  them  and  signed  by  their  agent,  J.  S.  Brad- 
street,  who  had  a  sufficient  power  of  attorney  under  seal.  The  con- 
tract begins  thus :  "Agreement  made  this  fifteenth  day  of  February, 
1878,  between  the  Centennial  Ice  Company,  of  Pittston,  Maine,  party 
of  the  first  part,  by  J.  S.  Bradstreet,  agent,  and  Joseph  K.  Baker,  of 
Dennisport,  Mass.,  and  E.  C.  Baker,  of  Providence,  R.  I.,  parties  of 
the  second  part,  witnesseth."  The  stipulations  contained  in  the  body 
of  the  instrument  purport  to  be  stipulations  between  "the  said  party 
of  the  first  part"  and  "the  said  parties  of  the  second  part,"  no  names 
being  given.     It  concluded  as  follows,  to  wit : 

"In  witness  whereof,  the  parties  have  hereunto  affixed  their  hands 
and  seals  the  year  and  day  first  above  written. 

(Signed)     "J.  S.  Bradstreet,  Agent.     [L.  S.] 
"J.  K.  Baker.  [L.  S.] 

"E.G.Baker.  [L.  S.]" 

The  defendants  contend  that  the  execution  was  ineffectual  be- 
cause the  instrument  does  not  contain  the  signatures  of  the  party  of 
the  first  part  by  their  agent,  but  only  the  signature  of  the  agent  him- 
self. Undoubtedly,  in  the  execution  of  a  deed  by  an  agent,  the  most 
approved  form  is  for  the  agent  to  sign  the  name  of  his  principal, 
writing  his  own  name  below,  with  the  word  "agent"  following,  and 
the  preposition  "by"  preceding  it.  See  City  of  Providence  v.  Miller, 
II  R.  I.  272,  277,  and  cases  there  cited.  But  the  form  is  not  mate- 
rial provided  it  appears  on  the  face  of  the  instrument  that  the  deed 
was  executed  by  the  principal  acting  through  his  agent  and  not  by 
the  agent  himself.  In  Wilks  v.  Back,  2  East  142,  an  arbitration 
bond  was  given  by  Mathias  Wilks  for  himself,  and  under  a  power, 
for  his  co-partner,  James  Browne.  The  signatures  were  affixed  as 
follows,  to  wit:  "Mathias  Wilks,  [L.  S.]."  "For  James  Browne, 
Mathias  Wilks  [L.  S.]."  The  Court  of  King's  Bench  decided  that 
the  execution  was  good.  "Here  the  bond  was  executed,"  say  the 
court,  "by  Wilks  for  and  in  the  name  of  his  principal,  and  this  is 
distinctly  shown  by  the  manner  of  making  the  signatures.  Not  even 
this  was  necessary  to  be  shown,  for  if  Wilks  had  sealed  and  delivered 
it  in  the  name  of  Browne,  that  would  have  been  enough  without  stat- 
ing that  he  had  so  done."  The  case  was  followed  with  approval  in 
Mussey  v.  Scott,  7  Cush.  215,  where  the  form  of  the  signature  was 
"B  for  A."    It  was  also  followed  by  the  Supreme  Court  of  Vermont 


126  EXECUTION    OF   AUTHORITY. 

in  McDaniels  v.  Flower  Brook  Manuf.  Co.,  22  Vt.  274.  There  the 
operative  clauses  were  in  the  name  of  the  corporation  "by  William 
Wallace,  their  agent ;"  the  covenants  were  in  the  name  of  the  corpora- 
tion. The  deed  concluded,  "In  witness  whereof,  we  have  hereunto  set 
our  hand  and  seal,"  and  the  signature  was,  "William  Wallace,  Agent 
for  the  Flower  Brook  Manufacturing  Company."  The  court  said 
that  the  execution,  in  connection  with  what  preceded  it,  must  be  un- 
derstood to  be  an  execution  in  the  name  of  the  company.  And  see 
to  the  same  effect,  Martin  v.  Almond,  25  Mo.  313.  It  seems  to  us 
that  there  is  no  material  distinction  between  these  cases  and  the  case 
at  bar.  The  case  at  bar  would  be  identical  with  them  if  the  words 
"for  the  Centennial  Ice  Company"  had  been  added  to  the  signature. 
But  those  words,  if  added,  would  express  nothing  which  is  not 
expressed  without  them  by  the  signature,  taken  in  connection  with 
the  testimonium  clause  and  covenant  which  precede  it.  The  seal 
is  stated  in  said  clause  to  be  the  seal  of  the  principals,  and  the 
hand  to  be  their  hand,  evidently  because  the  agent  signed  for 
them.  In  Abbey  v.  Chase,  6  Cush.  54,  and  Ellis  v.  Pulsifer  et  al., 
4  Allen  165,  the  Supreme  Judicial  Court  of  Massachusetts  de- 
cided that  such  an  execution  did  not  bind  the  agents,  the  action 
being  against  the  agents,  but  expressly  refrained  from  saying  that  it 
did  not  in  their  opinion  bind  the  principals.  See,  also,  Varnum, 
Fuller  &  Co.  v.  Evans,  2  McMullan  409 ;  Hunter's  Admr's  v.  Miller's 
Exec'rs,  6  B.  Mon.  612;  Bryan  v.  Stump,  8  Gratt.  241;  M'Ardle 
v.  The  Irish  Iodine  Company,  15  Ir.  C.  L.  Rep.  146.  It  is  true  that 
some  of  the  textbooks  say,  and  some  of  the  cases  seem  to  imply,  that 
the  name  of  the  principal  must  necessarily  appear  in  the  signature. 
But  we  do  not  see  the  necessity.  When  A,  being  agent  for  B,  signs 
the  deed,  "A  for  B,"  or  "A,  agent  for  B,"  his  own  name  is  the  sig- 
nature, the  other  words  being  used  to  denote  that  he  makes  the  sig- 
nature, not  for  himself,  but  for  his  principal.  And  surely,  if  this  be 
so,  it  is  unnecessary  to  use  those  words  if  the  thing  which  is  denoted 
by  them  be  otherwise  apparent.. 

The  defendants  cite  and  rely  on  Townsend  v.  Corning,  23  Wend. 
435;  Townsend  v.  Hubbard,  4  Hill  (N.  Y.)  351;  Brinley  v.  Mann, 
2  Cush.  337;  Lessee  of  Clarke  v.  Courtney,  5  Pet.  319,  350;  but  in 
each  of  these  cases  the  deed  was  not  only  signed  in  the  name  of  the 
agent,  but  the  seal  was  stated  in  the  testimonium  clause  to  be  his  seal. 
Of  course  the  deed  could  not  be  the  deed  of  the  principal  unless  the 
seal  was  his  seal.  Indeed,  in  Townsend  v.  Hubbard,  supra,  Chan- 
cellor Walworth  declared  that  no  particular  form  of  words  is  neces- 
sary to  make  the  deed  the  deed  of  the  principal,  "provided  it  appears 
upon  the  face  of  the  instrument  that  it  was  intended  to  be  executed  as 
the  deed  of  the  principal,  and  that  the  seal  affixed  to  the  instrument 
is  his  seal  and  not  the  seal  of  the  attorney  or  agent  merely."  In 
Bellas  V.  Hays,  5  Serg.  &  R.  427,  likewise  cited  for  the  defendants, 
it  did  not  appear  that  the  seal  was  the  seal  of  the  principal,  there  be- 


i 


■■;  -  \vas  assumed  tj  be  the  seal  ' 

;       ;•  iied  his  own  name  simply,  wi 

••word    ;iL/-   L    .i;  ;  •  i.ictj.    1  he  counsel  for  the  defendants  G 
iI:l;  words  ('t  J'^idgc  Story  in  Lessee  of  Clarke  v.  Cotf-nc  •,      ^ 
that  "the  lavy  Icx^ks  not  to  the  intent  alone,  but  to  the  ether 

that  int'"*  '        '~>een  executed  in  such  manner  as  +'■  ■•'^^' 

validit} .  ubtedly.    But,  in  his  work  on  Ag 

ireatir.L  natter,  says :  "In  all  cases  where  the  u 

]'!(»-  ■■■■■■  to  be  intended  to  be  the  deed  of  the 

['-,c  on  of  it  by  the  agent,  hov^-ever 

i::  ^    ;^nant  to  that  purport,  it  would  pr 

deed  of  the  principal,  especially  where  the  in 
that  the  principal  has  thereto  affixed  his  seal."  c.-^- 
V  1  '  53,  cited  in  Martin  v.  Almond,  supra.     Our  con- 

hintiffs  were  bound  by  the  contra^^'    "•   '    ''"- 
can  be  maintained.^     *     *     *  2 


DAWbU.\  V.  COTTON. 

jUPREme  Court  of  Alabama.    26  Ala.  591. 

i:  tion  (Henry  T.  Dawson  v.  Cyrus  Cotton)  the  writ  wa^ 

in  iwj/;-'/ v,/,  and  the  declaration  in  debt,  on  a  promissory  not-       ' 
which  thi'  following  is  a  copy: 

f;  Twenty  days  after  date  I  promise  to  pay  to  James  Thomp- 

son, or  ■.M-  \tT,  four  hundred      -  '  '-  -ty-two  dollars,  value  recr'  -: 
Given  under  my  hand  and  sea  i  day  of  December,  A.  D. 

'  iiEi«:jAMiN  Watson,       [seal] 

"Agent  for  Cyrus  Cotton,  Sen." 

The  plaintiff  declared  ps  the  endorsee  of  the  payee:  and  the  de- 

■  ■  '  'ayment,  and  non  est  fee 

\>'  ..    On  the  trial,  as  the  bili 

'    imtiti  ortcrcd  in  evidence  the  note  declared  on 
ill...  c!;  .-;  >.  :;;c:ri:  thereon;  and  the  defendant  '.inf^rr.r]  to  its  ■ 
duction  "on  the  specific  and  single  ground  v  s  not,  c 

■^'■c  of  the  notf    '"  "'      - :d  and  sealed  in  >iiui  ;i  man:"- 

he  the  defer  it  the  agent  only  by  whom  il 

decided  tha 
re  the  jurv. 
'ained  tiie.uDit'ct  ,t  from  t' 


lie  UcCtJ  Oi   i\.. 


-I  IIL'IC    KIC 


'id  se£ii, 

.nver   r^ 


■pressed 

.he  te'^ii'i' 
is  stai 
hand    lu    ■ 
•  hem.    In 


imtun- 


i  "by  William 

jf  the  corpora- 

vt  hereunto  set 

lui  Wallace,  Agent 

:  ;■      ,."'    The  court  said 

I  with  what  preceded  it,  must  be  un- 

'   Mme  of  the  company.    And  see 

J,  25  Mo,  313.    It  seems  to  us 

ctween  these  cases  and  the  case 

ientical  with  them  if  the  words 

•-d  been  adde<l  to  the  signature. 

expr?>^s  nothing  which   is  not 

ken  in  connection  with 

'"ccede  it.    The  seal 

irincipals,  and  the 

agent  signed   for 

-  V.  Pulsifer  et  al., 

.;    Lcuii   i;i;    Massachusetts    de- 

K^t  bird  the  agents,  the  action 

:  led  from  saying  that  it 

..   ,.     .    ,    .s.     See,  also,  Varnum, 

an  409 ;  Hunter's  Admr's  v.  Miller's 

■'    Stump,  "^  '  ■    •        "i;  M'Ardle 

,    C.  L.  1< •  :.  true  that 

c^.ni  10  imply,  that 

.ir  in  the  signature. 

iiuii  A,  bciiig-  agent  for  B,  signs 

'■?r  B,"  his  own  name  is  the  sig- 

j  denote  that  he  makes  the  sig- 

rincipal.    And  surely,  if  thijs  be 

ds  if  the  thing  which  is  denoted 


the  de 
is  his 
Bellas 


ling,  23  Wend. 

Y.)  351  ;  Brinley  v.  Mann, 

iiey,  5  Pet.  319,  350;  but  in 

\   signed  in  the  name  of  the 

'-/niinr,  i-i:iii-r-  i<,  bc  liis  scal, 

unless  the 

■Va,  Chan- 

;-  is  neces- 

ic  appears 

xecuted  as 

instrument 

rely,"     In 

lie  defendants, 


SEALED   INSTRUMENTS.  I27 

ing  no  testimonium  clause,  and  it  was  assumed  to  be  the  seal  of  the 
agent.  The  agent,  moreover,  signed  his  own  name  simply,  without 
the  word  "agent"  appended.  The  counsel  for  the  defendants  quotes 
the  words  of  Judge  Story  in  Lessee  of  Clarke  v.  Courtne}^  supra, 
that  "the  law  looks  not  to  the  intent  alone,  but  to  the  fact  whether 
that  intent  has  been  executed  in  such  manner  as  to  possess  a  legal 
validity."  Undoubtedly.  But,  in  his  work  on  Agency,  Judge  Story, 
treating  of  this  matter,  says :  "In  all  cases  where  the  instrument  pur- 
ports on  its  face  to  be  intended  to  be  the  deed  of  the  principal,  and 
the  mode  of  execution  of  it  by  the  agent,  however  irregular  and 
informal,  is  not  repugnant  to  that  purport,  it  would  probably  be  con- 
strued to  be  the  deed  of  the  principal,  especially  where  the  in  testi- 
monium clause  is  that  the  principal  has  thereto  affixed  his  seal."  Story 
on  Agency,  §  153,  cited  in  Martin  v.  Almond,  supra.  Our  con- 
clusion is  that  the  plaintiffs  were  bound  by  the  contract,  and,  there- 
fore, that  the  action  can  be  maintained.^     *     *     *  2 


DAWSON  V.  COTTON. 

1855.     Supreme  Court  of  Alabama.     26  Ala.  591. 

In  this  action  (Henry  T.  Dawson  v.  Cyrus  Cotton)  the  writ  was 
in  assumpsit,  and  the  declaration  in  debt,  on  a  promissory  note,  of 
which  the  following  is  a  copy : 

"$442.  Twenty  days  after  date  I  promise  to  pay  to  James  Thomp- 
son, or  order,  four  hundred  and  forty-two  dollars,  value  received. 
Given  under  my  hand  and  seal  this  22d  day  of  December,  A.  D.  1835. 

"Benjamin  Watson,       [seal] 

"Agent  for  Cyrus  Cotton,  Sen." 

The  plaintiff  declared  as  the  endorsee  of  the  payee ;  and  the  de- 
fendant pleaded,  nil  debet,  payment,  and  iion  est  factum,  the  last 
plea  being  verified  by  affidavit.  On  the  trial,  as  the  bill  of  exceptions 
discloses,  the  plaintiff  offered  in  evidence  the  note  declared  on,  with 
the  endorsement  thereon;  and  the  defendant  objected  to  its  intro- 
duction "on  the  specific  and  single  ground  that  it  was  not,  on  the 
face  of  the  note  itself,  signed  and  sealed  in  such  a  manner  as  to 
make  the  defendant  liable,  but  the  agent  only  by  whom  it  was  exe- 
cuted (if  any  one)  was  liable.  The  court  decided  that  said  note,  on 
its  face,  was  absolutely  inadmissible  before  the  jury,  and  therefore 
sustained  the  objection  to  it  and  excluded  it  from  the  jury ;"  to  which 

^  A  portion  of  the  opinion  is  omitted. 

°In  Mussey  v.  Scott,  7  Cush.  (Mass.)  215,  it  was  held  that  a  deed  executed 
"B  for  A"  is  the  deed  of  A. 


128  EXECUTION    OF   AUTHORITY. 

ruling  of  the  court  the  plaintiff  excepted  and  was  forced  to  take  a 
nonsuit. 

This  ruling-  of  the  court  is  now  assigned  for  error. 

Chilton,  C.  J. — The  sole  question  in  this  case  is  whether  the 
note  offered  in  evidence,  unaccompanied  with  any  offer  of  extraneous 
proof  explanatory  of  it,  was  proper  evidence  for  the  jury;  in  other 
words,  whether  it  created,  prima  facie,  an  obligation  upon  Cotton, 
the  alleged  maker.    It  is  in  these  words : 

"Twenty  days  after  date  I  promise  to  pay  to  James  Thompson,  or 
order,  four  hundred  and  forty-two  dollars,  value  received.  Given 
under  my  hand  and  seal  this  22d  day  of  December,  1835. 

"(Signed)     Benjamin  Watson,       [seal] 

"Agent  for  Cyrus  Cotton,  Sen." 

In  Martin  v.  Dortch,  i  Stew.  479,  a  sealed  instrument,  executed 
substantially  as  the  above,  was  held  to  be  well  executed  by  the  person 
for  whom  the  maker  described  himself  as  agent ;  but  this  decision 
was  virtually  overruled  in  Skinner  v.  Gunn,  9  Porter  305,  and  (we 
think)  cannot  be  regarded  as  a  correct  exposition  of  the  law.  We 
perceive  no  difference,  in  principle,  between  this  case  and  that  of 
Skinner  v.  Gunn,  supra.  True,  in  that  case  the  body  of  the  instru- 
ment read,  "I,  Isaac  Hughes,  for  and  in  consideration,"  etc.,  and 
concluded,  "In  witness  whereof  I  have  hereunto  set  my  hand  and 
seal — (Signed)  I.  Hughes  [seal],  Attorney  for  Livingston  Skin- 
ner," while  in  this  case,  the  name  is  not  put  in  apposition  with  the 
pronoun.  But  it  is  too  clear  to  admit  of  any  doubt  that  the  pro- 
noun stands  for  Watson,  whose  seal  is  attached,  and  who,  in  the 
attestation,  says,  "witness  my  hand  and  seal."  It  is,  in  our  opinion, 
the  seal  and  obligation  of  Watson,  and  the  addition  of  "Agent  for 
Cyrus  Cotton,  Sen.,"  must  be  regarded  as  descriptive  of  the  person. 
See  Carter  v.  Doe  ex  dem.  Chandron,  21  Ala.  Rep.  72,  where  the 
principle  here  involved  is  incidentally  discussed  and  a  number  of 
the  authorities  cited.  Story  on  Agency,  §  151 ;  Story  on  Contracts 
(3d  ed.),  §§  141,  142.  Whether  a  different  interpretation  might 
not  be  given  to  the  instrument,  if  it  had  not  been  under  seal,  it  is  not 
necessary  now  to  decide. 

Let  the  judgment  be  affirmed.^ 

^Accord:   Kiersted  v.  Orange,  etc.,  R.  R.  Co.,  69  N.  Y.  343. 

"The  rule  is  unquestioned,  that  a  conveyance  executed  by  an  agent  or  attor- 
ney, to  operate  in  a  court  of  law  as  a  transfer  of  the  right  and  interest  of  the 
principal  must  be  made  in  the  name  of  the  principal  and  must  be  executed  as 
his  deed.  There  is  no  rule  of  law  more  firmly  settled,  and  supported  by  greater 
uniformity  of  decision,  though  it  may  seem  narrow  and  technical,  and  may  often 
operate  [to]  the  disappointment  of  the  clear  and  manifest  purpose  and  inten- 
tion of  the  parties."  Brickell,  C.  J.,  in  Taylor  v.  Agricultural,  etc.,  Assn.,  68 
Ala.  229,  237. 

See  Woodbury  v.  King  (N.  Car.),  68  S.  E.  221. 


HAZEN. 

;e  Court  of  Connecticut.    4  Conn.  495. 

-Did  the  defendant  bind  himself  by  his  covenants 

the  next  question.    The  dec  '     +c-d  by  him 

Hazen,  Administrator,"  and  lants  were 

ds:   "I,  the  said  Ehjah,  do  f'  .  -  heirs, 

nistrators,  covenant  with  the  :v,  his 

.at  at  and  until  the  ensealing  I 

c  premises,  as  a  good,  indefei. .:- 

od  right  to  bargain  and  sell  the  same  -r 

''•*'"en;and  that  the  same  is  free  from  <.... 

cept  as  above."     These  covenants  n>. 
,1.  lit  r.v  '    -jcileat  quam  pereat, 

i^'rtn  '^f  es  at  the  time  of  mai 

ibL  ni  respect  of  their  meanin 
-ich  is  the  most  strong  agains, 
d  to  the  other  party.    Hookes  v.  Swain,  i  Lev. 
^  ^ i. ;.  Amner  V.  Luddingt-^'"    '^"'^   ,''r>-  t  n,,'c;tr-   t-t- 
Lit.  134;  Plowd.  156. 
'  ' .  clear  that  the  power  01  sale  given  by  ine  :_ourt 
df^fendant,   without   prescribing  the  manner  in 
ited,  authorized  him  to  make  such  an  instru- 
\-  proper  for  the  conveyance  of  the  deceased's 
.'.  Eyre,  i  P.  Wms.  741 ;  4  Cruise's  Dig.  254. 
^  not  required  by  his  duty  and  trust  to  enter  into 
■I  •:        imt  for  the  security  of  the  title  to  the  property 
lor  for  rhe  validity  of  the  conveyance,  and  it  h. 
ihat  for  this  pnrpos;e  he  had  authority  to  hinn 

■.     It  is  unq^' 
is  formal  ani: 
and  vox  et  preterca  nthiL  .\ 
.    ........  .    enter  into  covenant,  1"<   '*^'" 

ose  to  excite  in  this  manner  the 
T'-ir.:    the  proceeds  of  the  sale,  -.i; 
•At  to  do  anvthing  that  for  th< 
Mjard's  ^'~ 
constri! 
nng  on  him  personally,  for  they  can 
1      ^r>  If  the  words  of  his  ...v;  :ini 
and  he  only,  int.  <.. 

tenanted 


..;^aiAUD  C.vSi,i,. 


rtiUiig-  01  the  court  tnc 

fir,rt<iiif 

•ig  of  the 

C.  J- 

.  in  evid'. 


3  lorccu  to  take  a 

lOr  error, 

this  case  is  whether  the 
ith  any  offer  of  extraneous 
nee  for  the  jury;  in  other 
!i  obHjjfation  upon  Cottoi' 


SU'. 
fO! 

tiiiriki 

JK-, 

Sk 


pronoun.     But 
noun  stand  =;  +~ 
attestation, 
the  se.-'' 
Cyrus  ■ 
See  Carter 


1-1 


>.nes  1  iiompson,  or 
.  received.  Given 
•,  1835. 

[seal] 
us  Cotton,  Sen." 

trument,  executed 
ated  by  the  person 
■ent;  but  this  decision 
'  T'-rter  305,  and  (we 
of  the  law.     We 
.  case  and  that  of 
■  tdy  of  the  instru- 
'  n,"  etc.,  and 
illy  Iiand  and 
lor  Livingston  Skir 
m  apposition  with  tli. 
•  doubt  that  the  pro 
hed,  and  who,  in  ti. 
It  is,  in  our  opinion, 
■  ■    ion  of  "Agent  fo. 
Live  of  the  person 
>!.  Rep.  "J 2,  where  the 
1'  .-rnd  a  number  of 
on  Contracts 
"■^'on  might 
i,  it  is  not 


-iersted  v 

"  i  he  r;;ic  is  unq 
ney,  to  operate  in 


t  or  attor- 
T^%\.  of  the 


opt 
tioii 

Ala.  2i!y 
See  W 


and  inten- 


SEALED   INSTRUMENTS.  I29 

MITCHELL  V.  HAZEN. 
1823.     Supreme  Court  of  Connecticut.     4  Conn.  495. 

HosMER,  Ch.  J. — Did  the  defendant  bind  himself  by  his  covenants 
personally?  This  is  the  next  question.  The  deed  executed  by  him 
was  signed,  "Elijah  Hazen,  Administrator,"  and  his  covenants  were 
in  the  following  words:  "I,  the  said  Elijah,  do  for  myself,  my  heirs, 
executors  and  administrators,  covenant  with  the  said  Timothy,  his 
heirs  and  assigns,  that  at  and  until  the  ensealing  of  these  presents,  I 
am  well  seised  of  the  premises,  as  a  good,  indefeasible  estate  in  fee- 
simple  ;  and  have  good  right  to  bargain  and  sell  the  same  in  manner 
and  form  as  above  written ;  and  that  the  same  is  free  from  all  incum- 
brances whatsoever,  except  as  above."  These  covenants  must  be 
construed  with  effect,  ut  res  niagis  valcat  qiiaui  pereat,  and  corre- 
spond with  the  intention  of  the  parties  at  the  time  of  making  them ; 
and  if  there  remains  any  doubt  in  respect  of  their  meaning,  they  are 
to  be  taken  in  that  sense  which  is  the  most  strong  against  the  cove- 
nanter and  beneficial  to  the  other  party.  Hookes  v.  Swain,  i  Lev. 
102;  s.  c.  I  Sid.  151 ;  Amner  v.  Luddington,  And.  60;  i  Bulstr.  175; 
Hob.  304;  Co.  Lit.  134;  Plowd.  156. 

It  is  indisputably  clear  that  the  power  of  sale  given  by  the  court 
of  probate  to  the  defendant,  without  prescribing  the  manner  in 
which  it  was  to  be  executed,  authorized  him  to  make  such  an  instru- 
ment only  as  was  legally  proper  for  the  conveyance  of  the  deceased's 
estate.  Longford  v.  Eyre,  i  P.  Wms.  741 ;  4  Cruise's  Dig.  254. 
The  defendant  was  not  required  by  his  duty  and  trust  to  enter  into 
any  personal  covenant  for  the  security  of  the  title  to  the  property 
conveyed,  nor  for  the  validity  of  the  conveyance,  and  it  has  not  been 
contended  that  for  this  purpose  he  had  authority  to  bind  the  heir  of 
the  deceased  or  to  subject  the  assets.  It  is  unquestionable  that  un- 
less he  bound  himself  personally  his  formal  and  solemn  covenants 
under  seal  were  a  nonentity,  and  vox  et  preterca  nihil.  Although  he 
was  under  no  obligation  to  enter  into  covenant,  he  was  at  liberty  to 
do  it,  if  he  chose  to  excite  in  this  manner  the  confidence  of  pur- 
chasers, or  to  enlarge  the  proceeds  of  the  sale,  upon  the  general 
principle  that  a  covenant  to  do  anything  that  for  the  substance  and 
matter  of  it  is  lawful  is  good.  Sheppard's  Touchstone,  159.  If  the 
covenants  of  the  defendant  are  to  be  construed  as  having  any  effect, 
they  must  be  considered  as  binding  on  him  personally,  for  they  can 
be  obligatory  on  no  other  person.  So  if  the  words  of  his  covenant 
are  at  all  indicative  of  his  meaning,  he,  and  he  only,  intended  to  be 
holden  to  the  performance  of  them. 

It  is  worthy  of  remark  that  he  has  covenanted,  not  only  for  him- 
self, but  for  his  heirs,  executors  and  administrators,  which  places 
his  intention  in  an  irrefragible  light.  With  respect,  then,  to  the  in- 
9 — Reinhard  Cases. 


130  EXECUTION    OF   AUTHORITY. 

tentions  of  the  covenanter,  or  the  effect  of  his  covenants,  there  can 
exist  no  serious  question,  unless  the  mind  Avill  admit  the  palpable 
absurdity  that  he  meant  nothing.  There  being-  subjoined  to  this 
signature  the  word  "administrator,"  and  the  subject-matter  of  his 
conveyance  being  the  estate  of  other  persons,  cannot  invalidate  the 
construction  given  to  his  act.  The  former  was  unnecessarily,  I  admit, 
a  descriptio  persona  only,  and  the  latter  is  not  prohibitory  of  any  law- 
ful agreement  he  should  please  to  make.  It  has  long  been  an  estab- 
lished principle  that  whenever  a  man  undertakes  to  stipulate  for  an- 
other by  an  instrument  under  seal,  without  authority,  or  beyond 
authority,  he  is  answerable  personally  for  the  non-performance  of 
his  contracts ;  and  if  he  choose  to  bind  himself  by  a  personal  cove- 
nant, he  is  legally  liable  for  a  breach  of  it,  even  although  he  describe 
himself  as  covenanting  as  trustee,  agent,  executor  or  administrator. 
Appleton  V.  Binks,  5  East  148 ;  Thacher  v.  Dinsmore,  5  Mass.  299 
(4  Am.  Dec.  61)  ;  Sumner  v.  Williams,  8  Id.  162  (5  Am.  Dec.  83)  ; 
Duvall  V.  Craig,  2  Wheat.  45 ;  White  v.  Cuyler,  6  T.  R.  176;  Wilkes 
V.  Back,  2  East  142 ;  Tippets  v.  Walker,  4  Mass.  595  ;  Thayer  v. 
Wendall,  i  Gall.  37. 

The  determinations  in  Sumner  v.  Williams  and  Duvall  v.  Craig  go 
the  full  length  of  the  present  case,  and  are  applicable  to  it  on  a 
principle  of  strict  analogy.  The  case  of  Coe  v.  Talcott,  5  Day  88,  is 
a  strong  authority  in  support  of  the  opinion  expressed,  and  contains 
this  important  principle :  that  "a  trustee  acting  within  his  powers 
does  not  render  himself  liable  on  his  contracts  and  conveyances ;  but 
wherever  he  exceeds  his  powers  and  undertakes  to  transfer  and  con- 
vey without  authority,  he  becomes  personally  answerable  to  the 
grantee  on  his  covenants."  This  is  precisely  the  case  before  the 
court.  The  defendant  exceeded  the  powers  with  which  he  was  in- 
vested, and  undertook  to  transfer  and  convey,  in  a  manner  which 
he  had  no  right  to  do,  and,  therefore,  without  authority.  It  results, 
then,  that  he  is  personally  liable,  on  the  principle  of  the  case  last 
cited,  as  well  as  on  the  other  legal  grounds  before  discussed. 


HALE  V.  WOODS. 

1839.     Superior  Court  of  Judicature  of  New  Hampshire.     10 

N.  H.  470. 

The  deed  of  an  attorney  must  be  in  the  name,  and  purport  to  be 
the  act  and  deed  of  the  principal. 

Where  the  grant  and  covenants  of  the  deed  were  in  the  name  of 
the  principal,  and  the  attorney  executed  the  deed  as  follows :  "D.  K., 
attorney  for  Z.  K.,"  it  was  held  to  pass  the  interest  of  the  principal. 


iV. 


•tly  in  K. 

'!  lie  vidence,  m  support  of  his  title,  a  deec 

f  andZachariah  K"'-   i    li  r  ,i -Tn-irrlj^nr. 
rth  in  the  opinici  t 

.  to  rtffiie  it  i"  '^'  ~  ""e.     . 
flnlv  empo\  Zachariah  .e  the 

aer  ihe  deed  ■  ' 

well  as  of 
nants  m  icribed  •  d. 

If   M    r:.:-:-  ,   _..  . __.:,     file    /  I'cM    thc   titlC 

nanded   premise - 

•  le  in  only  one-f  .  M-.i...  ■■...-.,. 

the  iiirv  that  th  1  inter e^  ariah 

1. 

mt,  for  one-half  of  the 
lit  riioved  to  set  the  same 

an  attorney,  to  be  valid,  must  be  in  the 
:t  and  deed  of  the  principal.    Fowler  v. 
■V.  Shaw,  i6  Mass.  42;  Stinchfield  v. 
11  V.  Shaw,  I   Greenl.  339;  Cofran  v. 
-prornery  v.  Dorion,  7  N.  H.  ^1^4.    Bii' 
■struraent  n 
■   ?.ny  partic' 
as  in  other 


rules  of  law.    Jack-  tt,  16 

n,  I  Mass.  219;  L'a 


id  forev 


lous  qu 

,1   1. .,  , 


rovcnauts,  there  can 

•  the  palpable 

'•  '^d  to  this 

'er  of  his 

lidate  the 

I  admit, 


imiate  for  an- 
!y,  or  beyond 
rfonnance  of 
-  onal  cove- 
.0  describe 
tdiuinistrator. 
,  5  Mass.  200 
Mil.  Dec 
■.  I76;V 
JS  •>  Tha; 

ill  V.  Craig  go 
>le  to  it  on  a 
,  5  Day  88,  is 
!  contains 
...  is  powers 

::ontract  mces ;  but 

mdertakv  .  ,..  ..u-^r  and  con- 
personally  an.^werable  to  the 
!)efore  the 
e  was  in- 
'  a  manner  which 
iiority.     It  results, 
uciplc  of  the  case  last 


and  purport 

J  re  in  the  name  of 

-  Hows:  "D.  K.. 

r  the  principal 


SEALED   INSTRUMENTS.  I3I 

Writ  of  entry,  to  recover  a  tract  of  land  situated  partly  in  IStashua 
and  partly  in  Mollis,  in  the  county  of  Hillsborough. 

The  demandant  gave  in  evidence,  in  support  of  his  title,  a  deed 
from  Daniel  King,  for  himself  and  Zachariah  King,  to  the  demandant. 
The  tenor  of  the  deed  is  set  forth  in  the  opinion  of  the  court,  so  that  it 
becomes  unnecessary  to  recite  it  in  the  case. 

Daniel  King  was  duly  empowered  by  Zachariah  to  execute  the 
deed ;  and  the  only  question  was,  whether  the  deed  was  duly  executed 
to  pass  the  interest  of  Zachariah  as  well  as  of  Daniel,  they  being 
tenants  in  common  of  the  premises  described  in  the  deed. 

If  it  passed  the  interest  of  Zachariah,  the  demandant  held  the  title 
of  one-half  the  demanded  premises.  If  it  passed  Daniel's  right 
merely,  he  held  the  title  in  only  one-fourth  of  the  demanded  premises. 

The  court  directed  the  jury  that  the  title  and  interest  of  Zachariah 
were  transferred  to  the  demandant  by  the  deed. 

The  jury  returned  a  verdict  for  the  demandant,  for  one-half  of  the 
demanded  premises,  and  the  tenant  moved  to  set  the  same  aside  for 
misdirection  of  the  court. 

Upham,  J. — The  deed  of  an  attorney,  to  be  valid,  must  be  in  the 
name,  and  purport  to  be  the  act  and  deed  of  the  principal.  Fowler  v. 
Shearer,  7  Mass.  14;  Ellwell  v.  Shaw,  16  Mass.  42;  Stinchfield  v. 
Little,  I  Greenl.  231;  Ellwell  v.  Shaw,  i  Greenl.  339;  Cofran  v. 
Cochran,  5  N.  H.  459 ;  Montgomery  v.  Dorion,  7  N.  H.  484.  But 
whether  such  is  the  purport  of  an  instrument  must  be  determined 
from  its  general  tenor,  and  not  from  any  particular  clause.  Such 
construction  must  be  given  in  this,  as  well  as  in  other  questions  aris- 
ing on  conveyances,  as  shall  make  every  part  of  the  instrument  op- 
erative as  far  as  possible ;  and  where  the  intention  of  the  parties  can 
be  discovered,  such  intention  should  be  carried  into  efifect,  if  it  can 
be  done  consistently  with  the  rules  of  law.  Jackson  v.  Blodgett,  16 
Johns.  172;  Bridge  v.  Wellington,  i  Mass.  219;  Davis  v.  Hayden, 
9  Mass.  514;  Hatch  v.  Dwight,  17  Mass.  289. 

The  deed  which  is  under  consideration  in  this  case  was  executed 
by  Daniel  King,  for  himself  and  for  Zachariah  King,  a  joint  owner 
of  the  land.  The  terms  of  the  conveyance  are :  "I,  Daniel  King,  as 
well  for  myself  as  attorney  for  Zachariah  King,  doth  for  myself  and 
the  said  Zachariah,  remise,  release,  and  forever  quitclaim  the  prem- 
ises described  in  the  deed,  together  with  all  the  estate,  right,  title, 
interest,  use,  property,  claim  and  demand  whatsoever,  of  me,  the  said 
Daniel  and  said  Zachariah,  which  we  now  have,  or  heretofore  had  at 
any  time  in  said  premises.  And  we,  the  said  Daniel  and  Zachariah, 
do  hereby,  for  ourselves,  our  heirs  and  executors,  covenant  that  the 
premises  are  free  from  all  incumbrance,  and  that  the  grantee  may 
quietly  enjoy  the  same  without  any  claim  or  hindrance  from  us,  or 
any  one  claiming  under  us,  or  either  of  us.  In  witness  whereof,  we, 
the  said  Daniel,  for  himself,  and  as  attorney  aforesaid,  have  hereunto 
set  our  hands  and  seals,"  etc.    Signed,  Daniel  King,  and  also,  "Daniel 


132  EXECUTION    OF   AUTHORITY. 

King,,  attorney  for  Zachariah  King,  being  duly  authorized  as  appears 
of  record,"  with  seals  affixed  to  each  signature. 

The  covenants  in  this  case  in  the  deed  are  clearly  the  covenants  of 
the  principal,  and  we  think,  from  the  terms  used,  the  grant  purports 
to  be  the  act  of  the  principal.  The  grant  is  for  said  Daniel  and 
Zachariah,  of  all  the  interest  which  zve  now  have  or  have  heretofore 
had  in  the  premises.  If  these  terms,  together  with  the  covenants, 
purport  a  conveyance  of  the  interest  of  the  principal,  the  execution 
of  the  deed  would  seem  to  be  sufficient  to  effect  the  intent  of  the 
instrument. 

In  Wilks  V.  Back,  2  East.  142,  the  court  say :  "There  is  no  par- 
ticular form  of  words  required  to  be  used,  provided  the  act  be  in  the 
name  of  the  principal,  for  where  is  the  difference  between  signing  I. 
B.,  by  M.  W.,  his  attorney  (which  must  be  admitted  to  be  good),  and 
M.  W.  for  I.  B.  ?  In  either  case  the  act  of  sealing  and  delivery  is  done 
in  the  name  of  the  principal,  and  by  his  authority.  Whether  the 
attorney  put  his  name  first  or  last,  cannot  affect  the  validity  of  the 
act  done."  2  Stark  Ev.  477,  605 ;  see  also,  Montgomery  v.  Dorion, 
7  N.  H.  484,  where  the  principle  of  the  case  of  Wilkes  v.  Back  is 
fully  sustained. 

We  are  of  opinion  that  the  deed  as  executed  passed  the  title  both 
of  Daniel  and  Zachariah  King.  The  plaintiff  is,  therefore,  entitled 
to  recover  one-half  the  demanded  premises,  and  judgment  will  be 
entered  on  the  verdict  for  that  amount.^ 


WOOD  V.  GOODRIDGE  and  another. 
1850.     Supreme  Judicial  Court  of  Massachusetts.     6  Cush.  117. 

This  was  an  action  of  trespass  to  land. 

Benjamin  Goodridge,  Sr.,  of  Lunenburg,  on  the  12th  of  April, 
1832,  executed  and  delivered  to  Levi  Goodridge,  one  of  the  defend- 
ants, under  his  hand  and  seal,  and  in  the  presence  of  subscribing 
witnesses,  a  power  of  attorney,  of  which  the  following  is  a  copy : 

"Know  all  men  by  these  presents,  that  I,  Benjamin  Goodridge,  of 

^"The  objection  to  the  admission  of  the  deed  was,  that  the  name  of  the  at- 
torney, instead  of  the  name  of  the  principal,  was  signed  to  it.  There  was, 
however,  enough  on  the  face  of  the  deed  to  show  that  the  attorney,  in  thus 
signing  his  own  name,  was  acting  as  attorney  and  not  as  principal.  That  be- 
ing so,  the  deed  was  unquestionably  a  good  execution  of  the  power  in  equity." 
Benning,  J.,  in  Tenant  v.  Blacker,  27  Ga.  418,  421. 

"No  particular  form  of  words  is  necessary  for  an  agent  to  bind  his  princi- 
pal, if  he  expresses  in  the  instrument  the  capacity  in  which  he  acts.  Deeds 
are  to  receive  a  construction  from  the  whole  taken  together ;  and  every  deed 
ought  to  be  so  construed  as  to  effect  the  intention  of  the  parties."  Peters,  J., 
in  Magill  v.  Hinsdale,  6  Conn.  464,  469. 


STRUMENT5.  133 

.   in  the  of   Worcester   and   common  wealth   of 

.;■,   for  a  g-Qod  consider.-;  ^ 

■  .  ?.nd  appointed,  and  do  he  ■  i 

,   Levi  c,  of  the  same  1 

iid  lawfv  y,  for  me  and  i.  r 

and  use,  to  buy  and  sell  real  and  pert  ;jerty,  and 

Orient  deeds  to  make,  execute  and  delr  \  naqie,  in 

.1  conveying  the  same,  also  for  me  v  name  to 

:.!':'"       •  :'' "  in  law  for  tl).  '     ' ' 

- :  and  vindii . 
to  be  i 
ly  do  I  • 
mill,  and  buy  and  sell  logs,  >.. 

things  in  an-l  -1v..'t  the  same, ^    ..  -..  . 

for  the  pro)  jrovement  and  use  of  such 

means  as  I  p  •-.-:--,  tor  the  enlargem' -^   ■■'  ■    ' 
'ng  and  confirming  whatsoever  my  sa' 
:■■:  ui  the  premises  as  fully  and  effectually  as  i 
:  ;iy  present  at  the  doing  of  the  same.     In   w 
hereunto  set  my  hand  and  seal  this  twelfth  day  oi 
■jy   of  oilr   T.uril   .^nf;   ihoi.-^and   e'dit  himdred   ?.nd 

ler  his  power  of  attorney,  made  a  promissory  note  to 
'     '  '  '  c  to  secure  the 

lior.    The  "ote 

ibing  will 
s  attorney,  Benjamm  Goodridge."   I'he  bo 
by  an  attorney,  employed  by  Levi  Gc""''' 
and  by  whom  the  words  "Benjamin 
"    '  t^  followed  b  ■ 
..'I  of  writing 

'so  written  by  the  same  attorn e v.  at  the 
who  produced  the  power  o 
that  he  was  aut'-'^r;  -  >,'  tr 
,  senior,  and  he 


duly  r 


M.nij'.:v  J'-i  '  lonzea  as  appear, 

d,"  with  sea' 

'.ants  in    .  '  -enants  of 

■■  anfl  V  ;■  purports 

'aniel  and 

-j\.  -:-        .    .„ . .,  iieretofore 

,  together  with  the  covenants, 

■  ^.w.lv  of  the  principal,  the  execution 

■leed  wc  ent  to  effect  the  intent  of  the 

"There  is  no  pa^ 

'^  act  be  in  the 
reen  signing  1. 
1  to  be  good),  and 
-.  .  ...  ^ -i  id  deUvery  is  done 

in  the  nan;:  tv.     Whether  the 

.irtornc  ■   ■  lii'Mi  all'-;  the  vaHdity  of  the 

.t  t  (!o:  0  also,  Montgomery  v.  Dorion, 

7  th-e  case  of  Wilkes  v.  Back  I 

1  passed  the  title  both 

,:  V  is,  therefore,  entitle""' 

to  recover  '  and  judgment  will  ] 


ANOTHER. 

Massachus! 

,.ind. 

•  ienburg,  on  the  I2th  of  Apr- 

'  Goodridge,  one  of  the  defend 

'  in  the  presence  of  subscribing 

■  :  ^u  +'-,..  f  .■■  ...  ;,,,-,  i«;  a  copy: 

'xx)d ridge,  of 

•:  the  deed  was,  that  the  name  of  the  at- 

'■'"^•'~'!'    '•■   ■•■""■'■-'  ■  ■  ''      There  was, 

cy,  in  thus 

c,  :.    That  be- 

I  execution  oi  the  power  in  equity." 

n  agent  to  bind  his  princi- 
p;'.;,  Ill  which  he  acts.     Deed."? 

:u(.     I  •ogcther;  and  every  deed 

^.rrfhi  f.  ■!  the  parties."    Peters,  J., 

in  ^:ae: 


SEALED   INSTRUMENTS.  I33 

Lunenburg,  in  the  county  of  Worcester  and  commonwealth  of 
Massachusetts,  gentleman,  for  a  good  consideration  me  hereunto 
moving,  have  constituted  and  appointed,  and  do  hereby  constitute  and 
appoint  my  son,  Levi  Goodridge,  of  the  same  Lunenburg,  gentle- 
man, my  true  and  lawful  attorney,  for  me  and  in  my  name  but  for 
my  benefit  and  use,  to  buy  and  sell  real  and  personal  property,  and 
good  and  sufficient  deeds  to  make,  execute  and  deliver,  in  my  name,  in 
transferring  and  conveying  the  same,  also  for  me  and  in  my  name  to 
move  and  institute  all  necessary  suits  in  law  for  the  recovery  and  col- 
lection of  my  demands,  and  to  assert  and  vindicate  my  rights,  and 
to  appear  and  defend  in  all  suits  to  be  instituted  against  me  in  any 
courts  of  law  or  equity ;  especially  do  I  empower  my  said  attorney 
to  carry  on  my  sawmill,  and  buy  and  sell  logs,  timber  and  lumber, 
and  do  all  necessary  things  in  and  about  the  same,  and  in  general  to 
make  such  contracts  for  the  profitable  improvement  and  use  of  such 
property  and  other  means  as  I  possess  for  the  enlargement  of  my 
estate ;  hereby  ratifying  and  confirming  whatsoever  my  said  attorney 
shall  lawfully  do  in  the  premises  as  fully  and  effectually  as  I  could 
were  I  personally  present  at  the  doing  of  the  same.  In  witness 
whereof  I  have  hereunto  set  my  hand  and  seal  this  twelfth  day  of 
April,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
thirty-two." 

On  the  28th  of  April,  1834,  Levi  Goodridge,  professing  to  act 
therein  under  his  power  of  attorney,  made  a  promissory  note  to 
Sewall  Goodridge,  and  executed  a  mortgage  to  secure  the  same, 
both  in  the  name  of  Benjamin  Goodridge,  senior.  The  note  was  in 
the  common  form,  for  $338.52,  payable  to  Sewall  Goodridge  or  order, 
and  signed,  in  the  presence  of  a  subscribing  witness,  "Benjamin  Good- 
ridge, by  his  attorney,  Benjamin  Goodridge."  The  body  of  the  note 
was  written  by  an  attorney,  employed  by  Levi  Goodridge  to  prepare 
the  papers,  and  by  whom  the  words  "Benjamin  Goodridge,  by  his 
attorney,"  were  also  written,  to  be  followed  by  the  signature  of  Levi 
Goodridge ;  but  the  latter,  instead  of  writing  his  own  name,  wrote 
that  of  Benjamin  Goodridge. 

The  mortgage  deed  was  also  written  by  the  same  attorney,  at  the 
request  of  Levi  Goodridge,  who  produced  the  power  of  attorney 
above  mentioned,  and  stated  that  he  was  authorized  to  execute  the 
deed  by  Benjamin  Goodridge,  senior,  and  he  accordingly  signed  the 
name  of  "Benjamin  Goodridge"  to  the  deed  without  adding  his  own 
signature  as  attorney,  or  any  words  to  indicate  that  the  signature  was 
not  made  by  Benjamin  Goodridge  himself ;  nor  did  the  body  of  the 
deed  contain  any  statement  indicating  that  it  was  made  by  Benjamin 
Goodridge  by  his  attorney,  or  in  any  other  manner  than  by  him  per- 
sonally. The  deed  was  acknowledged  by  Levi  Goodridge,  before  a 
justice  of  the  peace,  as  the  attorney  of  Benjamin  Goodridge,  to  be 
the  deed  of  the  latter. 

The  power  of  attorney  and  the  mortgage  were  duly  recorded  in 


134 


EXECUTION    OF   AUTHORITY. 


the  registry  of  deeds,  at  the  same  time,  and  the  mortgage  subse- 
quently foreclosed. 

The  place  of  the  supposed  trespass  was  embraced  in  the  mort- 
gage, and  the  plaintiff  claimed  title  under  the  same  by  mesne  con- 
veyances from  Sewall  Goodridge.  The  defendants  derived  their  title 
by  conveyances  from  Benjamin  Goodridge,  senior;  upon  which 
sundry  questions  were  raised  and  argued,  which  became  immaterial 
by  the  view  taken  by  the  court  of  the  case  for  the  plaintiff. 

The  case  was  submitted  to  the  court  of  common  pleas,  and  by  ap- 
peal to  this  court,  upon  an  agreed  statement,  from  which  the  fore- 
going facts  appeared. 

Fletcher,  J. — The  first  question,  as  to  the  plaintiff's  title  to  the 
land,  is,  whether  the  form  of  executing  the  mortgage  and  note  by  the 
attorney  was  a  legal  execution  of  his  power  as  such ;  whether  sign- 
ing the  name  of  the  principal,  Benjamin  Goodridge,  as  if  it  were  his 
own  personal  act  and  signature  (if  not  appearing  upon  the  instru- 
ments to  be  done  by  Levi  as  attorney),  was  a  good  execution  of  the 
instruments  under  the  power,  so  as  to  make  them  valid  as  the  deed 
and  note  of  Benjamin,  and  thus  effectually  to  convey  the  land  to 
Sewall  Goodridge  by  the  mortgage,  under  which  the  plaintiff's  title 
is  derived. 

When  one  writes  the  name  of  another  to  a  deed,  in  his  presence, 
at  his  request,  and  by  his  direction,  the  act  of  writing  is  regarded  as 
the  party's  personal  act,  as  much  as  if  he  had  held  the  pen,  and 
signed  and  sealed  the  instrument  with  his  own  hand.  Story,  Ag., 
§  51 ;  Ball  v.  Dtmsterville,  4  T.  R.  313 ;  Lovelace's  Case,  W.  Jones, 
268 ;  Hibblewhite  v.  M'Morine,  6  M.  &  W.  200,  214,  215 ;  Gardner  v. 
Gardner,  5  Gush.  483. 

In  the  present  instance,  the  deed  and  note  were  not  executed  by 
Benjamin  personally;  nor  in  his  presence,  but  in  his  absence;  and, 
so  far  as  appears,  without  his  knowledge.  But,  upon  the  face  of  the 
papers,  they  appear  to  have  been  signed  by  him  personally  and  with 
his  own  hand.  In  fact,  they  were  signed  by  Levi ;  but  it  does  not 
appear,  upon  the  face  of  the  papers,  that  in  signing  the  name  of  Ben- 
jamin, Levi  acted  as  his  agent,  or  intended  to  act  under  the  power 
of  attorney  from  Benjamin,  or  meant  to  execute  the  authority  given 
by  that  power. 

The  deed  and  note,  which  thus  appear  to  be  signed  by  Benjamin 
personally,  when,  in  fact,  they  were  signed  by  Levi,  are  not  such 
instruments  as  Levi  was  authorized  to  make.  He  was  authorized 
to  make  instruments  in  the  name  of  Benjamin ;  not  as  made  by  Ben- 
jamin personally ;  but  by  Levi,  in  his  name,  as  his  attorney.  It  should 
appear  upon  the  face  of  the  instruments  that  they  were  executed  by 
the  attorney,  and  in  virtue  of  the  authority  delegated  to  him  for  this 
purpose.  It  is  not  enough  that  an  attorney  in  fact  has  authority,  but 
it  must  appear  by  the  instruments  themselves  which  he  executes  that 
he   intends   to  execute  this   authority.    The   instruments   should  be 


^35 

-icli  attorney ;  and  the  e; 

-,;<juhi    be  distinctly  avowed  upou    .... 

.itever  may  be  the  secret  intent  and  pur- 

:ever  may  be  his  oral  declaration  or  pro- 

not  in  fact  execute  the  instruments  as 

■  d  in  the  exercise' of  his  power  a  nless  it  is 

1  i  >  ^ho  instruments.    The  instri  speak  for 

n   the  attorney  should  intent  to  be  the 

;;i  :.u(  i[:ril,  yet  it  will  not  be  the  deed  o.  -"-^i   ^^n- 

trument  purports  on  its  face  to  be  his 

that  th'  'all  execuie  tae  m^ '^■' 

.mie  of  I; 
ii  learning  and  uimjn  discussion  in  the  h<:>  <^ 

proper  mode  of  executing  authority  by  ;..  mi 

agent  should  execute  his  authority,  so  as  to  bind 
•      'TQt  bind  himself,  has  been  a  subject  largely  con- 
jy  works,  and  much  discussed  in  numerous  ad- 
iic  rule  commonly  laid  down  by  all  the  authorities  is. 
principal,  the  instrument  must  purport,  on  its  face, 
mcnt  of  the  principal,  and  executed  in  his  name;  or, 
:ic  tenor  of  the  instrument  should  clearly  show  thnt 
.d  IS  intended  to  be  bound  thereby  and  that  the  age; 
IS  '\<z''i-'t  in  executing  it. 

-    ^ed  that  it  is  nowhere  laid  down  in  any  work  ot 

abiished  by  any  adjudged  case,  that  the  n       '   

tlip  principal,  a?  hi?  own  personal  act  and 

not  being  in  any  wa  :. 

to  be  warranted  by  .  '' 

e  the  instrument  as  attorney,  but  in  the  na 

a  mode  of  execution  is  proper  and  legal  it  seem 
'    t  it  is  nowhere  stated  or  suggested  in  arr' 
>'xecution  of  insitruments  by  agents  in  this 
dties  and  d? 
;ode,  the  pri      ; 
nnent,  would  have  no  means  of  knuu - 
gned  or  whether  he  was  bound  or  n  . 
-;,  i  nd  other  persons  might  be  great 

■  .'  upon  such  signature  as  th<-  ■ 
,   il,  when  the  event  might 
:t  who  had  mistakeii  '  a 

')?!  v,":is  not  bound.  'C 


48,  153. 


EXECUTION 


K    registry  of  deeds,  ai  thi 
'■     ''"'^closed. 
;  of  the 


■  his  coi 


-i^Lorney  wa. 
•iLf  the  naniL 
'j'.vn  persoiKi: 
ments  to  be 
instruments 
and  note  oi 
'-ewall  Goodri' 
;s  derived. 


K-  party  s  • 

'T^ed  and 
;i;  Ball  v 
S ;  Hibble 

urdner,  5  t 
in  the  pr^ 

••'"I:  in  rp  1*1  L 


J  air 

appcn: 

the  att. 

pur 

it  1-. 

ii-    intends 


ire  this 


.  and  the  mortgage  subsc 

as  embraced  in  the  mort 

■'  '-v  mesne  con- 

'/ed  their  title 

I  igc,    aciju/i  :    upon    which 

:,  which  became  immaterial 

case  for  the  plaintiff. 

t  of  common  pleas,  and  by  ap- 

latement,  from  which  the  fore- 

as  to  the  plaintiff's  title  to  the 

uing  the  mortgage  and  note  by  the 

his  powe^  T-  -^uch ;  whether  sign- 

•ijamin  (  ,  as  if  it  were  his 

if  not  .  ;  upon  the  instru- 

ney),  m  1  execution  of  the 

is  to  ma.-s-  :..■  >n  valid  as  the  deed 

effectually  to  convey  the  land  to 

under  which  the  plaintiff's  title 

^her  to  a  deed,  in  his  presence, 
:  e  act  of  writing  is  regarded  as 
-  if  he  had  held  the  pen,  and 
ih  his  own  hand.  Story,  Ag., 
13;  Lovelace's  Case,  W.  Jones, 
:t  W.  200,  214,  215  ;  Gardner  v. 

nd  note  were  not  executed  by 
nice,  but  in  his  absence;  and, 
Ige.  But,  upon  the  face  of  the 
rd  by  him  personally  and  with 
;ned  by  Levi ;  but  it  does  not 
•t^  in  signing  the  name  of  Ben- 
td  to  act  under  the  power 
10  execi        '        uhority  given 

to  lie  signed  by  Ben j amir 

:  .1   1)\    T  vy'    .-ire  not  sucli 

uthorized 

..  m:i  .  jr-H  or  ,M,i..ie  by  Ben- 

as  his  attorney.   It  should 

were  executed  by 

cd  to  him  for  this 

iact  has  authority,  but 

vhich  he  executes  that 

uistruments  should  be 


SEALED   INSTRUMENTS.  135 

made  by  the  attorney  expressly  as  such  attorney ;  and  the  exercise 
of  his  delegated  authority  should  be  distinctly  avowed  upon  the 
instruments  themselves.  Whatever  may  be  the  secret  intent  and  pur- 
pose of  the  attorney,  or  whatever  may  be  his  oral  declaration  or  pro- 
fession at  the  time,  he  does  not  in  fact  execute  the  instruments  as 
attorney,  and  in  the  exercise  of  his  power  as  attorney,  unless  it  is 
so  expressed  in  the  instruments.  The  instruments  must  speak  for 
themselves.  Though  the  attorney  should  intend  a  deed  to  be  the 
deed  of  his  principal,  yet  it  will  not  be  the  deed  of  the  principal,  un- 
less the  instrument  purports  on  its  face  to  be  his  deed.  The  author- 
ity given  clearly  is,  that  the  attorney  shall  execute  the  deed  as  at- 
torney, but  in  the  name  of  the  principal. 

There  is  much  learning  and  much  discussion  in  the  books  of  the 
law  as  to  the  proper  mode  of  executing  authority  by  agents.  In 
what  form  the  agent  should  execute  his  authority,  so  as  to  bind 
his  principal,  and  not  bind  himself,  has  been  a  subject  largely  con- 
sidered in  elementary  works,  and  much  discussed  in  numerous  ad- 
judged cases.  The  rule  commonly  laid  down  by  all  the  authorities  is, 
that  to  bind  the  principal,  the  instrument  must  purport,  on  its  face, 
to  be  the  instrument  of  the  principal,  and  executed  in  his  name ;  or, 
at  least,  that  the  tenor  of  the  instrument  should  clearly  show  that 
the  principal  is  intended  to  be  bound  thereby  and  that  the  agent  acts 
merely  as  his  agent  in  executing  it. 

But  it  is  contended  that  it  is  nowhere  laid  down  in  any  work  of 
authority,  or  established  by  any  adjudged  case,  that  the  agent  may 
put  the  name  of  the  principal,  as  his  own  personal  act  and  signature ; 
the  execution  of  the  agent,  as  agent,  not  being  in  any  way  disclosed. 
Such  an  execution  does  not  appear  to  be  warranted  by  the  power 
delegated  to  execute  the  instrument  as  attorney,  but  in  the  name  of 
the  principal. 

If  such  a  mode  of  execution  is  proper  and  legal  it  seems  most 
remarkable  that  it  is  nowhere  stated  or  suggested  in  any  work  of 
authority.  The  execution  of  instruments  by  agents  in  this  way  would 
certainly  be  attended  with  great  difficulties  and  dangers.  If  the  agent 
might  execute  instruments  in  this  mode,  the  principal,  if  he  found 
his  name  signed  to  an  instrument,  would  have  no  means  of  know- 
ing by  whom  it  had  been  signed  or  whether  he  was  bound  or  not 
bound  by  such  signature ;  and  other  persons  might  be  greatly  de- 
ceived and  defrauded  by  relying  upon  such  signature  as  the  personal 
act  and  signature  of  the  principal,  when  the  event  might  prove  that 
it  was  put  there  by  an  agent  who  had  mistaken  his  authority,  and 
consequently  that  the  principal  was  not  bound.  When  it  should  be 
discovered  that  the  name  of  the  principal  was  not  written  by  him, 
as  it  purports  to  be,  it  might  be  wholly  impossible  to  prove  the  exe- 
cution by  attorney,  as  there  would  be  nothing  on  the  note  to  indicate 
such  an  execution.  For  authorities  as  to  the  form  of  execution  of 
the  mortgage  and  note,  see  Story  Ag.,  §§  147,  148,  153,  notes,  and 


136  EXECUTION    OF   AUTHORITY. 

cases  cited ;  Hoffman's  opinion,  in  3  Am.  Jur.  71-85  ;  Wilks  v.  Back, 
2  East  142;  Story,  Notes,  §§  11,  66,  71.  In  the  case  of  Stackpole  v. 
Arnold,  11  Mass.  27,  29,  Parker,  C.  J.,  said:  "No  person  in  making 
a  contract  is  considered  to  be  the  agent  of  another  unless  he  stipu- 
lates for  his  principal  by  name,  stating  his  agency  in  the  instrument 
which  he  signs.  This  principle  has  been  long  settled,  and  has  been 
frequently  recognized ;  nor  do  I  know  an  instance  in  the  books  of  an 
attempt  to  charge  a  person  as  the  maker  of  any  written  contract,  ap- 
pearing to  be  signed  by  another,  unless  the  signer  professed  to  act  by 
procuration  or  authority,  and  stated  the  name  of  the  principal  on 
whose  behalf  he  gave  his  signature." 

There  is  a  dictum  of  Lawrence,  J.,  in  the  case  of  Wilks  v.  Back, 
2  East  142-145,  which  would  seem  to  import  that  an  agent  might 
put  his  principal's  name  without  stating  it  to  be  by  attorney.  But  it 
is  but  a  dictum,  the  import  of  which  is  not  entirely  clear  and  certain. 

Though  there  is  no  direct  authority  to  the  point,  the  court  are 
inclined  to  think,  that  the  execution  of  the  mortgage  and  note,  in  the 
present  case,  were  not  such  as  the  attorney  was  authorized  to  make, 
and  not  such  as  to  make  them  valid  and  bindins:.^    *    *    *2 


(b)      NEGOTIABLE  INSTRUMENTS. 

ANDERTON  et  al.  v.  SHOUP,  trustee. 
1866.     Supreme  Court  of  Ohio.     17  Ohio  St.  126. 

Error  to  the  superior  court  of  Montgomery  county. 

Miriam  H.  Anderton  and  James  Anderton,  her  husband,  brought 
their  action  in  the  superior  court  of  Montgomery  county,  against 
George  W.  Shoup,  as  trustee  for  Harriet  Shoup,  on  the  following 
instrument : 

"Dayton,  August  11,  1861. 

"Dayton  branch,  State  Bank  of  Ohio,  pay  to  J.  B.,  or  bearer,  two 
hundred  thirty  dollars. 

"$230.  Samuel  Shoup,  Agent." 

The  various  questions  that  arose  in  the  progress  of  the  case,  re- 
sulted, substantially,  in  one  upon  demurrer  to  the  amended  petition. 
It  is  averred  in  the  petition  that  Samuel  Shoup  and  Harriet,  his 

^  A  portion  of  the  opinion  is  omitted. 

^  "When  the  deed  on  its  face  purports  to  be  the  indenture  of  the  principal, 
made  by  his  attorney  in  fact  therein  designated  by  name,  it  may  be  properly 
executed  by  such  attorney  by  his  subscribing  and  affixing  thereto  the  name 
and  seal  of  his  principal  alone."  Cornell,  J.,  in  Berkey  v.  Judd,  22  Minn.  287, 
302. 


ae  said  Harriet  to  the  defendant  in 
'^rty  in  carry;. 

such 

a  the 

named  m  said  :.  :,  and 


,,^     ...  .....Js  on  such  a'^'^'-'- 

cd  with  his  own  name  . 
of  the  defendant;  that  ov. 
]  "draft  or  check"  and  datec' 

' .  from  whoi 

''before  it  \: 
tundi>  m  sani  bank  when  the  dr. 
;t>  ^r.-ilnr'f  ■,"  :  nrnl  l'h?.^1:la^•lllel^t 


mt;  and  this  petition  in  error  is  ' 


]  averments  in  the  petition  will  not  warrr; 

■  \:>  iiat  this  is  a  case  where  a  party  i'  .ses  a 
na  ^  own  in  the  transaction  of  his  ■  The 
Pi)'  -  aimed  is,  that  the  principal  allowed  the  agent 
to  :  ,.<,me  as  agent  '•'•  ^'^'"^  fr-1n^-l.-^;,  n  .-f  •--oi.i.--'  ,-,"  tn;- 
I'U                        principal. 

'ar  from  the   paper   w   suir   oemg  execiKco   10-  mv:. 

■  •  kino-  oitt  funds  for  the  princinal,   in  the  ordinary' 

'  by  hin, 
July,  bv 
;  here  were  no  funds  ot  the  p; 
..    ..       •'    Mi- 1    ■  V    check  to  the  h. 
)0wn,  ii  merely  for  the  . 

■■y,  to  be  ncL  •  them  f~-  •;■•"■• 

;  can  be  clr,  the  die. 


the  inst\  1!  i  nt  ^w.A  upon  is  a  check  proper,  or  a  bH'  ,,^ 
;i  is  unp  the  purposes  of  this  case  to 

''^'  ^^"      i.asi.   i  >      i.ie  ingrafted  on  the  comr-     ■ 
orrison  v.  Bailev.  ^  Ohio  St.  13).  ai 
■      ^-        wd."   Edv 
Wend 


iy> 


III.  JUX. 


V.  Back, 
cl:pole  V. 
*  making 


pr. 


•cipal  on 


lii.    liVl^iit 

V.  But  it 
1  certain. 
ourt  are 

■te,  in  the 
to  make. 


iiic  folio Vviug 
r,  iS6i. 


case,  re- 
■  petition, 
irriet,  his 


exf' 
302. 


c  principal, 

' '    nroperly 

name 

IK.    287, 


NEGOTIABLE   INSTRUMENTS.  I37 

wife,  conveyed  the  property  of  the  said  Harriet  to  the  defendant  in 
trust,  with  authority  to  use  the  property  in  carrying  on  miUing  and 
other  business  for  her  benefit,  and  to  employ  an  agent  to  assist  in 
such  business ;  that  the  defendant  appointed  Samuel  Shoup  such 
agent,  who,  in  prosecuting  the  business,  opened  an  account  in  the 
name  of  the  defendant,  with  the  bank  named  in  said  instrument,  and 
was  in  the  habit  of  checking  out  funds  on  such  account,  for  the  de- 
fendant, by  checks  signed  with  his  own  name  as  agent,  with  the 
knowledge  and  approval  of  the  defendant ;  that  on  the  29th  day  of 
July,  1861,  he  drew  said  "draft  or  check"  and  dated  it  August  11, 
1 86 1,  and  delivered  it  to  Davis  &  Cuppy,  from  whom  the  plaintiffs 
obtained  it,  for  a  valuable  consideration,  "before  it  was  due ;"  that 
the  defendant  had  no  funds  in  said  bank  when  the  draft  was  drawn, 
nor  did  he  until  after  its  maturity ;  and  that  payment  was  refused  by 
the  bank. 

The  demurrer  to  the  petition  was  sustained,  and  judgment  w^as 
rendered  for  the  defendant ;  and  this  petition  in  error  is  brought  to 
reverse  that  judgment. 

Day,  C.  J. — The  averments  in  the  petition  will  not  warrant  the 
claim  in  argument,  that  this  is  a  case  w^here  a  party  himself  uses  a 
name  other  than  his  own  in  the  transaction  of  his  business.  The 
most  that  can  be  claimed  is,  that  the  principal  allowed  the  agent 
to  sign  his  ow^n  name  as  agent  in  the  transaction  of  some  of  the 
business  of  the  principal. 

Indeed,  so  far  from  the  paper  in  suit  being  executed  for  the 
purpose  of  checking  out  funds  for  the  principal,  in  the  ordinary 
course  of  business  approved  by  him,  it  was,  in  effect,  a  time-draft 
or  bill,  drawn  on  the  29th  of  July,  but  dated,  and  therefore  payable, 
on  the  nth  of  August.  There  were  no  funds  of  the  principal  in  bank 
to  draw  against,  or  to  set  apart  by  check  to  the  holder ;  and,  for 
aught  that  is  shown,  it  was  drawn  merely  for  the  accommodation 
of  Davis  &  Cuppy,  to  be  negotiated  by  them  for  their  own  benefit. 

The  most  that  can  be  claimed  for  the  check  in  the  hands  of  the 
plaintiffs,  as  purchasers  or  holders  thereof  for  a  valuable  considera- 
tion before  due,  is  the  application  of  the  rules  appertaining  to  ne- 
gotiable paper. 

Whether  the  instrument  sued  upon  is  a  check  proper,  or  a  bill  of 
exchange,  it  is  unnecessary  for  the  purposes  of  this  case  to  deter- 
mine. Bank-checks  "have  become  ingrafted  on  the  commercial  law 
of  the  country"  (Morrison  v.  Bailey,  5  Ohio  St.  13),  and  "are  in 
substance  bills  of  exchange,  payable  on  demand."  Edw.  on  Bills  57 ; 
Par.  Mer.  Law  91;  Harker  v.  Anderson,  21  Wend.  373;  Chapman 
v.  White,  2  Seld.  412.  The  differences  that  distinguish  these  two 
classes  of  commercial  paper,  growing  out  of  the  uses  to  which  they 
are  ordinarily  applied,  do  not  affect  the  question  involved. 

It  is  undoubtedly  w-ell  settled  that  where  an  ordinary  simple  con- 
tract is  signed  by  an  agent  in  his  own  name,  w^ith  the  addition  of 


138  EXECUTION    OF   AUTHORITY. 

the  word  "agent"  thereto,  the  principal  may  be  made  liable  thereon, 
whether  his  name  appears  on  the  paper  or  not.  Story  on  Agency, 
§  1 60a,  and  authorities  there  cited.  But,  for  commercial  reasons,  a 
distinction  is  taken,  in  the  authorities,  between  contracts  of  this  class 
and  negotiable  paper.  As  to  bills  of  exchange,  it  is  said  that  the  agent 
"must  either  sign  the  name  of  the  principal  to  the  bill,  or  it  must  ap- 
pear on  the  face  of  the  bill  itself,  in  some  way,  that  it  was  drawn 
for  him,  or  the  principal  will  not  be  bound."  Edw.  on  Bills  80 ; 
Chitty  on  Bills  27. 

The  question  as  to  the  liability  of  the  principal,  on  paper  executed 
by  an  agent  in  his  own  name,  was  well  considered  by  the  supreme 
court  of  Massachusetts,  in  the  cases  of  the  Eastern  Railroad  Com- 
pany V.  Benedict,  5  Gray  561,  and  the  Bank  of  America  v.  Hooper, 
lb.  567. 

In  the  latter  case  it  is  said  that  "there  will  be  found  to  be  a  leading 
distinction  taken  between  cases  of  commercial  paper  in  the  form  of 
bills  of  exchange,  and  negotiable  promissory  notes  and  other  simple 
contracts,  holding  that  no  one  but  a  party  to  such  negotiable  paper 
can  be  sued  for  the  non-payment  thereof."  In  support  of  this  dis- 
tinction the  following  authorities  are  there  cited :  Byles  on  Bills 
(5th  ed.)  26;  Emly  v.  Lye,  15  East  7;  Becham  v.  Drake,  9  M.  &  W. 
92;  Pentz  V.  Stanton,  10  Wend.  276;  Stackpole  v.  Arnold,  11  Mass. 
27 ;  Bedford  Com.  Ins.  Co.  v.  Covell,  8  Met.  442 ;  Taber  v.  Cannon, 
Id.  456. 

The  case  of  De  Witt  v.  Walton,  5  Seld.  571,  decided  by  the  New 
York  Court  of  Appeals,  is  a  strong  case  to  the  same  point.  It  was  a 
suit  brought  on  a  negotiable  promissory  note,  signed  "David  Hub- 
bell  Hoyt,  agent  for  the  Churchman."  Hoyt  was  an  agent  for  a 
newspaper  called  "The  Churchman,"  and  was  authorized  to  contract 
for  the  proprietor  in  that  name,  and  the  suit  was  against  the  pro- 
prietor, Hoyt's  principal.  It  is  said  in  the  opinion  that  "the  good 
sense  of  many  authorities  upon  this  subject  would  seem  to  be  that, 
where  a  party  is  sought  to  be  charged  upon  an  express  contract  it 
must  at  least  appear  upon  the  face  of  the  instrument  that  the  agent 
undertook  to  bind  him  as  principal.  Here  the  promise  is  not  by  the 
defendant  or  'The  Churchman,'  nor  by  Hoyt  for  them  or  either  of 
them,  or  in  their  behalf,  but  for  himself.  The  formula  used  by  him 
in  the  signature  to  the  note  in  controversy  has  been  determined,  in 
this  and  other  states,  to  create  an  obligation  on  the  part  of  the  agent 
personally,  and  not  in  behalf  of  the  principal.  There  is  no  great 
hardship  in  requiring  that  if  a  man  undertake  to  oblige  another,  by 
note,  bill  of  exchange,  or  other  commercial  instrument,  he  should 
manifest  his  purpose  clearly  and  intelligibly,  or  that  his  principal 
will  not  be  bound,  whatever  may  be  the  result  in  reference  to 
himself." 

It  was  further  held  in  this  case  that  the  words  added  to  the  name 
of  the  person  signing  the  paper  were  merely  dcscriptio  pcrsonae. 


NEGOTIABLE   INSTRUMENTS.  1 39 

maintained  in  these  cases,  it  is  said  by  the  author 
-th's  Leading  Cases  (vol.  2,  p.  433),  "would  seem 
,:  both  sides  of  the  Atlantic." 
oles,  applied  to  the  case  before  us,  are  decisive  of  it. 
■1  the  defendant  is  in  no  way  indif  -      "  •mr.w  the  face 
cnt  upon  which  alone  the  action  is  • 
herefore,  that  the  ruling-  of  the  c  •    vvus  cor- 

ihe  judgment  rendered  by  it  must  :d.^ 


F  APT  V  V     U.'TT  Tr-T\TCr.N  &  HUNT. 

.  ivME  Court  of  rippiLVLb  of  Virginia.     9  uratL. 

on  of  debt  in  the  circuit  court  of  Kanawha  county, 
nson   &   Hunt   against   Robert   H.    Early.    The 
(1  in  the  opinion  of  the  court.     There  was  a  verdict 
for  the  plaintiffs;  and  Early  appHe^^   ^'^  ^^^'-^   r-r..irt 
eas,  which  was  awarded. 
Mc  appellant. 
K,  T..  delivered  the  opinion  of  the  court. 

::  by  Wilkinson  &  Hunt  against 
in  the  following  form  : 

Kanawha  County,  October  3,  1850. 

lie  I  promise  to  pay  to  Wilkinson  &  Hunt, 

,  negotiable  and  payable  at  the  office  of  dis- 

sit  of  the  Bank  of  Virginia,  at  Charleston,  Kanawha, 

:,:,!  :Mirt'v>n  .ir.n.-'r-,  ,u,]  h rty  cents,  for  valni^  «■..,-..;,■.-■ 

Robert  H.  ; 
(For  Samuel  H.  r.j.uy.,' 

■ndant  demurrci   .-r-n-r-.n,-   f^  the  declaration   and  also 

■^f.    The  pla;i  n  the  demurrer,  and  joined 

'  '      The  der.    ii^.i    •,  .•-  overruled,  and  verdict  and 

lered  for  the  plaintiffs.    On  the  trial  of  the  issue 

■■■'•   ;n  introduce  the  note  as  evidence,  which. the 

le  Instruments,  §  305. 

10  Ind.  44,  it  was  held  that  a  note  signed 
'  c-  principal  at  law,  but  that  i 
.  when  the  agent  in  signing  s 

,-y. 
r  a  person  adds  to  hii 

•:ii  1    o  r   :i    nrinrifi-,1     .  i-   ■ 


rd  "agent" 

r  his  name 

L,  and  autho 


lor  iiim,   (' 
C"liittv    rTi  • 
Th" 


\UTHORITY. 

be  made  liable  thereon. 

.   not. 

Qf 

'    -m  Agency, 

.  for  CO: 

reasons,  a 

f  this  class 

!  the  agent 

MSt  ap- 

drawn 

•le  bonn 

=  Bills  80; 

Lhe  prin 

•r  executed 

well  coii 

,    iiie  supreme 

-  of  the 

Ivailroad  Com- 

lie  Bank 

1  ica  V.  Hooper, 

will   not  1 
himself." 

It  was  furth> 
of  the  person  sigiiin 


to  be  a  leading 

.:  in  the  form  of 

s  and  other  simple 

h  negotiable  paper 

upport  of  this  dis- 

(1:    Byles  on  Bills 

Drake,  9  M.  &  W. 

i>,>ie  V.  Arnold,  11  Mass. 

4  i2  ;  Taber  v.  Cannon, 

.  ,,,    .  iecided  by  the  Ncv, 
CO  the  same  point.   It  was  a 
note,  signed  '*David  Hub- 
Hoyt  was  an  agent  for  a 
'  was  authorized  to  contract 
V  suit  was  against  the  pro- 
he  opinion  that  "the  good 
Tv  t  would  seem  to  be  that, 
.!  an  express  contract  it 
'■•• '"-^-1^  that  the  agent 
:  is  not  by  the 
r  either  of 
^  cd  by  him 
:mined.  •' 
'  the  age 
>  no  gr( 
..,  ^.  another,  1 
(rument.  he  shou 
''nt  his  princii' 
3    reference   ' 

i     ,    ied  to  the  nan 
descripiio  pcrsonac. 


NEGOTIABLE   INSTRUMENTS.  1 39 

The  principle  maintained  in  these  cases,  it  is  said  by  the  author 
of  the  notes  in  Smith's  Leading  Cases  (vol.  2,  p.  433),  "would  seem 
to  be  well  settled  on  both  sides  of  the  Atlantic." 

These  principles,  applied  to  the  case  before  us,  are  decisive  of  it. 

The  name  of  the  defendant  is  in  no  way  indicated  upon  the  face 
of  the  instrument  upon  which  alone  the  action  is  based. 

It  follows,  therefore,  that  the  ruling  of  the  court  below  was  cor- 
rect, and  that  the  judgment  rendered  by  it  must  be  affirmed.^ 


EARLY  V.  WILKINSON  &  HUNT. 
1852,     Supreme  Court  of  Appeals  of  Virginia.     9  Gratt.  68. 

This  was  an  action  of  debt  in  the  circuit  court  of  Kanawha  county, 
brought  by  Wilkinson  &  Hunt  against  Robert  H.  Early.  The 
facts  are  stated  in  the  opinion  of  the  court.  There  was  a  verdict 
and  judgment  for  the  plaintiffs ;  and  Early  applied  to  this  court 
for  a  supersedeas,  which  was  awarded. 

Fry  for  the  appellant. 

MoNcuRE,  J.,  delivered  the  opinion  of  the  court. 

This  is  an  action  of  debt  brought  by  Wilkinson  &  Hunt  against 
Robert  H.  Early  on  a  negotiable  note  in  the  following  form  : 

$913.50  Kanawha  County,  October  3,  1850. 

Four  months  after  date  I  promise  to  pay  to  Wilkinson  &  Hunt, 
or  order,  without  offset,  negotiable  and  payable  at  the  office  of  dis- 
count and  deposit  of  the  Bank  of  Virginia,  at  Charleston,  Kanawha, 
nine  hundred  and  thirteen  dollars  and  fifty  cents,  for  value  received. 

Robert  H.  Early. 
(For  Samuel  H.  Early.) 

The  defendant  demurred  generally  to  the  declaration  and  also 
pleaded  nil  debet.  The  plaintiff's  joined  in  the  demurrer,  and  joined 
issue  on  the  plea.  The  demurrer  was  overruled,  and  verdict  and 
judgment  were  rendered  for  the  plaintiffs.  On  the  trial  of  the  issue 
the  plaintiffs  offered  to  introduce  the  note  as  evidence,  which  the 

^  See  Daniel  on  Negotiable  Instruments,  §  305. 

In  Kenyon  v.  Williams,  19  Ind.  44,  it  was  held  that  a  note  signed  "A.  B., 
Agt."  would  not  be  binding  upon  the  principal  at  law,  but  that  equity  would 
enforce  the  note  against  the  principal,  when  the  agent  in  signing  the  note  was 
acting  within  the  sphere  of  his  agency. 

"Where  the  instrument  contains,  or  a  person  adds  to  his  signature,  words 
indicating  that  he  signs  for  or  on  behalf  of  a  principal,  or  in  a  representative 
capacity,  he  is  not  liable  on  the  instrument  if  he  was  duly  authorized ;  but  the 
rnere  addition  of  words  describing  him  as  an  agent  or  as  filling  a  representa- 
tive capacity,  without  disclosing  his  principal,  does  not  exempt  him  from  per- 
sonal liability."    Negotiable  Instruments  Law,  §  20. 


140  EXECUTION    OF   AUTHORITY. 

defendant  admitted  to  be  wholly  in  his  handwriting;  but  he  objected 
to  its  introduction,  on  the  ground  that  on  its  face  it  purported  to  be  the 
note  of  Samuel  H.  Early,  and  was  variant  from  the  note  described  in 
the  declaration.  The  court  overruled  the  objection  and  permitted 
the  note  to  be  given  in  evidence ;  to  v/hich  the  defendant  excepted. 
The  question  which  was  first  argued  before  us,  and  first  presents  it- 
self for  our  decision,  arises  upon  the  opinion  of  the  court  overruling 
the  objection  to  the  note  as  evidence;  and  perhaps  also,  upon  the 
judgment  of  the  court  upon  the  demurrer.  That  question  is,  whether 
the  note  upon  its  face  purports  to  be  the  proper  note  of  Robert  H. 
Early,  who  wrote  and  signed  it,  or  of  Samuel  H.  Early,  for  whom 
it  appears,  by  the  words  in  brackets  at  the  foot  of  the  signature,  to 
have  been  given? 

An  agent,  in  executing  a  note  for  his  principal,  supposing  him  to 
have  authority  to  execute  such  note,  may  bind  either  himself  or  his 
principal.  Whether  the  one  or  the  other  be  bound  depends  upon 
the  intention  of  the  parties ;  and  that  intention  must  appear  from  the 
note  itself.  If  the  name  of  the  principal  be  not  referred  to  in  the 
note,  the  agent  who  signs  it  is  alone  bound.  The  difficulty  arises 
only  in  those  cases  (which,  however,  are  numerous)  in  which  the 
name  of  the  principal  is  referred  to  either  in  the  body  of  the  note 
or  at  the  foot  of  it.  "As  the  forms  of  words  in  which  contracts  may 
be  made  and  executed,"  says  Chief  Justice  Shaw,  in  Bradlee  v.  Bos- 
ton Glass  Co.,  16  Pick.  R.  347,  "are  almost  infinitely  various,  the  test 
question  is,  whether  the  person  signing  professes  and  intends  to  bind 
himself,  and  adds  the  name  of  another  to  indicate  the  capacity  or 
trust  in  which  he  acts,  or  the  person  for  whose  account  his  promise 
is  made ;  or  whether  the  words  referring  to  a  principal  are  intended 
to  indicate  that  he  does  a  mere  ministerial  act,  in  giving  effect  and 
authenticity  to  the  act,  promise  and  contract  of  another.  Does  the 
person  signing  apply  the  executing  hand  as  the  instrument  of  an- 
other, or  the  promising  and  engaging  mind  of  a  contracting  party  ?" 
"The  true  and  best  mode  of  an  agent's  signing  or  endorsing  a  prom- 
issory note  for  his  principal,  where  he  means  to  make  the  latter  and 
not  himself  personally  responsible  thereon,"  says  Story  in  his  work 
on  Promissory  Notes,  §  68,  "is  to  sign,  or  endorse,  the  same,  'A  B, 
(the  principal),  by  his  attorney  or  agent,  C  D.'  If  the  signature  be 
'C  D,  for  A  B'  (the  principal),  it  will  be  equally  available,  though 
not  so  formally  correct.  But  in  the  practice  of  common  life,  there 
are  many  deviations  from  this  course,  and  occasionally  they  give 
rise  to  great  embarrassments,  in  endeavoring  to  ascertain  whether, 
in  the  actual  language  used,  the  agent  is  personally  bound,  or  the 
principal  alone  is  bound,  or  both.  Neither  is  it  possible  to  extract 
from  the  authorities  any  consistent  rules  to  guide  us  in  this  matter 
of  interpretation."  See  Story  on  Agency,  §§  274-278 ;  i  American 
Leading  Cases,  2d  edition,  pp.  625-634,  notes. 

In  the  great  number  and  variety  of  cases  on  this  subject  in  the  re- 


1 


NEGOTIABLE   INS 


>->t  one 
,ii..L  which 
;e  perfect  for 
that  V. 
,"  in  br 
idiu  that  p.  ' 
even  th<.)U!' 
^^.rly.    On 
been  addei.; 
had  autho- 
latter  won' 
executiner  i 


tention 
act.  in 

but  '"t- 


must  i 
of  tlie 
bracke 

lr^-;    - 


has  been  found  in  which  the  note  ■ 

ite  of  R' 

ill  I  ■■      •'■■;     ;-:;.;iyU.li:  f     L*!  -  ;^     •■ 

:r-l.f-1>.    Without  the  ;i- 
'y  wouU' 
c  given 
-  liand,  it  may  be  said  that  it  ti^ 
being  enclosed  in  liiM'-ker-^   :i'i:]  T 
.:ti  the  note  as  .^ 
lave  beer  '---••  ' 
v  procu; 


cii  C'LiiiiSlciiii.  c  a'l ' 


...  in 
iarlv. 


■a 
■.  of 
■?'ve 

.-)f 


ifficient  to  turn  v 

if  Robert  H.  Early  not  to  do  ""a  mere  mir 
t  and  yr<iMt;,  ify  to  the  promise  of  anc.... 
.:apacity  m  which  he  acted,  or  the  person 

•lis  promi-o  v.-i's  made."    In  the  construction  of 
of  it  should  be  taken  together,  and  etifect  must, 
;]  to  every  part  of  it.    It  is  not  presumable  that 
I  the  note  was  used  without  some  meaning.    We 
iherefore,  that  something  was  intended  by  the  use 
'^'^'hat  was  thereby  intended?   The  ordinary  use  of 
■ ,  is  to  enclose  a  parenthesis ;  which  is  defined  by 
:  "a.  sentence  so  enclosed  in  another  sentence  as 
a  out  without  injuring  the  sense  of  that  which 
mg  that  definition  to  this  case,  the  ^ 
Iv"  nnv  be  tnken  frorn  this  note  wir 
rstood  and  intended 
,      .;_..,,      ,    -_.,''  in  the  bn.U-    oF  \V..  a\ 

ler  to  Robert  H.  Early,  who  > 

^f  Robert  H.  Early  had  in:  w- 

;.  Early,  as  maker  of  tl^  .  .e 

•  nee  to  ;■  '    be  latter,  whicii  then  would 

rt-int  n'  ild  not  h^vf^  pnclosed  it  in 

■bt  be  lakeu  iruni  the  nc  .t  injuring 

..    He  would  rather  hav..      d  his  own 

e  name  of  the  mere  agent  by  whom  it  was 
._...^e  than  useless  on  ''^^  -^"^osition  th  •'  '^-•^  ^?! 
ed  to  be  bound.  The  v  canno^ 

b  an  intention.   On  lii-:  oiher  1 
itrarv  intention   an  intention  *• 


that  thv 


oromiso! 


p' 


-ndwritii 

e  objected 

'  3  face  it 

J  to  be  the 

:  from  t! 

:<.  scribed  in 

'  "     ''    , 

permitted 

excepted. 

tits  it- 

1 1  uling 

'nd  per; 

upon  the 

■      ^^]r.:f  . 

s,  whether 

Robert  H. 

y,  for  whom 

c  signature,  to 

imposing  him  to 

may  bi. 

himself  or  his 

(*lll(-r    )> 

depends  upon 

ppear  from  the 

>„lutii     ^,;v:     i!"j|,     I 

ciorred  to  in  the 

in  the  g: 


alone  bound.    The  difficulty  arises 
»-,  are  numerous)  in  which  the 
either  in  the  body  of  the  note 
Uis,  of  words  in  which  contracts  may 
'icf  Justice  Shaw,  in  pjradlee  v.  Bos- 
are  almost  infinitely  various,  the  test 
jgning  professes  and  intends  to  bind 
another  to  indicate  the  capacity  or 
crson  for  whose  account  his  promise 
referring  to  a  principal  are  intended 
^t,  in  giving  effect  and 
of  another.    Does  the 
i  the  instrument  of  an- 

■;:,.:::;_  .     1  a  contracting  party?" 

.igent's  signing  or  endorsing  a  prem- 
iere he  means  to  make  the  latter  and 
lie  thereon,"  savs  Storv  in  his  work 
•  >    '  'A  B, 

;  are  be 

,  it  will  be  t  le,  though 

the  practtc  life,  there 

course,  they  give 

1  endeav.  .  .  ,,     w.^aa  whether, 

.     agent  is  personally  bound,  or  the 

"^    ■■'—-■-        possible  to  e   " 

;;  us  in  this  ■ 
4.-278;  I  Anient,;*!; 

i\  this  subject  in  the  re- 


NEGOTIABLE   INSTRUMENTS.  I4I 

ports  not  one  has  been  found  in  which  the  note  was  similar  in  form 
to  that  which  was  executed  in  this  case.  The  note  in  this  case  is  in 
the  perfect  form  of  a  negotiable  promissory  note  of  Robert  H.  Early, 
except  that  under  his  signature  are  the  words  "[for  Samuel  H. 
Early],"  in  brackets.  Without  the  addition  of  these  words  it  is  cer- 
tain that  Robert  H.  Early  would  alone  have  been  bound  on  the  note, 
even  though  he  may  have  given  it  as  the  known  agent  of  Samuel  H. 
Early.  On  the  other  hand,  it  may  be  said  that  if  these  words  had 
been  added,  without  being  enclosed  in  brackets,  and  Robert  H.  Early 
had  authority  to  sign  the  note  as  agent  for  Samuel  H.  Early,  the 
latter  would  alone  have  been  bound  on  the  note,  though  the  mode  of 
executing  the  note  by  procuration  would  not,  in  that  case,  have  been 
strictly  formal.  The  question  then  depends  alone  upon  the  import  of 
the  brackets ;  and  though  it  may  seem  strange  that  we  should  give 
so  much  import  to  a  circumstance  apparently  so  slight,  yet  we  are  of 
opinion  that  it  is  sufficient  to  turn  the  scale,  and  to  indicate  an  in- 
tention on  the  part  of  Robert  H.  Early  not  to  do  "a  mere  ministerial 
act,  in  giving  effect  and  authenticity  to  the  promise  of  another," 
but  "to  indicate  the  capacity  or  trust  in  which  he  acted,  or  the  person 
for  whose  account  his  promise  was  made."  In  the  construction  of 
the  note,  the  whole  of  it  should  be  taken  together,  and  effect  must, 
if  possible,  be  given  to  every  part  of  it.  It  is  not  presumable  that 
any  word  or  sign  in  the  note  was  used  without  some  meaning.  We 
must  presume,  therefore,  that  something  was  intended  by  the  use 
of  the  brackets.  What  was  thereby  intended?  The  ordinary  use  of 
brackets,  in  printing,  is  to  enclose  a  parenthesis ;  which  is  defined  by 
lexicographers  to  be  "a  sentence  so  enclosed  in  another  sentence  as 
that  it  may  be  taken  out  without  injuring  the  sense  of  that  which 
encloses  it."  Applying  that  definition  to  this  case,  the  parenthesis 
"for  Samuel  H.  Early"  may  be  taken  from  this  note  without  injur- 
ing the  sense  of  the  balance,  as  understood  and  intended  by  the  par- 
ties. The  words,  "I  promise  to  pay,"  in  the  body  of  the  note,  will 
then  plainly  refer  to  Robert  H.  Early,  whose  name  is  thereto  sub- 
scribed as  maker.  If  Robert  H.  Early  had  intended  to  bind,  not  him- 
self, but  Samuel  H.  Early,  as  maker  of  the  note,  he  would  have 
given  more  prominence  to  the  name  of  the  latter,  which  then  would 
have  been  the  important  name.  He  would  not  have  enclosed  it  in 
brackets,  so  that  it  might  be  taken  from  the  note  without  injuring 
the  sense  of  the  balance.  He  would  rather  have  enclosed  his  own 
name  in  brackets,  as  the  name  of  the  mere  agent  by  whom  it  was 
signed.  They  were  worse  than  useless  on  the  supposition  that  Samuel 
H.  Early  was  intended  to  be  bound.  They  certainly  cannot  contribute 
in  any  way  to  show  such  an  intention.  On  the  other  hand,  we  think 
they  serve  to  show  a  contrary  intention,  an  intention  to  take  from  the 
words  enclosed  the  efifect  they  might  otherwise  have ;  to  give  greater 
prominence  to  the  name  of  Robert  H.  over  that  of  Samuel  H.  Early, 
and  to  indicate  that  the  former  was  the  promisor,  and  the  latter  the 


142  EXECUTION    OF   AUTHORITY. 

person  for  whose  account  the  promise  was  made,  and  to  whom,  as 
between  themselves,  the  amount  of  the  note  was  to  be  charged.  This 
we  beheve  is  the  only  meaning  of  which  the  brackets  are  susceptible. 
It  is  a  rational  meaning,  and  is  consistent  with  every  other  part  of 
the  note.  We  therefore  believe  it  was  the  meaning  in  which  they 
were  used  by  the  author  of  the  note,  in  whose  handwriting  it  was 
wholly  written,  and  who  would  seem  to  have  been  familiar  with  the 
proper  manner  of  drawing  such  instruments. 

After  the  court  had  permitted  the  note  to  be  given  in  evidence  to 
the  jury,  the  plaintiffs  introduced  a  witness  for  the  purpose  of  prov- 
ing that  about  a  month  before  the  note  to  the  plaintiffs  was  given  a 
similar  note  was  given  to  him,  except  that  the  words  "for  Samuel 
H.  Early"  were  not  enclosed  in  brackets,  which  note  was  exhibited 
on  the  trial ;  that  credit  was  given  by  the  witness  in  that  transaction 
to  Robert  H.,  and  not  to  Samuel  H.  Early ;  and  that  when  the  note 
was  written  and  handed  to  him,  signed  "Robert  H.  Early,  for  Sam- 
uel H.  Early,"  witness  asked  Robert  H.  why  he  had  made  and  signed 
the  note  in  that  form,  to  which  he  replied,  that  in  the  case  of  the 
death  of  either  his  brother  or  himself,  the  note  would  show  on  which 
account  or  for  whose  benefit  it  was  given,  etc.  To  the  introduction 
of  which  parol  testimony,  and  the  note  offered  in  connection  there- 
with, the  defendant  objected,  on  the  ground  that  it  was  irrelevant 
and  inadmissible.  But  the  court  overruled  the  objection  and  per- 
mitted the  evidence  to  go  to  the  jury ;  to  which  the  defendant  also 
excepted.  The  questions  arising  on  this  opinion  of  the  court,  and 
argued  b}^  the  counsel,  were:  ist,  whether  parol  evidence  was  at  all 
admissible  in  the  case ;  and,  if  so,  2nd.  whether  the  evidence  offered 
was  not  irrelevant,  and  on  that  ground  inadmissible. 

First,  as  to  the  admissibility  of  parol  evidence  in  such  a  case. 
There  is  certainly  no  better  settled  general  rule  of  law  than  that 
parol  evidence  is  inadmissible  to  contradict  or  vary  the  terms  of  a 
written  contract.  There  is  another  general  rule,  which  has  been  es- 
tablished and  recognized  by  a  long  series  of  decisions  (but  which 
has  been  said  to  be  not  perfectly  accurate  as  a  definition),  that  parol 
evidence  is  admissible  to  explain  a  latent  but  not  a  patent  ambiguity. 
There  are  cases  which  would  seem  rather  to  fall  vmder  the  head  of 
patent  than  of  latent  ambiguity,  in  which  parol  evidence  has  been 
held  to  be  admissible.  Judge  Story,  in  the  case  of  Peisch  v.  Dickson, 
I  Mason's  R.  9,  after  referring  to  the  rule  in  regard  to  patent  and 
latent  ambiguity,  says :  "The  difficulty  lies  not  in  the  rule  itself,  but 
in  applying  it  to  particular  cases,  where  the  shades  of  distinction  are 
very  nice.  There  seems,  indeed,  to  be  an  intermediate  class  of  cases, 
partaking  of  the  nature  both  of  patent  and  latent  ambiguities ;  and 
that  is,  where  the  words  are  all  sensible,  and  have  a  settled  meaning, 
but  at  the  same  time  consistently  admit  of  two  interpretations,  ac- 
cording to  the  subject-matter  in  the  contemplation  of  the  parties.  In 
such  a  case  I  should  think  that  parol  evidence  might  be  admitted,  to 


II 


.1  on  the 


the  intermediati' 
by  the  same  pr 
m  who  sigfued 


•i,  by  IK 
;.ri  .-  whi\- 

hat  did  the  f 
■■.V  ,!_.-,  employef^  '^  ■ 
which  Lord  Bacc 

be  that  which  r.  ■/ v  vo  \iu:   :o   ^  a;:  / 

)f  purroiindinor  ^  and  collateral  fnr.'>, 

ircaciy  stated,  is  ex: 
•  to  pronounce  an  in 
'le  nas  ;  aid,  in  its  interpretanon,  aii 

by  pare": 

iiici(_>. urate,"   sa}^    •.»  igrdui,   in    u's   ;,n:  _ij- 
-retation  of  wills,  pp.  175-6,  "but  if  the  court 


of  language  in   gxinerai,  its  meaning  dep' 

i:.;i.  rn-rrr    cannot  be  ambiguous.    The 

jparent  on  the  face  of  the  in 

ase."    It  has  been  decided  i. 

arises  on  the  face  of  an  in 


case  on  the  subject,  and  ex- 
-..:-...  ...J.y.   So  d' -^^  ''^- <\ise  of  Laza- 

Ala.  1'  a  the  case  ce  v.  Boston 

^'    ".  :  cited,  j 

■ri-ion.  ;■ 


:'ie.    ihe  cas 


l.Ml    111', 

•le  that  1- 
;tt  on  ■:  iilainly  tht 


o:n,  as 

u   This 

isceptible. 

cr  part  of 

liich  they 

ing  it  was 

r  with  the 


n  tri< 


t^xcept  : 
bracke'L 

n  bv  th 

I    n'   r:.. 

-cri  tl. 
be  rer 


in  evide, 

rpose  of  prov- 

i's  was  g^ven  a 

■   "for  Samuel 

;vas  exhibited 

hat  transaction 

when  the  note 

.irly,  for  Sam- 

:  iiiade  and  signed 

in  the  case  of  the 

uld  show  on  which 

;"o  the  introduction 

;i.e  note  offered  in  connection  there- 

.  fiir.  .-r, rnM,'  t'.ir  \t  was  irrclcvant 

tion  and  per- 

.  ;  ■('  w  defendant  also 

this  op'  'he  court,  and 

/whether  parol  was  at  all 

,  r'nd,  whether  t  ice  offered 

id  inadmissible. 

parol  evidence  in  such  a  case. 

'  general  rule  of  law  than  that 

'•"-lict  or  vary  the  terms  of  a 

al  rule,  which  has  been  es- 

i)Ut  which 

hat  parol 


.  where 
lo  be  an  ml. 
•^^ten''  and 


tnce  has  been 

h  V,  Dickson, 

'latent  and 

itself,  but 

'nction  are 


of  the  part! 


I  )p  :4(in"'ii 


NEGOTIABLE    INSTRUMENTS.  I43 

show  the  circumstances  under  which  the  contract  was  made,  and  the 
subject-matter  to  which  the  parties  referred."  The  case  of  a  note 
signed  by  one  person  for  another  (at  least  where  it  is  doubtful  on  the 
face  of  the  note  which  of  the  two  is  intended  to  be  bound),  would 
seem  to  be  one  of  the  intermediate  class  referred  to  by  Judge  Story, 
or  to  be  governed  by  the  same  principle.  The  doubt  in  that  case  is 
whether  the  person  who  signed  the  note  intended  to  bind  himself 
or  another ;  and  that  doubt  may  be  perfectly  removed  by  proof  of  the 
surrounding  circumstances,  in  regard  to  which  a  court  of  construc- 
tion may  be  placed,  by  parol  evidence,  as  nearly  as  possible  in  the 
situation  of  the  party  whose  written  language  is  to  be  interpreted ; 
the  question  being,  what  did  the  person  thus  circumstanced  mean  by 
the  language  he  has  employed?  i  Greenl.  Ev.,  §  295.  "The  patent 
ambiguity  of  which  Lord  Bacon  speaks,"  says  the  same  author,  "must 
be  understood  to  be  that  which  remains  uncertain  to  the  court  after 
all  the  evidence  of  surrounding  circumstances  and  collateral  facts, 
which  is  admissible  under  the  rules  already  stated,  is  exhausted." 
Id.,  §  300.  And  "no  judge  is  at  liberty  to  pronounce  an  instrument 
ambiguous  until  he  has  brought  to  his  aid,  in  its  interpretation,  all 
the  lights  afforded  by  the  collateral  facts  and  circumstances  which, 
as  we  have  shown,  may  be  proved  by  parol." 

"The  language  may  be  inaccurate,"  says  Wigram,  in  his  admi- 
rable treatise  on  the  interpretation  of  wills,  pp.  175-6,  "but  if  the  court 
can  determine  the  meaning  of  this  inaccurate  language,  without  any 
other  guide  than  a  knowledge  of  the  simple  facts  upon  which,  from 
the  very  nature  of  language  in  general,  its  meaning  depends,  the 
language,  though  inaccurate,  cannot  be  ambiguous.  The  circum- 
stance that  the  inaccuracy  is  apparent  on  the  face  of  the  instrument 
cannot  in  principle  alter  the  case."  It  has  been  decided  in  several 
cases  that  where  an  ambiguity  arises  on  the  face  of  an  instrument, 
whether  the  person  signing  it,  or  the  person  for  whom  it  is  given, 
was  intended  to  be  bound,  parol  evidence  is  admissible  to  remove 
the  ambiguity.  Mechanics'  Bank  of  Alexandria  v.  The  Bank  of 
Columbia,  5  Wheat.  R.  326,  unanimously  decided  by  the  supreme 
court  in  1820,  is  a  leading  American  case  on  the  subject,  and  ex- 
pressly decides  the  question  affirmatively.  So  does  the  case  of  Laza- 
rus V.  Shearer,  2  Ala.  R.  718.  In  the  case  of  Bradlee  v.  Boston 
Glass  Co.,  16  Pick.  R.  347,  before  cited,  parol  evidence  was  intro- 
duced by  the  plaintiff  without  objection,  and  commented  on  by  the 
learned  chief  justice,  in  delivering  the  opinion  of  the  court.  Indeed, 
we  have  seen  no  case  in  which  parol  evidence  for  such  a  purpose 
has  been  held  to  be  inadmissible.  The  case  of  Stackpole  v.  Arnold, 
1 1  Mass.  R.  27,  was  much  relied  on  by  the  counsel  of  the  appellant 
in  this  case,  to  show  that  such  evidence  is  inadmissible.  In  that  case 
the  name  of  the  principal  did  not  appear  on  the  face  of  the  note  ;  and 
it  is  a  familiar  and  well-settled  principle  that  he  cannot  be  bound  in 
such  case.    The  note  on  its  face  was  plainly  the  note  of  the  person 


144  EXECUTION    OF    AUTHORITY. 

whose  name  was  thereto  signed,  and  of  no  other  person  ;  and  to  have 
admitted  parol  evidence  to  show  that  it  was  intended  to  be  the  note 
of  another  would  have  been  directly  contrary  to  the  rule  which 
declares  such  evidence  inadmissible  to  contradict  or  vary  a  written 
contract.  The  great  object  of  the  judge,  in  his  learned  opinion  in 
that  case,  was  to  show  that  this  rule  is  not  confined  to  specialties, 
or  even  contracts  under  the  statute  of  frauds,  but  extends  to  all  writ- 
ten contracts.  Not  one  word  is  said  in  the  whole  opinion  which 
indicates  that  parol  evidence  would  be  inadmissible  where  it  is  doubt- 
ful on  the  face  of  the  instrument  which  of  several  persons  was  in- 
tended to  be  bound ;  but  the  contrary  is  indicated  throughout  the 
whole  opinion.  After  laying  down  the  general  rule  of  exclusion  of 
such  evidence,  on  page  31,  he  adds:  "Provided  the  contract  is  per- 
fect in  itself,  and  is  capable  of  a  clear  and  intelligible  exposition  from 
the  terms  of  which  it  is  composed."  Again,  on  page  32,  he  says, 
that  a  "contract  in  writing,  perfect  in  itself,  and  containing  no  am- 
biguity on  the  face  of  it  incapable  of  explanation,  cannot  be  enlarged 
or  diminished  by  oral  testimony."  And  on  page  33,  in  speaking  of 
the  notes  on  which  the  suit  was  brought,  he  says,  "they  have  no 
ambiguity  upon  the  face  of  them,"  etc. 

Secondly,  as  to  the  irrelevancy  of  the  evidence  in  this  case.  There 
is  perhaps  no  question  of  greater  difficulty  in  the  administration  of 
justice  than  that  which  often  arises  in  regard  to  the  relevancy  of  evi- 
dence to  the  issue.  "It  is  the  duty  of  the  court,"  says  Philips,  "to  con- 
fine the  evidence  to  the  points  in  issue,  that  the  attention  of  juries 
may  not  be  distracted,  nor  the  public  time  needlessly  consumed ;  but 
in  deciding  that  the  evidence  of  any  particular  circumstance  is  not 
receivable  upon  this  ground,  the  court  must  impliedly  determine  that 
no  presumption  to  be  drawn  from  that  circumstance  ought  properly 
to  have  an  efifect  upon  the  minds  of  the  jury."  It  is  obvious,  there- 
fore, that  a  great  deal  must  necessarily  be  left  to  the  discretion  of 
the  court  of  trial,  in  determining  whether  evidence  is  relevant  to  the 
issue  or  not.  The  question  involved  in  the  issue  in  this  case  was,  why 
were  the  words  "for  Samuel  H.  Early"  written  at  the  foot  of  the 
note?  Was  it  for  the  purpose  of  binding  him  as  maker  of  the  note, 
or  merely  for  the  purpose  of  indicating,  as  between  him  and  Robert 
H.  Early,  that  the  note  was  given  by  the  latter  on  the  account  and 
for  the  benefit  of  the  former?  As  tending  to  throw  light  on  this 
question,  the  plaintiffs  proved  that  less  than  a  month  before  the  note 
was  executed  another  note  was  given  by  the  defendant,  similar  in  all 
respects  to  that,  except  as  to  amount  and  payee,  and  in  the  omission 
of  the  brackets ;  and  that  the  reason  given  by  the  defendant  for  add- 
ing the  words  "for  Samuel  H.  Early,"  at  the  foot  of  the  note,  was 
"that  in  the  case  of  the  death  of  either  his  brother  or  himself,  the 
note  would  show  on  what  account  or  for  whose  benefit  it  was  given." 
We  are  not  prepared  to  say  that  this  evidence  did  not  tend  to  throw 
light  on  the  question,  and  was  irrelevant,  supposing  that  there  was 


N  1  '.  .    •  '  '.  I'.LE   INSTRUMENTS. 

■    '^  amhisni'ty  on  the  face  of  the  nc/  render  • 

•iciples  before  statcvi.    VV'  ..ioan  to 

■  cases  cited  from  East  a:  bv  the  c   r 

sel  ot  the  appeiianc  (7  East  108;  5  Day's  Esp.  -,),  nor  to 

rrmtend  that  proof  of  one  contract  may  be  i-   -  rence,  of 

;j7:<ther.     We  mean  only  to  say,  in  the  language  <  ;  (edition 

•,.'  t8  40,  vol.  I,  p.  461),  that  "it  may  frequent'-  '•  -■      "^\ 

■■-\      ,  ■ '■  cases  absolntely  necessary,  to  look  b 
Avh'  ^'bjectof  '        '       into  pi\ 

for  '^3  Jus'  e  as  to 

the  par  motives  or  inte  nd  to  s, 

on  the  SI .  ,  ■  .-ibove  made^  ni .     .  ...    within  t! 

object  of  tb  -  in  such  a  case  is  not  to  set  up  :. 

to  remo\''  iiiuity  apparent  on  the  face  of  the  ■■ 

case  bef  ^'rom  5  Wheat.  326.  other  transact 

.]  about  the  same  time,  and  in  cue  fainc 
erent  bank)   with  that  on  which  the  suii 
!;r    \.r  .  in  evidence  and  held  to  be  admissible. 

into  the  consideration  of  these  two  questions, 
admissibility  of  parol  evidence  and  the  relevancy 
^  .  -..-.  ^  ..  ,.  -.    .  iU  this  case,  not  because  it  was  necessary  to  decide 
them,  but  because  they  were  discussed  by  the  counsel,  and  are  inter- 
est!: "        .  and  we  thought  it  might  not  be  improper  to  ex- 
prt-  'ion  them.  In  this  case  we  have  already  decided  that 
-  face  was  the  note  of  Robert  H.  Early;  and  the 
producing  it,  ought  to  have  rested  their  case.    The 

1  by  them  to  prove  that  the  note  was  wb 
..,.,  unnecessary,  and  therefore  improper.    '^'^'^ 
have  been  compelled,  under  the  instruct' 

1  a  verdict  for  the  plaintiffs.    But  si 

-ound,  be  reversed?     For  what  puri,- 
court  b  '  ■   the  same  -- 

.!  on  the  nout  the  evi<! 

,   have  been  needlessly  consumed  by  the  i 
■"  the  court  below,  but  c-.w-  f\v-'\  f"';!.,-  T 
of  more  time  in  ar 
-•••''    '-'idence  be  in-u.iMi^-'iiv.  m     vivi;  ^ 
was  irrelevant,  the  judgment  ^ 

■^e  are  affirming  the  judg 
lite  a  novel  case,  anil  i 
,    g  my  mind  to  a  satisfac. 
ich  it  presents.    My  first  impressions 
in  favor  of  the  views  ur  <■' ''  ^^^    ■' 
;  but,  on  more  mature 
r  in  a  judgment  affirmin. 
1  Cases. 


rol  evid' 


■led  to  be  the  note 
'de   which 
,'  v\ritten 
on  in 
.  ilties, 
i'UC  extern.-  to  ail  writ- 
,;;.•  \vhni<'  "I  'i.irm  which 
'missibl:  i  is  doubt- 

:i£  several  ^vimiiis  was  in- 
indicated  throughout  the 
f  exclusion  of 
ntract  is  per- 
ition  from 
- ,  he  says, 
,nd  containing  no  am- 
■un,  cannot  be  enlarged 
.^ge  33,  in  speaking  of 


,'idcuce  m  ihis  case.  Tlierc 
ry  in  the  administration  of 
.ird  to  the  relevancy  of  evi- 
>nrt."  says  Philips,  "to  con- 
that  the  attention  of  juries 
"  needlessly  consumed  ;  but 
licular  circumstance  is  not 
"tipliedly  determine  that 
'yistance  ought  properly 
"   It  is  obvious,  thcre- 
ft  to  the  discretion  of 
ience  is  relevant  to  the 
•  'n  this  case  was,  why 
at  the  foot  of  the 
'  er  of  the  note, 
ixn  and  Robert 
'?.  account  and 
!i'zht  on  this 
\;  the  note 
..nilar  in  all 
n  the  omission 
,ic  (i^jcndant  for  add- 
'  foot  of.  the  note,  was 
her  or  himself,  tl 
nefit  it  was  givei: 
'  not  tend  to  thr" 
KT  that  there  w 


NEGOTIABLE    INSTRUMENTS.  I45 

such  ambiguity  on  the  face  of  the  note  as  to  render  parol  evidence 
admissible  on  the  principles  before  stated.  We  do  not  mean  to  deny 
the  correctness  of  the  cases  cited  from  East  and  Peake  by  the  coun- 
sel of  the  appellant  (7  East  108;  5  Day's  Esp.  Peake  Ca.  95),  nor  to 
contend  that  proof  of  one  contract  may  be  proof,  by  inference,  of 
another.  We  mean  only  to  say,  in  the  language  of  Philips  (edition 
of  1849,  vol.  I,  p.  461),  that  "it  may  frequently  be  very  proper,  and 
in  some  cases  absolutely  necessary,  to  look  beyond  the  transaction 
which  is  the  immediate  subject  of  inquiry,  into  previous  transactions, 
for  the  purpose  of  making  a  just  inference  as  to  the  knowledge  of 
the  parties,  their  motives  or  intention"  ;  and  to  say,  that  this  case, 
on  the  supposition  above  made,  may  come  within  that  principle.  The 
object  of  the  evidence  in  such  a  case  is  not  to  set  up  a  contract,  but 
to  remove  an  ambiguity  apparent  on  the  face  of  the  contract.  In  the 
case  before  cited  from  5  Wheat.  326,  other  transactions  were  proved ; 
and  a  check  executed  about  the  same  time,  and  in  the  same  form 
(though  upon  a  different  bank)  with  that  on  which  the  suit  was 
brought,  was  offered  in  evidence  and  held  to  be  admissible. 

But  we  have  gone  into  the  consideration  of  these  two  questions, 
in  regard  to  the  admissibility  of  parol  evidence  and  the  relevancy 
of  the  evidence  in  this  case,  not  because  it  was  necessary  to  decide 
them,  but  because  they  were  discussed  by  the  counsel,  and  are  inter- 
esting questions,  and  we  thought  it  might  not  be  improper  to  ex- 
press our  views  upon  them.  In  this  case  we  have  already  decided  that 
the  note  upon  its  face  was  the  note  of  Robert  H.  Early ;  and  the 
plaintiffs,  after  introducing  it,  ought  to  have  rested  their  case.  The 
parol  evidence  offered  by  them  to  prove  that  the  note  was  what  it 
purported  to  be  was  unnecessary,  and  therefore  improper.  Without 
it  the  jury  would  have  been  compelled,  under  the  instruction  of  the 
court,  to  have  found  a  verdict  for  the  plaintiffs.  But  should  the 
judgment,  on  that  ground,  be  reversed?  For  what  purpose?  To 
be  remanded  to  the  court  below  that  the  same  verdict  and  judg- 
ment may  be  rendered  on  the  note  without  the  evidence  ?  The  public 
time  may  have  been  needlessly  consumed  by  the  introduction  of  the 
evidence  in  the  court  below,  but  can  that  time  be  regained  by  the 
consumption  of  more  time  in  another  trial?  We  therefore  think, 
that  even  if  parol  evidence  be  inadmissible  in  such  a  case,  and  the 
evidence  in  this  case  was  irrelevant,  the  judgment  should  not  be 
reversed. 

For  these  reasons  we  are  affirming  the  judgment. 

Daniel,  J. — ^This  is  quite  a  novel  case,  and  I  have  experienced 
much  difficulty  in  bringing  my  mind  to  a  satisfactory  judgment  on 
the  questions  which  it  presents.  My  first  impressions  were,  I  must 
confess,  strongly  in  favor  of  the  views  urged  by  the  counsel  of  the 
plaintiff  in  error ;  but  on  more  mature  reflection  I  have  felt  con- 
strained to  concur  in  a  judgment  affirming  that  of  the  circuit  court. 
10 — Reinhard  Cases. 


146  EXECUTION    OF   AUTHORITY. 

He  who  is  sought  to  be  charged  with  the  performance  of  a  written 
promise  or  engagement,  made  by  himself  in  person,  and  endeavors 
to  discharge  himself  of  liability  on  the  ground  that  his  relation  to  the 
instrument  is  that  of  a  mere  agent  for  another,  cannot  complain  of 
being  subjected  to  a  harsh  requirement  when  held  bound  to  main- 
tain that  the  instrument  does  unequivocally  disclose  such  relation. 
It  is  true  that  in  the  case  of  Key  v.  Parnham,  6  Harr.  &  John.  418, 
it  is  stated  as  a  rule  (and  I  have  no  doubt  correctly),  that  ''wherever, 
upon  the  face  of  an  agreement  a  party  contracting  plainly  appears 
to  be  acting  as  the  agent  of  another,  the  stipulations  of  the  contract 
are  to  be  considered  as  operating  solely  to  bind  the  principal,  unless 
it  manifestly  appears  by  the  terms  of  the  instrument  that  the  agent 
intended  to  superadd  or  substitute  his  own  responsibility  for  that 
of  his  principal."  Still  the  further  rule  asserted  in  the  notes  to  the 
American  leading  cases,  vol.  I,  p.  626,  as  fairly  to  be  deduced  from 
the  decisions,  is,  I  think,  equally  true,  viz.,  that  "in  determining 
whether  a  party  contracts  personally  or  as  agent,  the  presumption 
is  in  favor  of  the  former ;  that  is,  a  party  will  be  bound  personally, 
unless  his  character  of  agent  be  clearly  disclosed." 

Does  the  note  on  which  this  suit  was  brought  show,  by  plain  and 
unambiguous  words  or  signs,  that  the  plaintiff  in  error  was  acting 
as  the  mere  agent  of  another  in  its  execution  ?  I  think  not.  The  fact 
that  the  note  was  a  negotiable  one,  and  the  consideration  that  any 
recital  about  the  relation  of  the  parties  in  the  body  of  the  instru- 
ment might  therefore  be  regarded  as  informal,  made  it  the  more 
incumbent  on  the  plaintiff  in  error,  if  indeed  he  was  acting  as  the 
agent  of  another,  to  manifest  his  character,  plainly,  in  the  signature. 
I  do  not  think  that  he  has  done  so. 

It  is  conceded  by  the  counsel  for  the  plaintiff  in  error  that,  in  the 
signature  and  affix  thereto,  the  form  most  generally  used  to  designate 
the  execution  of  a  note  by  an  agent  has  been  departed  from ;  yet  he 
has  referred  to  several  cases  decided  by  the  supreme  court  of  Massa- 
chusetts, in  which,  where  the  form  of  disclosing  the  name  of  the 
agents  and  principals  in  the  signature  was  (with  the  exception  here- 
inafter to  be  noticed)  like  that  employed  here,  the  principals  were 
held  bound. 

When  the  usual  mode  of  signing  a  note  by  attorney  is  adopted, 
A  B  by  C  D,  no  room  is  left  for  doubt  or  construction.  The  infer- 
ence is  plain  that  the  person  who  makes  the  note  is  performing  a 
mere  ministerial  act  in  its  execution.  But  where  the  note  is  signed, 
as  it  is  in  the  case  before  us,  "Robert  H.  Early,  for  Samuel  H.  Early," 
or,  as  in  Long  v.  Colburn,  11  Mass.  R.  96,  "Pro.  William  Gill — J.  S. 
Colburn,"  the  intention  of  the  parties  is  by  no  means  so  manifest. 
A  doubt  arises  whether  the  person  executing  the  note  is  acting  as 
a  mere  agent,  or  is  in  fact  giving  his  own  note  for  and  on  account 
of  the  debt  of  another.  In  the  case  just  above  mentioned,  and  in 
other  cases  of  a  like  character  cited  at  the  bar,  counsel  contended  for 


■  on;  and  though  overruled,  a  Iiink  prop- 

ic  court,  still  it  must  be  cone  ■''■    --^  —r 

not,  in  such  cases,  wholly  fi 
'■■  :o  the  note  here,  however  i-Lobcr: 

aniuel  H.  Early."  The  only  '.  of  the 

juld  denote  an  agency,  or  d  (1. 

nywise  connected  with  the  tr  ;.il 

e  included  in  marks  or  sign  rh 

.,.,;  h,  in(jicate  that  the  claus  '■ 

!)tial  in  the  construct i 
'••L  MIC  note  thus  : '■        '  <  the  pa; 
)v  the  defendant  »  to  rea 

i  H.  Early"  were  ;iOt  on  it  at  ail 

m  in  favor  of  a  mere  agency  by  I\ 
'1  of  the  note  was  not  so  clear  as  to  justify  th' 
ihe  note  from  the  jury. 

offered  by  the  defendant  in  error,  after  the  introduc- 
■  as,  I  think,  improperly  received.    The  declaration 

intention  in  respect  to  another  isolated  note,  and 

.  ction  with  the  one  in  suit,  made  by  Robert  H.  Early 

s  execution,  could  not  be  properly  resorted  to  as  fur- 

■lence  of  what  he  intended  by  the  language  and  course 

■-)  in  the  execution  of  t!-!e  note  in  contr-iversv.    ?::oh 

.vholly  irrelevant. 

:eive,  however,  L^.^  ...i..  plaintiff  xn  .  i,  -  .  vmi.  .  ..a%... 
1  by  its  introduction.  Having  rested  his  defense  on 
'1  to  bo  given  to  the  paper,  and  tlie  court  having  per- 
to  the  jury,  their  verdict  against  him.  in  the  ?>b<:^-'nce 
y,  must  have  followed  as  a  r  e- 

ii  of  further  testimony  bv  t'  '•'■ 

the  construction  given  by  the  cou- 
of  no  benefit  to  himself  rn   •  r. ';,-•. 
oduction  of  such  testimc: 

merely  idle,  and,  though  nnpr!)}.  >  i 

•:h  to  found  error, 
ming  the  judgment,  with  costs  to 

"'    ''    ■  ""      '    ■''.,  agent  for  B,"  ha?  li-tp  w  :u  .o  i.rm  r,, 
the  note.     Roney's  Adm'r  v.  Winter,  37 


)ind  him 

nets  ma}'  be  1; 
is,  whether  : ' 
,     Ids  the  name 

.  ed,  are 

.■J  oro- 

■1    ^vhTCh 

"  the  por-^-^n    : 

ment  of  another,  or  thi 


.      "'      i:  ;i  v.riiten 

■  endeavors 

to  the 

^  iain  of 

1  to  main- 

h  relation. 

John.  418, 

,~    uii-i.  wherever, 

'I'on  the  1  ily  appears 

to  be       '  -i  the  contract 

are  tf'<  'incipal,  unless 

i;  '\  the  agent 

uy  for  that 

•  tn  the  notes  to  the 

.)  be  deduced  from 

ti  it   "in  determining 

'  najiy  u:  it,  the  presumption 

is.  a  pa  I  bound  personally, 

show,  by  plain  and 
\n  error  was  acting 

;  ... think  not.   The  fact 

one,  and  the  consideration  that  any 
e  parties  in  the  ?-  '^  -^'"  the  instru- 
■ded  as  informal  '■■  the  more 

1-ror,  if  indeed  he  ^.  i:  aciing  as  the 
's  character,  pkiinly,  in  the  signature. 

'nin^'iff  in  error  that,  in  the 
Iv  used  to  designate 
'  '^^1  Trotn;  yet  he 
-  of  Massa- 
•i-jr,  .J  name  of  the 

lature  \v  exception  here- 

employed  i.  ;.rincipals  were 


a 
of  th 


;ning  a  . 

'Oy  is  adopted, 
•';     The  infer- 

Robert  H. 

'  ■    «       R.  90,    'iTL 

rforming  a 

is  signed, 

H.  Early," 

Gill— J.' S. 

■cs  is  by  nr 

)  manifest. 
.  acting  as 
on  account 

c  just  above 

mentioned,  and 

:  h    t  hf-  ^  ,nr     ,-1 

i-ixr> 

1   rr,nt-^r,.ie,1    , 

NEGOTIABLE    INSTRUMENTS.  I47 

the  latter  construction ;  and  though  overruled,  and  as  I  think  prop- 
erly overruled  by  the  court,  still  it  must  be  conceded  that  the  mean- 
ing of  the  parties  is  not,  in  such  cases,  wholly  free  from  doubt. 

The  signature  to  the  note  here,  however,  is  not  simply  "Robert 
H.  Early,  for  Samuel  H.  Early."  The  only  words  on  the  face  of  the 
paper  which  could  denote  an  agency,  or  disclose  that  Samuel  H. 
Early  was  in  anywise  connected  with  the  transaction  ("for  Samuel 
H.  Early,")  are  included  in  marks  or  signs  of  parenthesis,  which 
are  generally  used  to  indicate  that  the  clause  or  words  thus  marked 
or  included  are  not  essential  in  the  construction  of  the  sentence.  Has 
not  the  maker  of  the  note  thus  given  to  the  payee  the  privilege  (as 
contended  for  by  the  defendant  in  error)  to  read  the  note  as  if  the 
words  "for  Samuel  H.  Early"  were  not  on  it  at  all?  Be  this  as  it 
may,  the  construction  in  favor  of  a  mere  agency  by  Robert  H.  Early 
in  the  execution  of  the  note  was  not  so  clear  as  to  justify  the  court 
in  withholding  the  note  from  the  jury. 

The  evidence  offered  by  the  defendant  in  error,  after  the  introduc- 
tion of  the  note,  was,  I  think,  improperly  received.  The  declaration 
of  his  purpose  and  intention  in  respect  to  another  isolated  note,  and 
having  no  connection  with  the  one  in  suit,  made  by  Robert  H.  Early 
at  the  time  of  its  execution,  could  not  be  properly  resorted  to  as  fur- 
nishing any  evidence  of  what  he  intended  by  the  language  and  course 
adopted  by  him  in  the  execution  of  the  note  in  controversy.  Such 
testimony  was  wholly  irrelevant. 

I  do  not  perceive,  however,  how  the  plaintiff  in  error  could  have 
been  prejudiced  by  its  introduction.  Having  rested  his  defense  on 
the  construction  to  be  given  to  the  paper,  and  the  court  having  per- 
mitted it  to  go  to  the  jury,  their  verdict  against  him,  in  the  absence 
of  any  further  testimony,  must  have  followed  as  a  necessary  conse- 
quence. The  production  of  further  testimony  by  the  defendant  in 
error  in  aid  of  the  construction  given  by  the  court  could,  in  the  state 
of  the  case,  be  of  no  benefit  to  himself  or  injury  to  his  adversary.  I 
regard  the  introduction  of  such  testimony,  therefore,  under  the  cir- 
cumstances, as  merely  idle,  and,  though  improper,  as  furnishing  no 
ground  on  which  to  found  error. 

I  am  for  affirming  the  judgment,  with  costs  to  the  appellee.^ 

^  A  note  signed  "A  for  B"  or  "A,  agent  for  B,"  has  been  held  to  bind  B, 
where  A  was  authorized  to  execute  the  note.  Roney's  Adm'r  v.  Winter,  37 
Ala.  2Tj;  Tiller  v.  Spradley,  39  Ga.  35. 

"As  the  forms  of  words,  in  which  contracts  may  be  made  and  executed,  are 
almost  infinitely  various,  the  test  question  is,  whether  the  person  signing  pro- 
fesses and  intends  to  bind  himself,  and  adds  the  name  of  another,  to  indicate 
the  capacity  or  trust  in  which  he  acts,  or  the  person  for  whose  account  his 
promise  is  made ;  or  whether  the  words  referring  to  a  principal  are  intended 
to  indicate  that  he  does  a  mere  ministerial  act,  in  giving  effect  and  authenticity 
to  the  act,  promise  and  contract  of  another.  Does  the  person  signing  apply 
the  executing  hand  as  the  instrument  of  another,  or  the  promising  and  engag- 
ing mind  of  a  contracting  party?"  Shaw,  C.  J.,  in  Bradlee  v.  Boston  Glass 
Manf.,  16  Pick.  (Mass.)  347,  350. 


148  EXECUTION    OF   AUTHORITY. 

HITCHCOCK  V.  BUCHANAN. 
1881.     Supreme  Court  of  the  United  States.     105  U.  S.  416. 

Submitted  March  27,  1882,  Decided  April  10,  1882. 

In  error  to  the  circuit  court  of  the  United  States  for  the  Southern 
District  of  IlHnois. 

Statement  of  the  case  by  Mr.  Justice  Gray : 

This  was  an  action  of  assumpsit  by  the  plaintiff  as  indorsee  against 
William  C.  Buchanan  and  James  C.  Waugh  as  drawers  of  the  fol- 
lowing bill  of  exchange : 

"Office  of  Belleville  Nail  Mill  Co. : 

$5,477.13  Belleville,  III.,  December  15,  1875. 

Four  months  after  date,  pay  to  the  order  of  John  Stevens,  Jr., 
cashier,  fifty-four  hundred  and  seventy-seven  13-100  dollars,  value 
received,  and  charge  same  to  account  of  Belleville  Nail  Mill  Co. 

William  C.  Buchanan,  President, 
James  C.  Waugh,  Secretary. 
To  J.  H.  Peiper,  Treasurer,  Belleville,  Illinois." 

The  declaration  alleged  that  the  defendants,  on  the  15th  of  De- 
cember, 1875,  "at  the  office  of  Belleville  Nail  Mill  Co.,  Belleville, 
111.,  made  their  certain  bill  of  exchange"  (describing  it),  and,  after  it 
had  been  accepted  by  the  drawee,  delivered  it  to  the  payee  therein 
named,  and  he  indorsed  it  to  the  plaintiff,  and  the  bill  at  maturity 
was  presented  for  payment,  and  payment  refused,  and  the  bill  pro- 
tested for  non-payment,  and  the  defendants,  knowing  that  it  would 
not  be  paid  by  the  acceptor,  had  omitted  to  provide  funds  for  its 
payment.  A  copy  of  the  instrument  above  set  forth,  and  of  the  ac- 
ceptance and  indorsement  thereon,  was  filed  with  the  declaration. 

The  defendants,  after  oyer  craved  and  had,  severally  filed  gen- 
eral demurrers  to  the  declaration,  which  were  sustained  by  the  cir- 
cuit court,  and  judgment  given  for  the  defendants,  on  the  ground 
that  the  instrument  declared  on  was  the  bill  of  exchange  of  the  Belle- 
ville Nail  Mill  Company  and  not  the  bill  of  the  defendants. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court : 

The  bill  of  exchange  declared  on  is  manifestly  the  draft  of  the 
Belleville  Nail  Mill  Company,  and  not  of  the  individuals  by  whose 
hands  it  is  subscribed.  It  purports  to  be  made  at  the  office  of  the 
company,  and  directs  the  drawee  to  charge  the  amount  thereof  to 
the  account  of  the  company,  of  which  the  signers  describe  themselves 
as  president  and  secretary.  An  instrument  bearing  on  its  face  all  the 
signs  of  being  the  contract  of  the  principal  cannot  be  held  to  bind 
the  agents  personally.  Sayre  v.  Nichols,  7  Cal.  535  ;  Carpenter  v. 
Farnsworth,  106  Mass.  561,  and  cases  there  cited. 

The  allegation  in  the  declaration  that  the  defendants  made  "their" 


NEGOTIABLE    INSTRUMENTS,  149 

bill  of  exchange,  is  inconsistent  with  the  terms  of  the  writing  sutxl 
on  and  made  part  of  the  record,  and  is  not  admitted  by  the  demurrer. 
Dillon  V.  Barnard,  21  Wall.  430  [88  U.  S.,  XXIT  673]  ;  Binz  v. 
Tyler,  79  III.  248. 

The  provision  of  the  statute  of  Illinois,  ed.  1877    t^t-^'^  Practice, 

■;6,  prohibiting  defendants  sued  on  wr:  from 

^  their  signatures,  except  under  plea  vv  :,  has 

no  application  where  the  fact  of  signature  is  adraittea  :rrer, 

1)1.1  ill.--  f,n1\    '"s.-^iir"  i-    nnr-  nf  l.ivv  '^ 


SECOND  NATIONAL  BANK  C'  3N,  OHIO,  v    MID- 

LAND STEEL  ;  ^'Y. 


,  C.  J. — This  case  was  transferred  to  this  court  by  the 
orLv  •  appellate  court. 

Ihe  a)>pellant,  an  indorsee,  sued  the  appellee  upon  a  promissory 

n/-...  ..r  ,  ; -.-i.  <',.-.  ff^llowing  is  a  copy: 

"MuNCi..,  .......  April  13,  1896. 

> r     1  ik1  Steel  Compan; 
lire  months  after  dait:  we  pioutise  £0  pay  to  the  order  of  the 
^i     -       Land  Company  $2,000,  value  received,  negotiable  and  pay- 
^.t   defalcation   or   discount,   at   Union   National.  Bank, 
';i.,  with  interest  at  six  per  cent,  per  annum. 

R.  J.  Beatty,  President." 

l.aint  was  in  seven  paragraphs.  The  first  s.V.  \- 

hat  the  appellee  executed  the  note  sued  o  ./ 

the  appellee  executed  the  said  note  through  one  R.  J. 

was  at  the  time  the  president,  general  agent,  and  gen- 

r  of  the  appellee,  and  who,  in  executing  the  note,  acted 

■>  authority,  and  on  its  behalf,  as  such  president,  etc., 

sonally ;  that  the  sole  consideration  of  said  note  was  a 

ben  due  from  and  owing  by  the  appellee,  alone,  to 

1  1  Company,  which  indorsed  said  note  to  the  appel- 

■ird  paragraph  charged  that  the  appellee  executed  said 

Foster,  119  Mass.  189. 

his  name  as  cashier  or  agent  for  a  banking,  railmad  or 
awing  drafts  and  bills,  or  in  accepting  dra^' 
-s.  in  its  ordinary  buisiness,  if  it  appears,  01 
'''i\  of  the  corporation,  and  the  cas!  ' 
J  bind  the  corporation,  he  is  not  r 
.  .-  iu,.>    .  ,^  t  hy  extrinsic  evidence,"    ■--  ^' 

:?  111.  634,  642. 


148 


EXECUTl' 

HITCIT 


.  riTOKITY 


tSR^ 


irPRF.MF.  C 


■■:$  U.  S.  416. 


10 A  ;r;rr  blU 


.....  ...,  1882. 

'.d  States  for  the  Southern 


..laiutiil  as  indorsee  against 
ugh  as  drawers  of  the  fol- 


I'oir, 
cAsliicr, 
receive 


su,  .- 
the  a  I 
Farns 


-ember  15,  1875. 
iie  order  of  John  Stevens,  Jr., 
,  (^.--c^ven   13-100  dollars,  value 
rviUe  Nail  Mill  Co. 
■   \NAN,  President, 
secretary. 
',  .ile,  iil;uo:i.  ' 

lefendants,  on  the  15th  of  De- 
•oville  Nail  Mill  Co.,  Belleville, 
lange"  (describing  it),  and,  after  it 
•    'lelivered  it  to  the  payee  therein 
'aintiff,  and  the  bill  at  maturity 
i>ayment  refused,  and  the  bill  pro- 
defendants,  knowing  that  it  would 
fnitted  to  provide  funds  for  its 
above  set  forth,  and  of  the  ac- 
n,  was  filed  with  the  declaration, 
'aved  and  had,  severally  filed  gen- 
,!,  which  were  sustained  by  the  cir- 
for  the  defendants,  on  the  ground 
,  as  the  bill  of  exchange  of  the  Belle- 

^  the  bill  of  t1-      '"-' Innts. 

1   opinion  of  '' 

1  on  is  ..    ihe  draft  of  tne 

:.nd  not  lividuals  by  whose 

jrts  to  be  made  ar  the  office  of  the 

ce  to  charge  the  amount  thereof  to 

'  hich  the  signers  describe  themselves 

iistrument  bearing  on  its  face  all  the 

file  principal  cannot  be  held  to  bind 

"    '    '..7  Cal.  535;  Carpenter  v 

re  cited. 

he  defendants  made  "ther 


NEGOTIABLE    INSTRUMENTS.  149 

bill  of  exchange,  is  inconsistent  with  the  terms  of  the  writing  sued 
on  and  made  part  of  the  record,  and  is  not  admitted  by  the  demurrer. 
Dillon  V.  Barnard,  21  Wall.  430  [88  U.  S.,  XXII  673]  ;  Binz  v. 
Tyler,  79  111.  248. 

The  provision  of  the  statute  of  Illinois,  ed.  1877,  title  Practice, 
§§  34,  36,  prohibiting  defendants  sued  on  written  instruments  from 
denying  their  signatures,  except  under  plea  verified  by  affidavit,  has 
no  application  where  the  fact  of  signature  is  admitted  by  demurrer, 
and  the  only  issue  is  one  of  law.^ 


SECOND  NATIONAL  BANK  OF  AKRON,  OHIO,  v.  MID- 
LAND STEEL  COMPANY. 

1900.     Supreme  Court  of  Indiana.     155  Ind.  581. 

DowLiNG,  C.  J. — This  case  was  transferred  to  this  court  by  the 
order  of  the  appellate  court. 

The  appellant,  an  indorsee,  sued  the  appellee  upon  a  promissory 
note  of  which  the  following  is  a  copy : 

"MuNciE,  Ind.,  April  13,  1896. 
"Midland  Steel  Company : 

Three  months  after  date  we  promise  to  pay  to  the  order  of  the 
Muncie  Land  Company  $2,000,  value  received,  negotiable  and  pay- 
able, without  defalcation  or  discount,  at  Union  National  Bank, 
Pittsburg,  Pa.,  with  interest  at  six  per  cent,  per  annum. 

R.  J,  Beatty,  President." 

The  complaint  was  in  seven  paragraphs.  The  first  alleged,  in  gen- 
eral terms,  that  the  appellee  executed  the  note  sued  on.  The  second 
averred  that  the  appellee  executed  the  said  note  through  one  R.  J. 
Beatty,  who  was  at  the  time  the  president,  general  agent,  and  gen- 
eral manager  of  the  appellee,  and  who,  in  executing  the  note,  acted 
by  appellee's  authority,  and  on  its  behalf,  as  such  president,  etc., 
and  not  personally ;  that  the  sole  consideration  of  said  note  was  a 
debt  of  $2,000  then  due  from  and  owing  by  the  appellee,  alone,  to 
the  Muncie  Land  Company,  which  indorsed  said  note  to  the  appel- 
lant.  The  third  paragraph  charged  that  the  appellee  executed  said 

*  Compare  Chipman  v.  Foster,  119  Mass.  189. 

"Where  a  party  signs  his  name  as  cashier  or  agent  for  a  banking,  railroad  or 
other  corporation,  in  drawing  drafts  and  bills,  or  in  accepting  drafts  or  other 
evidences  of  indebtedness,  in  its  ordinary  business,  if  it  appears,  or  is  made  to 
appear,  that  it  is  the  obligation  of  the  corporation,  and  the  cashier  or  agent  or 
other  officer  had  authority  to  bind  the  corporation,  he  is  not  personally  liable, 
and  the  facts  may  be  shown  by  extrinsic  evidence."  Scott,  J.,  in  Scanlan  v. 
Keith,  102  111.  634,  642. 


150  EXECUTION    OF   AUTHORITY. 

note  by  the  name  of  R.  J.  Beatty,  president.  The  fourth  paragraph 
stated  that  the  appellee  had  adopted  and  used  as  its  name  in  the  exe- 
cution of  negotiable  promissory  notes,  etc.,  the  name  of  R.  J.  Beatty, 
president,  and  by  that  name  executed  the  note  mentioned  in  the 
complaint.  The  allegation  of  the  Hfth  paragraph  was  that  the  appellee 
executed  the  note  under  the  name  of  R.  J.  Beatty,  president,  and 
that  the  note  so  executed  was  received,  and  accepted  by  the  appellant 
as  the  note  of  the  appellee.  The  sixtJi  paragraph  is  the  same  as  the 
■fifth  with  the  additional  averments,  however,  that  the  note  was  exe- 
cuted for  a  debt  due  and  owing  from  the  appellee  to  the  Muncie 
Land  Company,  and  for  no  other  consideration ;  that  said  note  was 
executed  by  the  appellee  through  one  R.  J.  Beatty,  who  was  at  the 
time  the  president,  general  agent  and  general  manager  of  the  ap- 
pellee, who  acted  by  authority  of  the  appellee,  on  its  behalf,  as  its 
president,  etc.,  and  not  personally ;  and  that  when  the  Muncie  Land 
Company  indorsed  and  delivered  said  note  to  appellant  it  notified 
appellant  that  said  note  was  the  note  of  the  appellee  executed  under 
the  name  of  R.  J.  Beatty,  president,  and  that  appellant  received  it 
as  such  note  of  the  appellee,  and  not  otherwise.  The  seventh  para- 
graph avers  that,  on  the  day  of  the  execution  of  the  note  sued  on, 
and  long  prior  thereto,  the  appellee  had  adopted  and  used  in  the 
execution  of  its  notes,  drafts,  etc.,  the  name  of  R.  J.  Beatty ;  that, 
on  said  day  the  appellee,  by  the  description  of  "R.  J.  Beatty,  presi- 
dent," executed  to  the  Muncie  Land  Company  the  said  note,  whereby 
it,  the  said  appellee,  promised  to  pay  said  land  company,  three 
months  thereafter,  $2,000,  with  interest,  etc.,  and  that  the  Muncie 
Land  Company  received  and  accepted  the  same  as  the  note  of  the 
appellee,  and  of  no  other  person ;  that  said  note  was  given  and  exe- 
cuted for  a  debt  of  $2,000,  owing  from  the  appellee  to  the  Muncie 
Land  Company,  and  for  no  other  consideration :  that  the  said  note 
was  executed  by  the  appellee,  through  one  R.  J.  Beatty,  who  was  the 
president,  general  agent,  and  general  manager  of  the  appellee,  and 
who  acted  by  the  authority  of  the  appellee  and  on  its  behalf  in  exe- 
cuting said  note  as  such  president,  agent,  etc.,  and  not  personally,  or 
in  any  other  capacity ;  that  said  Beatty  intended  to  execute  said 
note  in  such  manner  that  it  would  be  the  note  and  obligation  of  the 
Midland  Steel  Company,  and  of  no  other  person ;  that  said  Muncie 
Land  Company  accepted  said  note  in  the  belief  that  it  was  the  note 
and  obligation  of  the  appellee,  and  not  the  note  of  any  other  person, 
and  that  if  said  note  is  not  the  note  of  the  said  corporation  such  fact 
is  due  to  the  mutual  mistake  of  the  said  R.  J.  Beatty  and  said 
Muncie  Land  Company ;  that  the  appellant  accepted  said  note  at  the 
time  it  was  indorsed  to  said  appellant  as  the  note  and  obligation  of 
the  appellee,  and  not  otherwise,  and  that  said  note  should,  if  found 
defective,  be  reformed  so  as  to  express  the  true  intent  of  the  parties. 
Each  paragraph  avers  the  indorsement  of  the  note  by  the  Muncie 
Land  Company  to  the  appellant.    It  is  also  alleged  that  by  the  law  of 


BLE   INSTRUMENTS. 

'ania,  where  the  said  note  is  payable,  it  is  ne- 


.vrT'in/e  are  negotiable,  aiK'.'' 

'3  properly  made  an  : 

J  I,  u!.'  reformation  of  the  ii^ 

'  •   'io  grace  is 
i:  sued  on, 

r  relief.    Demurrers  to  the 

.'iragraphs 

"  led,  and,  the  appellai) 

plead 

lered  for  nppellee.    ^\ 

a  the 

icd  for  error 

nt  set  out  ill uplainl  •. 

obligation  of  R.  J.  Beati 

er  proper  averments,  m?. 
contract   of   the   appell 

■1 

orm,  at! 

.>-,  neiliii 
:  .  the  con. 

We  promise  to  pay,'"'  etc.,  but  the  i 
rst  person,  cannot  properly  be  used  bj.  .i 
f  the  company  appears  on  the  instrument  : 
written  the  place  and  date  of 
ihe  instrument  is  "R.  J.  Beati 

■ration  Mr.  Beatty  is  presiueiiL,  or  on  who.:'.: 
it  he  signs  the  paper.  The  words  "we  prom 
grammatically  correct,  if  it  js  understood  thar 
omisor. 

!ly  describe  themselves  as  president,  secretary, 
agent,  when  signing  their  personal  c 
o  bind  themselves  as  individunls.    Tf 
is  manner  may  be  shown  by 
the  contract  of  a  corporati 
n  it  may  be  suggested  that  ^ 
left  in  doubt  as  to  the  i'i-  • 
it  may  be  said  that  if  the 

-  1  be  disregarded,  ;.;; 

1  the  contract  of  the  i 

■s,  the  p'  i 

!ebt  of  a/:  r 

r  in  an  action  upon  it  that  mstea-' 
.     -,     jligation  of  a  solvent  r<)r",H-:<;  ,r, 
personal  note  of  an  irrespon 
^  -  -  person.   In  the  usual  coxi 
of  a  title,  or  description 
ch  addir 
name? 
>  ui  their  o  ' 

■  iptions -. 


EXECUTION    OF    AUTHORITY 


noi 


It  The  ;. 


'ie  ot  ti 

!■;  the  aH 


iijip'^iiant  r!.. 


appel]e= 
cuted  t 
Land  ( 


ill.: 
Land  L 


name  of  R.  The  fourth  paragraph 

'■■   n-.i.rlli ,   '  '-;  its  nroTie  in  the  exe- 

.  R.  J.  Beatty, 
•   It.    iiieiiiioned  in  the 
'i  was  that  the  appellee 
'     *^'}'»  president,  and 
..d  by  the  appellant 
paraijraph  is  the  same  as  the 
•vevcr.  that  the  note  was  exe- 
'pellee  to  the  Muncie 
a;  that  said  note  was 
eatty,  who  was  at  the 
t^r  of  the  ap- 
behalf,  as  its 
Muncie  Land 
■nt  it  notified 
ote  oi  1  cecuted  under 

■  ni .  -1"  ...^nt  received  it 

The  seventh  para- 
ii.-  i.-.\L'  the  note  sued  on, 

ilee  ha'.i  and  used  in  the 

.,  the  n;  '    J.  Beatty;  that, 

'esoript:  '.  ].  Beatty,  presi- 

auy  the  said  note,  whereby 
viiil   land  company,  three 
,  and  that  the  Mimcie 
ine  as  the  note  of  the 
;e  was  given  and  exe- 
'lee  to  the  Muncie 
Lhat  the  said  note 
,  ouc  R.  j.  ikatty,  who  was  the 
-    'i  tnanager  of  the  appellee,  and 
V  appellee  and  on  its  behalf  in  exe- 
,^.,i,  agent,  f '>    -lul  not  personally,  or 
said  Beatt\  i  to  execute  said 

-.ould  be  th«'  ''igation  of  the 

;  of  no  other  t  said  Muncie 

note  in  the  beiKi  ti-at  it  was  the  note 
■,  and  not  the  note  of  any  other  person, 
;e  note  of  the  said  corporation  such  fact 
ke  of  the  said  R.   J.   Beatty  and  said 
the  appellant  accepted  said  note  at  the 
1  -,..11  ,tv,  oc  flw>  riote  and  obligation  of 
'  note  should,  if  found 
I  rue  intent  of  the  parties. 
■  A  tlie  note  by  the  Aluncie 
alleged  that  by  the  law  of 


NEGOTIABLE    INSTRUMENTS.  I5I 

the  state  of  Pennsylvania,  where  the  said  note  is  payable,  it  is  ne- 
gotiable as  bills  of  exchange  are  negotiable,  and  that  no  grace  is 
allowed.   A  copy  of  the  note  is  properly  made  an  exhibit. 

Prayer  for  judgment,  the  reformation  of  the  instrument  sued  on, 
and  all  other  proper  relief.  Demurrers  to  the  several  paragraphs 
of  the  complaint  were  sustained,  and,  the  appellant  refusing  to  plead 
further,  judgment  was  rendered  for  appellee.  The  rulings  on  the 
demurrers  are  assigned  for  error. 

Must  the  instrument  set  out  in  the  complaint  be  conclusively  pre- 
sumed the  personal  obligation  of  R.  J.  Beatty,  whose  name  is  sub- 
scribed to  it,  or,  under  proper  averments,  may  it  be  shown  by  parol 
evidence  to  be  the  contract  of  the  appellee,  the  Midland  Steel 
Company  ? 

It  is  irregular  in  form,  and  ambiguous  in  its  terms.  The  name  of 
the  Midland  Steel  Company  is  not  subscribed  to  it,  neither  does  the 
name  of  that  corporation  appear  in  the  body  of  the  contract.  The 
instrument  reads :  "We  promise  to  pay,"  etc.,  but  the  plural  pro- 
noun "we,"  in  the  first  person,  cannot  properly  be  used  by  a  corpo- 
ration. The  name  of  the  company  appears  on  the  instrument  above 
the  line  in  which  are  written  the  place  and  date  of  execution. 

The  signature  of  the  instrument  is  "R.  J.  Beatty,  president."  It  is 
not  stated  of  wdiat  corporation  Mr.  Beatty  is  president,  or  on  whose 
behalf,  or  as  whose  agent  he  signs  the  paper.  The  words  "we  prom- 
ise to  pay"  are  not  grammatically  correct,  if  it  is  understood  that 
Beatty  is  the  sole  promisor. 

Men  do  not  usually  describe  themselves  as  president,  secretary, 
treasurer,  trustee  or  agent,  when  signing  their  personal  contracts  by 
which  they  intend  to  bind  themselves  as  individuals.  If  negotiable 
paper  executed  in  this  manner  may  be  shown  by  proof  of  extrinsic 
circumstances  to  be  the  contract  of  a  corporation,  or  of  any  un- 
named principal,  then  it  may  be  suggested  that  an  indorsee  of  such 
instrument  might  be  left  in  doubt  as  to  the  identity  of  his  debtor. 
On  the  other  hand,  it  may  be  said  that  if  the  description  of  the  per- 
son signing  the  paper  must  be  disregarded,  and  if  the  instrument 
is  to  be  conclusively  presumed  the  contract  of  the  person  whose  name 
is  subscribed  to  it,  then,  in  many  cases,  the  person  so  signing  would 
find  himself  personally  liable  for  the  debt  of  another,  while  the  holder 
of  the  instrument  might  discover  in  an  action  upon  it  that  instead 
of  having,  as  he  supposed,  the  obligation  of  a  solvent  corporation  or 
person,  he  held  only  the  personal  note  of  an  irresponsible  officer  or 
agent  of  such  corporation  or  person.  In  the  usual  course  of  business 
in  this  country,  the  addition  of  a  title,  or  description  of  any  kind  is 
not  customary — indeed,  it  may  be  said  that  such  addition  or  descrip- 
tion is  never  appended — when  men  sign  their  names  to  contracts  by 
which  they  intend  to  bind  themselves  in  their  own  proper  persons, 
and  not  as  the  representatives  of  another.  Again,  it  is  to  be  observed 
that  such  additions  and  descriptions  as  president,  secretary,  treasurer. 


152  EXECUTION    OF   AUTHORITY. 

trustee,  agent,  and  the  like,  plainly  import  a  relation  to  some  other 
person,  as  a  principal,  distinct  from  the  person  subscribing  the  instru- 
ment. Besides,  the  appearance  of  such  description  of  the  party 
signing  the  instrument  is  sufficient,  in  fact,  to  apprise  the  other 
party  that  the  person  so  signing  his  name  and  describing  himself,  is 
not  the  principal  in  the  transaction,  but,  that  another,  disclosed  or 
undisclosed,  is  the  real  party  in  interest;  or,  at  least,  such  addition 
or  description  is  sufficient,  in  fact,  to  put  the  other  party  upon 
inquiry,  both  as  to  the  identity  of  the  real  principal  and  the  authority 
of  the  agent  to  bind  him.  We  do  not  mean  to  assert  here,  however, 
the  sufficiency  in  law  of  every  such  indication  that  the  paper  is  exe- 
cuted in  a  representative  capacity  only. 

The  decisions  in  this  state  upon  the  question  presented  here  cannot 
easily  be  reconciled  or  distinguished.  Among  those  holding  that  ex- 
trinsic evidence  is  not  admissible  to  show  that  a  contract  executed 
by  one  who  adds  to  his  signature  the  words  president,  secretary, 
agent,  trustee,  etc.,  is  not  the  contract  of  the  person  so  signing,  but 
the  obligation  of  another  party,  are  the  following:  Prather  v.  Ross, 
17  Ind.  495;  Kendall  v.  Morton,  21  Ind.  205;  Wiley  v.  Shank,  4 
Blackf .  420 ;  Mears  v.  Graham,  8  Blackf .  144 ;  Hays  v.  Crutcher,  54 
Ind.  260 ;  Williams  v.  Second  Nat.  Bank,  83  Ind.  237 ;  Willson  v. 
Nicholson,  61  Ind.  241 ;  Hayes  v.  Brubaker,  65  Ind.  27 ;  Avery  v. 
Dougherty,  102  Ind.  443;  Hobbs  v.  Cowden,  20  Ind.  310;  Jackson 
School  Tp.  V.  Farlow,  75  Ind.  118,  123. 

A  different  view  seems  to  have  been  taken  in  other  cases.  Means 
V.  Swormstedt,  32  Ind.  87 ;  McHenry  v.  Duffield,  7  Blackf.  41  ;  Pit- 
man V.  Kintner,  5  Blackf.  250,  33  Am.  Dec.  330 ;  Kenyon  v.  Williams, 
19  Ind.  44;  Bingham  v.  Kimball,  17  Ind.  396;  Indiana,  etc.,  R.  Co. 
v.  Davis,  20  Ind.  6 ;  Gaff  v.  Theis,  33  Ind.  307 ;  Vater  v.  Lewis,  36 
Ind.  288;  Pearse  v.  Welborn,  42  Ind.  331  ;  Neptune,  Adm'r,  v.  Pax- 
ton,  Rec,  15  Ind.  App.  284;  Louisville,  etc.,  R.  Co.  v.  Caldwell,  98 
Ind.  245 ;  Second  Baptist  Church  v.  Furber,  109  Ind.  492,  496 ; 
Swarts  V.  Cohen,  11  Ind.  App.  20;  Hunt  v.  Listenberger,  14  Ind. 
App.  320. 

In  reviewing  the  cases  in  this  state,  it  will  be  observed  that  the 
court,  while  adhering  to  the  rule  that  the  words  affixed  to  the  names 
of  the  persons  signing  an  instrument  are  to  be  treated  as  mere 
descriptio  personarum,  deprecates  the  doctrine  as  an  unreasonable 
one,  and  holds,  whenever  possible,  that  when  the  contract  itself 
shows  that  the  words  were  not  merely  descriptive  of  the  person,  they 
will  not  be  so  regarded. 

Many  exceptions  to  the  rule  contended  for  by  the  appellee  in  this 
case  are  generally  recognized. 

It  does  not  apply  to  contracts  executed  by  public  officers  in  the 
discharge  of  official  duties,  i  Am.  &  Eng.  Ency.  Law  (2nd  ed.)  1056, 
and  cases  cited  in  note  2 ;  Macbeath  v.  Haldimand,  i  Durn.  &  East 
172;  Sparta  School  Tp.  v.  Mendell,  138  Ind.  188.     Nor  to  instru- 


>.LyrXABLE   INSTRUMENTS. 

y  bank  officers  on  behalf  of  a  ~>aiik  of  State 

:ad.  90;  Board,  etc.,  v.  BuU  17  Ind.  129; 

:  of  Newbury,  i  Wall.  234,  i  ^34;  Nave  v. 

87  Ind.  204;  Coi  '  .<  Bank  '.  '  ,  21  Pick. 

Am.  Dec.  280:  '.  -  Bank  t  Penio 

■)Ughton  V.  FirSi 
for  the  perform;! 
■  2y.     Deming  v.   Bullitt. 
...^  xnd.  443,  "■   -'-■'   "^    ■•   680.     - 
■;  L.  ed.  1050  rson,  10 

li  y  Mr.  Freeman  in  his  note  upon  Greenbure  v.  Wbitcomb 

Lu'  90  Wis.  225,  6:;^  N.  W.  93,  28  L.  R.  A.  4^ 

•ii  I  •;,  that,  "Upor.  nrincinle,  the  true  question 

case  is,  or  ought  to  be,  whetb^ 

,'-v,-i..  ;•  .-f,  appears  therefrom  that  X.  ..  x  ,. 

.0  i  ation  rather  than  upon  the  agen" 

la-  IS  r.ni  ^i'.  ail  usual  for  a  person,  executing  a  m'j.: 

-r  '.,  to  add  words  descriptive  of  himself,  or  to  refer 

'  other  persons,  whether  natural  or  artificial,  who 
>  n  wath  the  transaction,  and,  when  he  designates  his 
■:.[■■  c  capacity,  to  assume  that  such  designation  was  intended 

'iescription  of  him.self  is  to  assume  something  which  is 
erhaps  never,  in  harmony  with  the  facts.    Of  course,  if 
-■'    -:  himself  as  an  agent  or  officer  without  indicating 
•  !  i  is,  the  instrument  must  necessarily  be  accepted  as 

I  oi  the  agent,  or  treated  as  void  for  want  of  a  f^' 
Tf,  on  the  other  hand,  he,  upon  the  face  of  the 
•  only  that  he  is  an  agent  or  officer,  but  also 
,     -  or  officer,  we  must  be  astute  to  misai>iv 
concede  that  he  has  employed  language  bet 
,-.,  'Ki.^o^^Qj^  Qf  Ills  principal  than  of  himS'L;,       .  ■.■.^-i\:  .- 
;  to  consider  an  instrument  as  it  would  inani- 
e  business  it:  ^ 
)d  by  the  p- 
the  latter  from  liabiiity 
^-ears  to  the  court  that  he  o 
'.  understood,  to  bind  himself,  but  to  act  for  the  cor- 
ii  he  was  the  authorized  agent.    Despatch.  ^'^     "■ 
Co.,  12  N.  H.  215,  37  .Am.  Dec,  203  ;  Magi! 
•4,  16  Am.  Dec.  70;  Smith  v.  Alexa'   ' 
Revnolds,  49  Mo.  312 ;  Pratt  v.  Bear 
'  ,    n  Conn.  627 ;  Wyman  v.  Gr.i; 
,:4.«rlf   32  Ind.  87,  2  Am.  Rep 
29;  Farmers',  etc.,  B 


■■,  ami  1"!; 

:   ii 

■rincipal, 

(lis 

;o  person 

.  iii-,1    'ri 

;n'  Ml     . 

iioth  as  ^ 

•.s.mIv  be  rec 


Wm  oIjIj. 
T7  Ind. 
Blackf.  ., 
fud.  260;  \\ 
\':cholson,  ( 
■  '  ugherty,   : 
--.hool  Tp.  V 
A  differcT 


-  laui  >jj  1.0  ^t'liit;  other 

.ibscribing  the  instru- 

lescriptioii  of   the  party 

■  ct,   to  n.'^r'rTse  the  other 


•;t ;  or,  at  least,  such  addition 

o  put  the  other  party  upon 

.  oal  principal  and  the  authority 

rt  here,  however, 

the  paper  is  exe- 


jiily. 

'be  question 


ij  here  cannot 

iiolding  that  ex- 

ontract  executed 

•.ident,  secretary, 

1  so  signing,  but 

Prather  v.  Eoss. 


237;  Wilison  V. 
.  L  -■  -  ,  ,  nd.  27;  Avery  v. 
V.  Cowden,  20  Ind.  310:  Jackson 

,;.  123.  •    ■ 

been  taken  in  other  cases.    Means 

nienry  v.  Duffield,  7  Blackf.  41 ;  Pit- 

?3  Am.  Dec.  330  :  Kenyon  v.  Williams, 

17  Ind.  396;  Indiana,  etc.,  R.  Co. 

-,  33  Ind.  307;  Vater  v.  Lewis,  36 

ind.  331  ;  Neptune,  Adm'r,  v.  Paxr 

.  ...isville,  etc.,  R.  Co.  v.  Caldwell,  98 

hurch  v.  Furber,   109  Ind.  492,  496; 

■    -    •  ^'^ ■^.  V.  Listenberger    ^'   '^"  ' 


.-tate,  it  '      I'ved  Uut  the 

hat  the  ..  to  the  names 

iment  are   U>  be  treated  as  mere 

,  .    .. :,,:s  the  doc!rire  a-  ;t!i   unreasonable 

r  possible,   that  act  itself 

-  ..  Av  .,-"-•'■   ■''=•■■  -■Ttn.  thev 


dis.:h_w_ 
and  cas 


j  comcnaea  lor  oy  ir,e  aj^pejiee  m 


this 


public  officers  rr 
Law  (2nd  ed.)   . 
land,  I  Dum.  &  East 
tR^      Nor  to  h-!.^tru- 


NEGOTIABLE    INSTRUMENTS.  1 53 

merits  executed  by  bank  officers  on  behalf  of  a  bank.  Bank  of  State 
V.  Wheeler,  21  Ind.  90;  Board,  etc.,  v.  Butterworth,  17  Ind.  129; 
Baldwin  v.  Bank  of  Newbury,  i  Wall.  234,  17  L.  ed.  534;  Nave  v. 
First  Nat.  Bank,  87  Ind.  204;  Commercial  Bank  v.  French,  21  Pick. 
(Mass.)  486,  32  Am.  Dec.  280;  Watervliet  Bank  v.  White,  i  Denio 
(N.  Y.)  608;  Houghton  v.  First  Nat.  Bank,  26  Wis.  663.  Nor  to 
simple  contracts  for  the  performance  of  agreements  other  than  the 
payment  of  money.  Deming  v.  Bullitt,  i  Blackf.  241  ;  Avery  v. 
Dougherty,  102  Ind.  443,  52  Am.  Rep.  680 ;  Whitney  v.  Wyman,  loi 
U.  S.  392,  25  L.  ed.  1050;  Post  V.  Pearson,  108  U.  S.  418,  27  L.  ed. 

774- 

It  is  said  by  Mr.  Freeman  in  his  note  upon  Greenburg  v.  Whitcomb 
Lumber  Co.,  90  Wis.  225,  63  N.  W.  93,  28  L.  R.  A.  439,  48  Am.  St. 
911,  on  p.  919,  that,  "Upon  principle,  the  true  question  for  considera- 
tion in  every  case  is,  or,  at  least,  ought  to  be,  whether,  taking  the 
writing  as  a  whole,  it  sufficiently  appears  therefrom  that  it  is  intended 
to  be  binding  upon  the  corporation  rather  than  upon  the  agent  who 
has  signed  it.  It  is  not  at  all  usual  for  a  person,  executing  a  note 
or  other  contract,  to  add  words  descriptive  of  himself,  or  to  refer 
to  his  relation  to  other  persons,  whether  natural  or  artificial,  who 
have  no  connection  with  the  transaction,  and,  when  he  designates  his 
representative  capacity,  to  assume  that  such  designation  was  intended 
merely  as  a  description  of  himself  is  to  assume  something  which  is 
rarely,  and  perhaps  never,  in  harmony  with  the  facts.  Of  course,  if 
he  only  describes  himself  as  an  agent  or  officer  without  indicating 
who  his  principal  is,  the  instrument  must  necessarily  be  accepted  as 
the  obligation  of  the  agent,  or  treated  as  void  for  want  of  a  desig- 
nated obligor.  If,  on  the  other  hand,  he,  upon  the  face  of  the  writ- 
ing, discloses  not  only  that  he  is  an  agent  or  officer,  but  also  of  whom 
he  is  such  agent  or  officer,  we  must  be  astute  to  misapprehend,  or 
else  we  must  concede  that  he  has  employed  language  better  calculated 
to  evidence  the  obligation  of  his  principal  than  of  himself.  There  is 
a  growing  inclination  to  consider  an  instrument  as  it  would  mani- 
festly be  understood  by  the  average  business  man,  or,  in  other  words, 
as  it  was  most  probably  understood  by  the  party  receiving  and  the 
party  signing  it,  and  to  exonerate  the  latter  from  liability  when,  ac- 
cording to  such  construction  it  appears  to  the  court  that  he  did  not  in- 
tend, and  was  not  understood,  to  bind  himself,  but  to  act  for  the  cor- 
poration of  which  he  was  the  authorized  agent.  Despatch,  etc.,  Co. 
v.  Bellamy,  etc.,  Co.,  12  N.  H.  215,  37  Am.  Dec.  203 ;  Magill  v.  Hins- 
dale, 6  Conn.  464,  16  Am.  Dec.  70;  Smith  v.  Alexander,  31  Mo. 
193 ;  McClellan  v.  Reynolds,  49  Mo.  312 ;  Pratt  v.  Beaupre,  13  Minn. 
187;  Johnson  v.  Smith,  21  Conn.  627;  Wyman  v.  Gray,  7  Harr.  )& 
J.  409 ;  Means  v.  Swormstedt.  32  Ind.  87,  2  Am.  Rep.  330 ;  Vater 
v.  Lewis,  36  Ind.  288,  10  Am.  Rep.  29;  Farmers',  etc..  Bank  v.  Colby, 
64  Cal.  352,  28  Pac.  118."     See  also  the  very  clear  and  full  state- 


154  EXECUTION    OF   AUTHORITY. 

merit  of  the  modern  doctrine  on  this  subject  in  4  Thomp.  on  Corp., 
§  5 141  ct  seq. 

In  Carpenter  v.  Farnsworth,  106  Mass.  561,  8  Am.  Rep.  360,  a 
check  had  "Aetna  Mills"  printed  on  the  margin,  was  signed  "T.  D. 
F.,  Treas.,"  and  was  given  for  the  debt  of  the  mills.  It  was  held  not 
to  bind  F.  personally.  Gray,  J.,  "The  court  has  always  laid  hold  of 
any  indication  on  the  face  of  the  paper,  however  informally  ex- 
pressed, to  enable  it  to  carry  out  the  intention  of  the  parties." 

In  Roberts  v.  Austin,  5  Wharton  (Pa.)  313,  the  action  was  brought 
by  the  payee  against  the  drawer  of  a  bill  of  exchange,  signed  by  the 
latter  in  his  own  name  merely.  Parol  evidence  was  admitted  to  show 
that  the  drawer  was  agent  of  the  drawee,  and  had  given  the  bill  in 
the  business  of  the  latter,  and  that  the  payee  knew  the  facts  when 
he  received  the  bill. 

In  Moore  v.  McClure,  8  Hun  557,  parol  evidence  was  held  ad- 
missible to  charge  the  principal  on  a  note  sig-ned  "A.  B.,  Agent." 
The  court  said :  "The  fact  that  the  name  of  the  principal  does  not 
appear  on  the  face  of  the  note  is  not,  under  the  modern  decisions  in 
this  state,  at  all  conclusive.  If  it  was  intended  to  be  given  in  the 
business  of  the  principal,  was  in  fact  so  given,  and  with  due  author- 
ity, it  is  binding  on  the  principal,  and  all  this  is  matter  of  evidence." 

In  Hicks  v.  Hinde,  9  Barb.  528,  a  draft  in  favor  of  the  plaintiff 
was  signed  "John  Hinde,  Agent,"  and  extrinsic  evidence  was  ad- 
mitted to  discharge  Hinde  from  liability. 

In  Scanlan  v.  Keith,  102  111.  634,  40  Am.  Rep.  624,  the  court  says : 
"Where  a  party  signs  his  name  as  cashier  or  agent  for  a  banking, 
railroad  or  other  corporation,  in  drawing  drafts  or  bills,  or  in  accept- 
ing drafts  or  other  evidences  of  indebtedness,  in  its  ordinary  busi- 
ness, if  it  appears,  or  is  made  to  appear,  it  is  the  obligation  of  the 
corporation,  and  the  cashier  or  agent  or  other  officer  had  authority 
to  bind  the  corporation,  he  is  not  personally  liable,  and  the  facts  may 
be  shown  by  extrinsic  evidence."  See,  also.  Hypes  v.  Griffin,  89  111. 
134,  31  Am.  Rep.  71  ;  Merchants'  Bank  v.  Central  Bank,  i  Ga.  418, 
44  Am.  Dec.  665. 

In  Baldwin  v.  Bank  of  Newbury,  i  Wall.  234,  17  L.  ed.  534,  the 
court,  by  Clifford,  J.,  quote  with  approbation  the  opinion  of  John- 
son, J.,  in  Mechanics'  Bank  v.  Bank  of  Columbia,  5  Wheat.  326,  5 
L.  ed.  100,  in  which  it  was  said :  "It  is  by  no  means  true,  as  was  con- 
tended in  argument,  that  the  acts  of  agents  derive  their  validity  from 
professing,  on  the  face  of  them,  to  have  been  done  in  the  exercise  of 
their  agency."  Rules  of  form,  in  certain  cases,  have  been  prescribed 
by  law,  and  where  that  is  so,  those  rules  must  in  general  be  fol- 
lowed, but  in  the  diversified  duties  of  a  general  agent,  the  liability  of 
the  principal  depends  upon  the  fact  that  the  act  was  done  in  the  exer- 
cise and  within  the  limits  of  the  powers  delegated,  and  those  powers 
are  necessarily  inquirable  into  by  the  court  and  jury.  Maker  of 
the  note  in  that  case  had  signed  his  name  without  anv  addition  to 


RUMENTS. 

Ucate  his  agrem v,  whk  n  the  one 

under  <        "  Sarat  rule  as  .ippnca  i  ';  con- 

tracts 1;  lime  been  fiilly  ;»do|ned  b,  rsples 

of  the  1  be  found  in  e  New  ■ 

gation  '  rchants'Bai  r.  12  T.. 

more  recent  case  of  Ford  v.  Williar 
where  th<'   •  i-'ion  was  given  b^-  "^i"'- 
it  is  sai'  contract  of  r 

and  he  t  be  sued  tli 

proof  V  .  Imitted  to  t 

and  it  :  .Id  that  the  ;>  of  suci; 

diet  the  nt,  but  only  ihe  tran. -. 

"Wli  iTincipal's  name  appears  printed  in  . 

head  o:  note  executed  by  aw  agent,  the  forme.  ,,. 

desigiir,  L  a  prudent  man  up^n  enquiry,  and  to  tal  ■ 

out  of  ■  ;  regard  to  an  undisclosed  principal."  i 

Encv.  ]  '[  ed.)  1047,  and  cases  cited  in  notes. 

■  fore  us,  the  "  "ly  is  named  in  li.t 

'•  on.    There  .  ■  that  the  name  of 

IS  outside  of  the  nore,  or  that  it  was  not  written  in  and 

1:  ■  - form  a  part  of  it.   The  complaint  avers  that  the  note  was 

given  hy  the  Midland  Steel  Company,  and,  in  some  of  its  paragraphs 
tl\  *^  ■•  ■  :^iven  for  a  debt  owing  by  the  Midland  Steel  Company  to 
i  '.  ^  Land  Company,  and  for  no  other  consideration  ;  that  it 

I  to  be  the  note^f  the  appellee,  and  was  so  rec  <  i 

^'  'cllant  took  it  from  the  payee  with  that  und^ 

Unut-i  i.i^v->c'  circumstances  we  think  it  may  properly  b^ 
note  of  ■•  -■  ""f-dland  Steel  Comn;:ri,  .;id  not  as  the 
the  pe,  signed  his  na'  as  the  pre 

corpc.r.T..  .,  .,i  view  of  the  fact  li.u  m  mdorsee  is 
the  MiJl'ind  Steel  Company  as  the  maker,  and,  .1 
i"  ''•-  took  the  note  with  notice  that  Beatty,  ,v; 

)  it  as  president,  wa«:  not  honnd.  we  think  ..: 

■  ■■■  note  was  n;  of  excii 

■  ■   '  iee  is  correc-  1  ii-i,,!  •' 

le  as  a  bill  of  exchange,  then 

'■'"  money  and,  according  to  u.v  a.^  .^  ,  ii;>   as 

•ity  of  parol  evidence  to  explain  i-  .aracter  ii; 

ic>>  •  l:  ,,,./:i;.     It  is  also  a  fact  of  some  importance  jn  ii:e  case  that 
the  nariy  ittempting  to  escape  liability  is  the  one  who  i<5  ?.llo;r'=>d  to  be 
^  received  the-  full  c 
id  not  the  officer  or  : 
lepresentati . 
-  -  transaction. 

!  he  form  <■•,•  tlie  instrument  sued  . 
art  to  p^-  ""lusively,  that   .1 

-'-itty.     F.  !ce  is  admissible 


I^J. 


EXECUTE 


iip.  on  Corp.. 

!'•  360,  a 

.    n,  v.as  s-ned  "T.  D. 

mills.    It  was  held  not 

IS  always  laid  hold  of 

wever  informally   ex- 

I'lion  of  the  parties." 

^   Hie  action  was  brought 

(hans^e,  signed  by  the 

\rin\r:..      ■     -  '  "litted  to  show 

\vco,  an  en  the  bill  in 


thi- 


-  held  ad- 

_  ..  Agent." 

ipal  does  not 

y.^rn  decisions  in 

■J  be  given  in  the 

aid  with  due  author- 

. '  matter  of  evidence." 

o,  a  draft  in  favor  of  the  plaintiff 

.'  and  extrinsic   evidence  vaf  n'l- 

liability. 


nt 

for  a  ban: 

,r 

bil 

s,  or  in  acccjjt- 

in 

its 

ordinary  busi- 

'■  >n  of  the 

:  authority 

•he  facts  may 

.. 

Griffin,  89  111. 

,:k  V. 

Central  Bank,  i  Ga.  418, 

•  Wall.  : 

ed.  53-^ 

■.ote  Vriih  .4'prob; 

of  John 

uik  V.  Bank  of  1. 

It.  3^6,  5 

r  was  said  :  "It  is  by  . 

was  con- 

i.,!(  t'lp  r:c('<  of  agent - 

lity  from 

<>  have  b 

ercise  0 

u  jjrescribe' 

ncral  be  fo' 

he  liability  0 

•  in  the  exer 

the  not'. 


t  anv  addition  i- 


NEGOTIABLE    INSTRUMENTS.  1 55 

indicate  his  agency,  which  makes  the  case  a  stronger  one  than  the  one 
under  consideration.  Same  rule  as  appHed  to  ordinary  simple  con- 
tracts has  since  that  time  been  fully  adopted  by  this  court.  Examples 
of  the  kind  are  to  be  found  in  the  case  of  the  New  Jersey  Steam  Navi- 
gation Co.  V.  Merchants'  Bank,  6  How.  381,  12  L.  ed.  465,  and  in  the 
more  recent  case  of  Ford  v.  Williams,  21  How.  289,  16  L.  ed.  36, 
where  the  opinion  was  given  by  Mr.  Justice  Grier.  In  the  latter  case 
it  is  said  that  the  contract  of  the  agent  is  the  contract  of  the  principal, 
and  he  may  sue  or  be  sued  thereon,  though  not  named  therein.  Parol 
proof  may  be  admitted  to  show  the  real  nature  of  the  transaction, 
and  it  is  there  held  that  the  admission  of  such  proof  does  not  contra- 
dict the  instrument,  but  only  explains  the  transaction." 

"Where  the  principal's  name  appears  printed  in  the  margin  or 
head  of  a  bill  or  note  executed  by  an  agent,  the  former  is  sufficiently 
designated  to  put  a  prudent  man  upon  enquiry,  and  to  take  the  case 
out  of  the  rule  in  regard  to  an  undisclosed  principal."  i  Am.  &  Eng. 
Ency.  Law  (2nd  ed.)  1047,  and  cases  cited  in  notes. 

In  the  case  before  us,  the  Midland  Steel  Company  is  named  in  the 
instrument  sued  on.  There  is  nothing  to  indicate  that  the  name  of 
the  company  is  outside  of  the  note,  or  that  it  was  not  written  in  and 
intended  to  form  a  part  of  it.  The  complaint  avers  that  the  note  was 
given  by  the  Midland  Steel  Company,  and,  in  some  of  its  paragraphs 
that  it  was  given  for  a  debt  owing  by  the  Alidland  Steel  Company  to 
the  Midland  Land  Company,  and  for  no  other  consideration ;  that  it 
was  intended  to  be  the  note  of  the  appellee,  and  was  so  received,  and 
that  the  appellant  took  it  from  the  payee  with  that  understanding. 
Under  these  circumstances  Vv^e  think  it  may  properly  be  treated  as  the 
note  of  the  Midland  Steel  Company,  and  not  as  the  obligation  of 
the  person  who  signed  his  name  to  it,  as  the  president  of  that 
corporation.  In  view  of  the  fact  that  an  endorsee  is  seeking  to  charge 
the  Midland  Steel  Company  as  the  maker,  and,  as  the  endorsee  al- 
leges, that  it  took  the  note  with  notice  that  Beatty,  whose  name  was 
subscribed  to  it  as  president,  was  not  bound,  we  think  it  unimportant 
whether  the  note  was  negotiable  as  a  bill  of  exchange  or  otherwise. 
If  the  appellee  is  correct  in  its  contention  that  the  instrument  was 
not  negotiable  as  a  bill  of  exchange,  then  it  was  a  simple  contract  for 
the  payment  of  money  and,  according  to  the  authorities,  the  rule  as 
to  the  admissibility  of  parol  evidence  to  explain  its  true  character  is 
less  stringent.  It  is  also  a  fact  of  some  importance  in  the  case  that 
the  party  attempting  to  escape  liability  is  the  one  who  is  alleged  to  be 
the  real  debtor,  and  who  received  the  full  consideration  for  which 
the  note  was  executed,  and  not  the  officer  or  agent  who  undertook  to 
execute  it  in  his  representative  capacity  and  who  derived  no  personal 
benefit  from  the  transaction. 

The  form  of  the  instrument  sued  on  is  not  such  as  to  require  the 
court  to  presume,  conclusively,  that  it  is  the  obligation  of  R.  J. 
Beatty.     Extrinsic  evidence  is  admissible  to  explain  the  instrument, 


156  EXECUTION    OF   AUTHORITY. 

and  to  show  that  it  was  intended  and  understood  by  the  parties  to  be 
the  note  of  the  Midland  Steel  Company. 

The  averments  of  each  paragraph  of  the  complaint  were  sufficient 
to  authorize  such  proof,  and  to  fix  the  liability  intended  to  be  created 
by  the  instrument  where  it  properly  and  justly  belongs.  The  pre- 
vious decisions  of  this  court  inconsistent  with  the  views  expressed  in 
this  opinion  are  overruled. 

The  judgment  is  reversed,  with  instructions  to  the  court  to  overrule 
the  demurrers  to  the  several  paragraphs  of  the  complaint,  and  for 
further  proceedings  in  accordance  with  this  opinion.^ 

^  Where  the  agent's  name  alone  is  signed  to  a  negotiable  instrument,  and 
nothing  appears  in  the  body  of  the  instrument  to  indicate  that  any  other  per- 
son is  to  be  bound,  it  is  generally  held  that  parol  evidence  is  inadmissible  to 
show  that  the  note  was  made  by  the  agent  for  a  principal.  Bartlett  v.  Hawley, 
120  Mass.  92;  Wing  v.  Click,  56  Iowa  473;  Hayes  v.  Matthews,  63  Ind.  412; 
Williams  v.  Bank  of  Lafayette,  83  Ind.  237.  In  Sturdivant  v.  Hull,  59  Me. 
172,  a  note  signed  "John  T.  Hull,  Treas.  St.  Paul's  Parish,"  was  held  to  be  the 
personal  obligation  of  Hull.  The  court  decided  that  evidence  to  show  that 
Hull  made  the  note  on  behalf  of  and  for  the  sole  benefit  of  the  parish  had 
been  properly  excluded.  On  page  174,  Barrows,  J.,  said:  "When  a  man  has 
deliberately  said  in  writing,  'I  promise  to  pay,'  and  a  valid  consideration  for 
the  promise  is  shown,  right  and  justice  are  not  very  likely  to  be  gainers  by 
allowing  him  to  retract  and  to  undertake  to  prove  that  he  did  not  actually 
mean  'I  promise,'  but  that  he  meant  and  the  other  party  understood  that  he 
meant,  that  some  third  party,  whose  promise  the  writing  does  not  purport  to 
be,  undertook  the  payment."  Compare  with  this  case,  Shoe,  etc.,  Bank  v.  Dix, 
123  Mass.  148.  There  is  stronger  reason  for  excluding  parol  evidence  when 
the  action  on  the  note  is  brought  by  a  holder  in  due  course.  See  Casco  Nat. 
Bank  v.  Clark,  139  N.  Y.  307. 

Where  the  instrument  is  ambiguous,  the  tendency  of  the  more  modern  deci- 
sions is  to  allow  the  admission  of  parol  evidence  to  show  the  intent  of  the 
parties.  See  collection  of  cases,  Reinhard  on  Agency,  §  216.  In  Hardy  v. 
Pilcher,  57  Miss.  18,  Chalmers,  J.,  said:  "Ordinarily  no  extrinsic  testimony 
of  any  kind  is  admissible  to  vary  or  explain  negotiable  instruments.  Such 
paper  speaks  its  own  language,  and  the  meaning  which  the  law  affi.xes  to  it 
cannot  be  changed  by  any  evidence  aliunde.  One  of  the  few  exceptions  to  the 
rule  is,  where  anything  on  the  face  of  the  paper  suggests  a  doubt  as  to  the 
party  bound,  or  the  character  in  which  any  of  the  signers  has  acted  in  affixing 
his  name,  in  which  case  testimony  may  be  admitted  between  the  original  par- 
ties to  show  the  true  intent."  See  also  Laflin,  etc.,  Co.  v.  Sinsheimer,  48  Md. 
411,  in  which  Robinson,  J.,  said:  "Parol  evidence  in  such  cases  does  not  con- 
tradict, alter,  or  add  to  the  written  instrument,  but  explains  the  intention  of 
the  parties,  which  could  not  be  ascertained  with  any  degree  of  certainty  from 
the  face  of  the  instrument  itself." 

See  collection  of  cases  and  statement  of  rule  in  Mechem  on  Agency,  §§  441- 
443- 


SIMPLE    CONTRACTS.  157 

(c)    SIMPLE  CONTRACTS. 

THOMPSON  V.  CHOUTEAt 
1849.     Supreme  Coi-'""  'IT  ^. Tree. UT,.-. 

JUDCiK  NaPTON  delivered  t.hc^  '>^in;i';ir  fi    U;c  vi'-.-rc. 

The  special  agreement  upon  which  this  action  of  assumpsit  is  based 
was  executed  bv  the  parties  in  discharge  of  a  previous  ■ 
signed  by  "J.  T.'  V.  Thompson  and  A.  Shiff,  for  JacoH  M.  ■ 

The  substitute  agreement  relates  to  the  same  suV. 
signed  by  "A.  Shiff,  by  his  agents,  Choteau  |&  \  :.- 
Thompson."     In  this  last  agreement  Thompson  "agr 
not  exceeding  12,500  bushels  of  good,  merchantable  ■■  .      .  '   -i-w 
Shiff,  to  be  r^iid  for  at  the  rate  of  40  cents  per  bushel  of  56  rounds, 
and  th'^  '  IflF  also,  in  full  of  the  written  contract,  agr 

ceive  nr  jng  the  said  12,500  bushels  of  com,  and  to  1 

for  at  the  rate  of  40  cents  per  bushel,  clear  of  all  charges,  payment  10 
be  nn^de  at  St,  Louis,  by  Choteau  &  Valle,  and  the  corn  to  be 
!■  =  ;  ;  I  to  Choteau  &  Valle,  at  St.  Louis,  by  said  Thompson,  within 
the  tii>-ning  month,  to  be  at  Shiff's  risk  and  expense  when  on  board 
the  steanibr)at.  The  declaration  avers  the  delivery  of  the  corn,  and 
that  by  the  agreement  the  defendants,  Choteau  &  Valle,  were  bound 
to  pay  the  six  thousand  dollars.  The  only  question  for  our  determina- 
tion is,  whether  the  contract,  as  set  out,  bound  the  defendants. 

The  general  principles  which  regulate  the  liabilities  of  principal 
and  agent  are  not  disputed.    Where  the  agent  acts  in  the  name  of  his 
principal  the  agent  is  not  liable.    Patterson  v.  Gaud,  15  East.  tTv 
But  this  rule  has  its  exceptions;  it  does  not  apply  when  the  pri 
is       '  to  the  party  dealing  with  the  agent;  nor     ' 

n?  le  principal  to  resort  to ;  nor  where  the  ai 

!:-  his  own. 

question  in  this  case  is  whether  the  agent  has  ma. 
contract  his  own.  The  contract  is  set  out  in  pai-e  verba  in  the  declara- 
tion, rind  no  question  in  relation  to  the  principal  being  a  foreigner,  or 
tiT.l       ^n,  or  irresponsible,  are  presented  by  the  case.    The  written 
CM  '-fie  is  relied  on. 

be  any  doubt  that  Shiflf,  the  principal,  was  bound  by  this 
It  is  exeruted  in  his  name.        '         led  by  his  agent* 
ir  rreciselv  that  form  directed  l^  v.  ^vhen  +he  ^g-^nf 

'    the   principal.      Spencer   v.   Fi-. 
_s  to  deliver  the  corn  to  Shiff,  and 
for  it  at  the  rn;e  of  40  cents  per  bushel.    It  is  true  tha 
;.-  .,:  i ..  ..,         ..  c^   Louis,  and  by  Choteau  &  V.-'J''^ 

ition  of  the  place  and  mode 
icau  0:  \  aiic  :.  -i       ,     .  ,         . 

names  are  not  i 


it  was  i:  •  .  parties  to  be 

iclland  S 

.  ents  of  each  int  were  sufficient 

-uch  prooi"  I  ..v.aded  to  be  created 

;inent  wi  y  belongs.     The  pre- 

uli  the  views  expressed  in 

'  .ns  to  the  court  to  overrule 
<»f  the  complaint,  and  for 
■■(.her  procv  ■■i  this  opinion.^ 


:1  to  a  nt 

nstrument,  an' 

.Liit  to  in  ' 

any  other  per- 

i  iliat  par 

nadmissible  to 

-  "It  fnr  a  - 

'ett  V.  Hawley, 

^  6^  Ind.  412, 

,  Hull,  59  Me. 

ICrt,-.    .,-• 

V  as  held  to  be  the 

court  d 

dence  to  show  that 

and  for  ;... 

of  the  parish  had 

174,  Barrows. 

"When  a  man  has 

mise  to  pay,' 

Met  consideration  for 

wid  jxtstice  are  not  \ery  Hkely  to  be  gainers  by 

ro  undertake  to  prove  that  he  did  not  actually 

_  meant  and  the  other  party  understood  that  he 

.  whose  promise  the  writing  does  not  purport  to 

Compare  with  this  case,  Shoe,  etc.,  Bank  v.  Dix, 

linger  reason  for  excluding  parol  evidence  when 

nrought  by  a  holder  in  due  course.    See  Casco  Nat. 

307. 

is  ambigxious,  the  tendency  of  the  more  modern  deci 

.mission  of  parol  evidence  to  show  the  intent  of  the 

>f  1  ases,  Reinhard  on  Agency,  §  216.     In  Hardy  v. 

s,  J.,  said:     "Ordinarily  no  extrinsic  testimony 

1  van;-  or  explain  negotiable  instruments.     Such 

pap'  '"  meaning  which  the  law  affixes  to  it 

r-mr:  'ide.    One  of  the  few  exceptions  to  the 

the  paper  suggests  a  doubt  as  to  thi 

.my  of  the  signers  has  acted  in  afFixinr 

'    "ed  between  the  original  par - 

c  Co.  V.  Sinsheimer,  48  Md. 

.i^i.>.e  in  "^"''^  ^  .-..'-s  does  not  con 

cnt,  but  'e  intention  of 

,'-ith  any  ■  certainty  from 

ale  in  Me.  vgency,  §§  441- 


SIMPLE    CONTRACTS.  157 

(c)    SIMPLE  CONTRACTS. 

THOMPSON  V.  CHOUTEAU  and  VALLE. 
1849.     Supreme  Court  of  ]\Iissouri.     12  Mo.  488. 

Judge  Napton  delivered  the  opinion  of  the  court. 

The  special  agreement  upon  which  this  action  of  assumpsit  is  based 
was  executed  bv  the  parties  in  discharge  of  a  previous  agreement 
signed  by  "J.  T.'  V.  Thompson  and  A.  Shiff,  for  Jacob  M.  Ober." 

The  substitute  agreement  relates  to  the  same  subject-matter,  and  is 
signed  by  "A.  Shiff,  by  his  agents,  Choteau  |&  Valle  and  J.  T.  V. 
Thompson."  In  this  last  agreement  Thompson  "agrees  to  furnish 
not  exceeding  12,500  bushels  of  good,  merchantable  corn  to  said 
Shifif,  to  be  paid  for  at  the  rate  of  40  cents  per  bushel  of  56  pounds, 
and  the  said  Shiff  also,  in  full  of  the  written  contract,  agrees  to  re- 
ceive not  exceeding  the  said  12,500  bushels  of  corn,  and  to  pay  there- 
for at  the  rate  of  40  cents  per  bushel,  clear  of  all  charges,  payment  to 
be  made  at  St.  Louis,  by  Choteau  &  Valle,  and  the  corn  to  be 
shipped  to  Choteau  &  Valle,  at  St.  Louis,  by  said  Thompson,  within 
the  ensuing  month,  to  be  at  Shiff's  risk  and  expense  when  on  board 
the  steamboat.  The  declaration  avers  the  delivery  of  the  corn,  and 
that  by  the  agreement  the  defendants,  Choteau  &  Valle,  were  bound 
to  pay  the  six  thousand  dollars.  The  only  question  for  our  determina- 
tion is,  whether  the  contract,  as  set  out,  bound  the  defendants. 

The  general  principles  which  regulate  the  liabilities  of  principal 
and  agent  are  not  disputed.  Where  the  agent  acts  in  the  name  of  his 
principal  the  agent  is  not  liable.  Patterson  v.  Gaud,  15  East.  162. 
But  this  rule  has  its  exceptions ;  it  does  not  apply  when  the  principal 
is  unknown  to  the  party  dealing  with  the  agent ;  nor  where  there  is 
no  responsible  principal  to  resort  to ;  nor  where  the  agent  makes  the 
undertaking  his  own. 

The  only  question  in  this  case  is  whether  the  agent  has  made  the 
contract  his  own.  The  contract  is  set  out  in  pace  verba  in  the  declara- 
tion, and  no  question  in  relation  to  the  principal  being  a  foreigner,  or 
unknown,  or  irresponsible,  are  presented  by  the  case.  The  written 
contract  alone  is  relied  on. 

Can  there  be  any  doubt  that  Shiff,  the  principal,  was  bound  by  this 
contract?  It  is  executed  in  his  name,  and  signed  by  his  agents 
for  him  in  precisely  that  form  directed  by  the  law.  when  the  agent 
intends  to  bind  the  principal.  Spencer  v.  Field,  10  Wend.  87. 
Thompson  agrees  to  deliver  the  com  to  Shiff,  and  Shiff  agrees  to  pay 
for  it  at  the  rate  of  40  cents  per  bushel.  It  is  true  that  this  payment 
is  to  be  made  at  St.  Louis,  and  by  Choteau  &  Valle,  but  that  seems 
to  be  a  mere  designation  of  the  place  and  mode  of  payment.  Cho- 
teau &  Valle  take  care  not  to  bind  themselves  to  anything.  Their 
names  are  not  to  the  instrument  except  as  agents.    It  is  Shiff's  con- 


158  EXECUTION    OF   AUTHORITY, 

tract  to  pay,  through  Choteau  &  Valle ;  not  the  contract  of  Choteaii 
&  Valle.  It  does  not  appear  upon  the  face  of  the  writing  that  Choteau 
&  Valle  have  made  any  contract  with  the  plaintiff.  They  have 
merely  executed  a  contract  for  Shiff,  their  principal,  and  executed 
it  in  the  name  of  their  principal,  so  as  to  bind  him  and  not  them. 
What  facts  may  exist  outside  of  the  instrument  of  writing  which 
might  subject  them  to  responsibility,  cannot  be  considered  in  this 
case.  No  such  facts  are  alleged  in  the  declaration.  Judgment 
affirmed.^ 


OFFUTT  V.  AYRES. 
1828.     Court  of  Appeals  of  Kentucky,     7  T.  B.  Mon.  356. 

Opinion  of  the  court  by  Judge  Mills. 

This  is  a  summons  and  petition  against  Benjamin  Ay  res,  on  the 
following  note : 

"On  the  twenty-fifth  day  of  December,  eighteen  hundred  and 
twenty-five,  I  promise  to  pay  S.  Offutt  one  hundred  and  fourteen 
dollars,  for  the  hire  of  Harry.  For  B.  Ayres, 

Lex.,  Feb.  28,  1825.  W.  B,  Ayres,'' 

There  was  a  demurrer  to  the  petition,  and  that  demurrer  was  sus- 
tained by  the  court  below,  and  judgment  rendered  for  the  defendant, 
from  which  the  plaintiff  has  appealed. 

The  question  is,  is  this  note  to  be  taken  on  its  face  as  the  note  of 
B.  Ayres,  or  W.  B.  Ayres  ?  If  of  the  former,  the  judgment  is  wrong ; 
if  the  latter,  the  judgment  is  right. 

Whether  W.  B.  Ayres  was  or  was  not  the  agent  of  B.  Ayres  is  not 
material.  If  he  was  not  the  agent,  then  there  could  be  no  question 
that  he  alone  is  bound  in  the .  note.  If  he  was  the  agent,  it  was 
competent  for  him  to  interpose  his  own  credit  and  deal  upon  it, 
while  dealing  for  his  principal ;  and  the  question  then  turns  upon  the 
meaning  of  the  instrument.  On  whom  does  it  impose  the  obligation, 
on  the  principal  or  the  agent? 

Upon  the  letter  of  the  instrument  there  can  be  no  doubt.  Accord- 
ing to  its  grammatical  import,  it  is  the  undertaking  of  W.  B.  Ayres. 
His  signature  to  the  note  is  in  the  same  case,  with  the  pronoun  "I," 
which  precedes  ;  and  "1"  is  nominative  to  the  very  "promise."  Trans- 
pose the  words  as  we  please,  the  same  meaning  follows  their  letter. 
If  the  note  read,  "I,  W.  B.  Ayres,  promise  to  pay  for  B.  Ayres,"  the 
sense  would  have  been  so  striking  that  there  could  not  have  been 
any  dispute,  without  violence  to  the  letter  ;  and  yet  the  order  in  which 
the  words  are  placed  leaves  the  sense  the  same,  and  places  every  noun 

^Accord:   Thilmany  v.  Iowa  Paper-Bag  Co.,  108  la.  357. 


/     ;    ,r     ^. 

L  the  san, 

ode  and  ten=; 

XlKl       ill       L  L  i 

lie  more 

■     9.!^    to 

'I 

•;■'■-''' 

ilar  use, 
on  of  tl 

SO  far  trom  the 
ie  narlies  in  the 

sense  that,  to 

acceptation.    But  this  di 

Tt  of  chane^ins^  grammancai 

ves.  and  placing  one  case  of  ' 

ry  to  aver  and  prove  mi:  -d,  in 

:^''r!.'^nt  itself.    Until  this  i;  o  has 

be  left  bound  by  th.  •    ^ 

of  his  under 

".of  Ivici'Can  v.  x\iorrisnii^  i  .\i:'.r>.  . 

.  the  chief  jv  -renting,  must  be  affirmed,  v.iUi 

j. —  (Dissenting. ) 
vd  by  petition  and  summons,  and  "states  that  he  holds 
'■defendant,  Benjamin  Ayres,»in  substance  as  folio weth : 

'  ^' rnber,  1825,  I  promise  to  pay  S.  Offutt  one  hun- 

llars,  for  the  hire  of  Harry.     For  B.  Ayres, 
ry  28,  1825.  -'    .  ^^^ 

r. 
emains  unpaid,"  etc.  • 

'    lemurred.    Tnr  ,rairt  gave  judp^n-u  nt  f, !r  'Irf.-nr'- 

■  ■  Avritiiii;,  iL  ^  :ems  to  m"  " 
by  his  agent,  W.  J 

c:i3.'-.u.-  '         [  the  in^ 

•orly     pi;  '71'lcrStri: 

[  by  liiS  ciil;cUL  i> 
and  cle3!Tn.-^-.  '■■ 
m  common  use.    Ihat  the  writing  was  i: 
-i    w-mT     n  promise  by  B,  Ayres,  by  f^' 
B.  Ayres,  as  his  agent, 
eviiA'.i.    :ul:     1  understood  at  once  by  ins ; 

in  it  neoes=;arv  t  ,  c.ill  in  anything  more  by  w 
:iin  to  my  view, 
it  to  be  the  note  of  Benjamin 
of  \V.  B.  Ayres  to  act  for  hmn  in  ir 

*^if'  statement  in  the  petition,  that  'i 

Henjami  7  plea  Benjamin  Ayres  had  <' 


•  ve  ma(i 

uted  a  • 

;me  of  V: 


sucl  s 


•lit  1  act  of  Choteau 

'  itiiig-  that  Choteau 

the   plaintiff.    They  have 

•r  i^'-i'-"'ipal,  and  executed 

:         nim  and  not  them. 

uisrrumcnt  of  writing  which 

cannot  be  considered  in  this 

lie   declaration.     Judgment 


B.  Mon.  356. 


Ayres,  on  the 


t\\. 


fn  mi  whirl' 


I VI. 

tlr 

CO' 


iensc  V 
any  dh] 
the  wor 


Offutt  one  hundred  and  fourteen 
For  B.  Ayres^ 
W.  B.  Ayres/^ 

hat  demurrer  was  sus- 
cndered  for  the  defendant, 

as  the  note  of 
:ient  is  wrong; 

not  the  agent  of  B.  Ayres  is  not 

lien  there  could  be  no  question 

If  he  was  the  agent,  it  was 

own  credit  and  deal  upon  it, 

.cl  the.  question  then  turns  upon  the 

\-h':>m  does  it  impose  the  obligation, 

'ubt.    Accord- 

'.,  it  IS  the  u  -;  of  W.  B.  Ayres. 

in  the  same  e.... ,  >, ..h  the  pronoun  "I," 

cminative  to  the  very  ''promise."  Trans- 

''  ■  same  meaning  follows  their  letter. 

promise  to  pay  for  B.  Ayres,"  the 

ihere  could  not  have  been 

,  and  vet  the  order  in  which 

■  1  places  every  noun 


SIMPLE    CONTRACTS.  1 59 

and  verb  in  the  same  case  and  mode  and  tense  in  which  they  would 
stand  in  the  way  supposed.  The  position  only  makes  the  sentence  a 
little  more  obscure. 

It  may  be  said  that  the  note  is  an  inaccurate  way  of  executing  an 
authority,  and  that  it  is  so  customary  as  to  demand  of  the  court  a 
construction  of  the  words  different  from  their  proper  meaning.  It  is 
true  that  instances  may  be  found  where  the  meaning  of  a  word  is 
changed  by  its  popular  use,  so  far  from  the  proper  sense  that,  to 
effectuate  the  intention  of  the  parties  in  the  use  of  it,  courts  have 
adopted  the  popular  acceptation.  But  this  doctrine  ought  not  to  be 
carried  to  the  extent  of  changing  grammatical  construction,  and 
transposing  nominatives,  and  placing  one  case  of  nouns  for  another. 
To  do  this,  it  is  necessary  to  aver  and  prove  mistake  or  fraud,  in 
order  to  change  the  instrument  itself.  Until  this  is  done,  he  who  has 
undertaken,  or  "promised,"  must  be  left  bound  by  that  undertaking 
or  promise ;  and  it  would  be  erroneous  to  release  him  from  the  literal 
and  proper  meaning  of  his  undertaking. 

With  this  accords  the  case  of  McBean  v.  Morrison,  i  ]\Iarsh.  545, 
and  Duval  v.  Craig,  2  Wheat.  56-57. 

The  judgment,  the  chief  justice  dissenting,  must  be  affirmed,  with 
costs. 

Bibb,  Ch.  J. —  (Dissenting.) 

Offutt  sued  by  petition  and  summons,  and  "states  that  he  holds 
a  note  on  the  defendant,  Benjamin  Ayres,  in  substance  as  followeth : 
On  the  25th  of  December,  1825,  I  promise  to  pay  S.  Offutt  one  hun- 
dred and  fourteen  dollars,  for  the  hire  of  Harry.     For  B.  Ayres, 

Lexington,  February  28,  1825.  W.  B.  Ayres. 

Test,  Ezra  Offutt. 

Yet  said  debt  remains  unpaid."  etc. 

The  defendant  demurred.  The  court  gave  judgment  for  defend- 
ant. 

Upon  the  face  of  the  writing,  it  seems  to  me  to  be  the  note  of  B. 
Ayres,  executed  for  him  by  his  agent,  W.  B.  Ayres.  That  such  is 
the  genuine,  unadulterated  meaning  of  the  instrument,  my  mind  per- 
ceives as  clearly  as  it  is  capable  of  understanding  any  proposition. 
This  mode  of  executing  a  note  for  the  principal  by  his  agent  is  plain, 
compendious,  and,  from  its  artless  simplicity  and  clearness,  is  con- 
venient and  in  common  use.  That  the  writing  was  intended  to  sig- 
nify, and  does  signify,  a  promise  by  B.  Ayres,  by  his  note  of  hand, 
executed  for  him  by  W.  B.  Ayres,  as  his  agent,  is,  to  my  mind,  a 
self-evident  truth,  to  be  understood  at  once  by  inspection.  Nor  do  I 
deem  it  necessary  to  call  in  anything  more  by  way  of  confirmation 
of  a  proposition  so  plain  to  my  view. 

The  petition  states  it  to  be  the  note  of  Benjamin  Ayres  ;  he  has  not 
denied  the  authority  of  W.  B.  Ayres  to  act  for  him  in  that  behalf; 
the  demurrer  admits  the  statement  in  the  petition,  that  it  is  the  note 
of  Benjamin  Ayres.   If  by  plea  Benjamin  Ayres  had  denied  that  the 


l6o  EXECUTION    OF   AUTHORITY. 

note  was  his  act,  then,  to  have  charged  him,  it  would  have  been  neces- 
sary to  prove  the  authority  of  W.  B.  Ayres.  The  demurrer  does  not 
question  the  authority  of  W.  B.  Ayres  to  act  for  Benjamin.  But  if 
W.  B.  Ayres  had  falsely  assumed  an  agency,  when  in  truth  he  had 
not  authority  to  bind  Benjamin,  then  W.  B.  Ayres  would  have  been 
personally  responsible  ;  not  by  reason  of  this  or  that  form  by  which  he 
called  himself  agent,  but  upon  the  general  principle  that  every  one 
becomes  personally  responsible  for  falsely  asserting  an  authority  and 
acting  on  behalf  of  another,  when  in  truth  and  in  fact  he  had  not  the 
lawful  authority  so  to  act  in  the  name  of  that  other. 

My  opinion  is  that  the  judgment  should  have  been  for  the  plaintiff, 
Ofifutt.i 


HIGGINS  V.  SENIOR. 
1841.     Court  of  Exchequer.     8  M.  &  W.  834. 

Parke,  B. — The  question  in  this  case,  which  was  argued  before  us 
(a)  in  the  course  of  the  last  term,  may  be  stated  to  be,  whether  in 
an  action  on  an  agreement  in  writing,  purporting  on  the  face  of  it  to 
be  made  by  the  defendant,  and  subscribed  by  him,  for  the  sale  and 
delivery  by  him  of  goods  above  the  value  of  iio,  it  is  competent  for 
the  defendant  to  discharge  himself,  on  an  issue  on  the  plea  of  non 
assumpsit,  by  proving  that  the  agreement  was  really  made  by  him 
by  the  authority  of  and  as  agent  for  a  third  person,  and  that  the 
plaintiff  knew  those  facts  at  the  time  when  the  agreement  was  made 
and  signed.  Upon  consideration,  we  think  that  it  was  not,  and  that 
the  rule  for  a  new  trial  must  be  discharged. 

There  is  no  doubt  that  where  such  an  agreement  is  made,  it  is 
competent  to  show  that  one  or  both  of  the  contracting  parties  were 
agents  for  other  persons,  and  acted  as  such  agents  in  making  the  con- 
tract, so  as  to  give  the  benefit  of  the  contract  on  the  one  hand  to 
(b),  and  charge  with  liability  on  the  other  (c),  the  unnamed  prin- 
cipals ;  and  this,  whether  the  agreement  be  or  be  not  required  to  be  in 
writing  by  the  statute  of  frauds :  and  this  evidence  in  no  way  contra- 
dicts the  written  agreement.  It  does  not  deny  that  it  is  binding  on 
those  whom,  on  the  face  of  it,  it  purports  to  bind,  but  shows  that  it 
also  binds  another,  by  reason  that  the  act  of  the  agent,  in  signing  the 
agreement  in  pursuance  of  his  authority,  is  in  law  the  act  of  the 
principal. 

But,  on  the  other  hand,  to  allow  evidence  to  be  given  that  the  party 
who  appears  on  the  face  of  the  instrument  to  be  personally  a  contract- 

^  Accord:  Crutcher  v.  M.  &  C.  R.  R.,  38  Ala.  579- 

Contra:  King  v.  Handy,  2  111.  App.  212;  Ford  v.  Dist.  of  Stuart,  46  la. 
294;  McCall  V.  Clayton,  44  N.  Car.  422. 


rTRAc:";-.  i-?i 


-ij   ',■.>; ill  - 

view  o{    '- 


is  true  ;  nes  v.  i. 

tiic  ground  I....L  ti  ■.  ^.■,:-,^.'..     .cJly  i^-"*^'- 
r  Lord  Denman,  in  deliveringf  the  ; 


V.  Har. 


person,  named  ] 


to  pay  a  debt  :  d  to  iii: 

n;^ving  subsequt: .,   :  possess!' 

>;  of  Hill  y.  P.errott,  3  Taunt. 


;ity  for  the  .' 
to  char.  ut,  not  to  discharge  Rcao 


PRAT:  \UPP.F. 


:;  Bcr'.:orc.  of  S; 


s  to  u? 


EXECUTION    OF  AUTHORITY 


then,  t( 


vo  been  nece 
"•'"r  does  n 
.«n.    But  . 
;h  he  ha<i 
liave  been 
which  \ 
every  Oil 
asserting  an  authority  and 
'   ■  ''<'  fact  he  had  not  thr- 

-  "nr  the  plaintil 


the  cou' 


;ued  before  us 
lie,  whether  in 


rX  I  or 

»f  non 

made  by  him 

f^rid  that  the 

\\-as  made 


nts  m  making  the  con- 

r    tin    '.-hi-    onp   Inncl    tiT 


IV  contra- 


pr 


e  a,i;ciU,  in  sij<iiirij>'  the 
".n  l.iAv  the  act  of  the 

...   .    ...>v ,   ..,^t  the  party 

CO  be  personally  a  contract- 


,f    "^riiirf 


SIMPLE    CONTRACTS.  l6l 

ing  party,  is  not  such,  would  be  to  allow  parol  evidence  to  contradict 
the  written  agreement,  which  cannot  be  done.  And  this  view  of  the 
law  accords  with  the  decisions,  not  merely  as  to  bills  of  exchange  (d) 
signed  by  a  person,  without  stating  his  agency  on  the  face  of  the  bill, 
but  as  to  other  written  contracts,  namely,  the  cases  of  Jones  v.  Little- 
dale,  6  Ad.  &  Ell.  486,  I  Nev.  &  A.  677,  and  Magee  v.  Atkinson,  2 
M.  &  W.  440.  It  is  true  that  the  case  of  Jones  v.  Littledale  might  be 
supported  on  the  ground  that  the  agent  really  intended  to  contract  as 
principal ;  but  Lord  Denman,  in  delivering  the  judgment  of  the  court, 
lays  down  this  as  a  general  proposition,  ''that  if  the  agent  contracts 
in  such  a  form  as  to  make  himself  personally  responsible,  he  cannot 
afterwards,  whether  his  principal  were  or  were  not  known  at  the  time 
of  the  contract,  relieve  himself  from  that  responsibility."  And  this 
is  also  laid  down  in  Story  on  Agency,  §269.  Alagee  v.  Atkinson  is  a 
direct  authority,  and  cannot  be  distinguished  from  this  case. 

The  case  of  Wilson  v.  Hart,  7  Taunt.  295,  i  Moore  45,  which  was 
cited  on  the  other  side,  is  clearly  distinguishable.  The  contract  in 
writing  was,  on  the  face  of  it,  with  another  person,  named  Read,  ap- 
pearing to  be  the  principal  buyer ;  but  there  being  evidence  that  the 
defendant  fraudulently  put  forward  Read  as  the  buyer,  whom  he 
knew  to  be  insolvent,  in  order  to  pay  a  debt  from  Read  to  himself 
with  the  goods  purchased,  and  having  subsequently  got  possession  of 
them,  it  was  held,  on  the  principle  of  Hill  v.  Perrott,  3  Taunt.  274, 
and  other  cases,  that  the  defendant  was  liable,  and  as  is  observed  by 
Mr.  Smith,  in  the  very  able  work  to  which  we  were  referred  (Leading 
Cases,  Vol.  2,  p.  125)^  that  decision  turned  altogether  upon  the  fraud, 
and  if  it  had  not,  it  would  have  been  an  authority  for  the  admission 
of  parol  evidence  to  charge  the  defendant,  not  to  discharge  Read. 

Rule  discharged.^ 


PRATT  V.  BEAUPRE. 

Supreme  Court  of  ]\Iinnesota.     13  Alinn.  187. 

McMillan,  J. — This  action  is  brought  by  the  plaintiff  to  recover 
damages  for  an  alleged  breach  of  a  contract  to  transport  and  deliver 
certain  flour.  The  contract  is  in  the  following  words : 

"Saint  Paul,  ^lay  6,  1863. 
"We,  Temple  &  Beaupre,  of  Saint  Paul,  Ramsey  County,  Minne- 
sota, for  the  consideration  of  twenty-five  dollars  to  us  in  hand  paid, 
the  receipt  whereof  is  hereby  acknowledged,  have  bargained,  agreed 

*  For  discussion  of  English  and  American  rules  see  Barbre  v.  Goodale,  28 
Ore.  465,  470. 

11 — Reinhard  Cases. 


l62  EXECUTION    OF   AUTHORITY. 

and  contracted  with  B.  F.  Pratt,  of  Saint  Peter,  to  receive  at  his  mill 
in  Saint  Peter,  county  of  Nicollet,  state  aforesaid,  one  thousand  and 
four  hundred  barrels  (1,400)  of  flour,  and  transport  the  same  and 
deliver  to  Capt.  M.  P.  Small,  commissary  of  subsistence  for  the 
United  States,  on  the  levee  in  Saint  Paul,  at  such  time  as  he,  the 
said  Small,  shall  direct,  for  the  sum  of  twenty-five  cents  for  each 
barrel  so  transported  and  delivered  in  good  order. 

(Signed)  Temple  &  Beaupre, 

B.  F.  Pratt.  Agents  steamer  Flora." 

The  words  "agents  steamer  Flora,"  attached  to  the  signature  of 
Temple  &  Beaupre,  are  dcscriptio  personarwn.  The  rule  is  that 
when  words  which  may  be  either  descriptive  of  the  person,  or  in- 
dicative of  the  character  in  which  a  person  contracts,  are  affixed  to 
the  name  of  a  contracting  party,  prima  facie,  they  are  descriptive 
of  the  person  only ;  but  the  fact  that  they  were  not  intended  by  the 
parties  as  descriptive  of  the  person,  but  were  understood  as  deter- 
mining the  character  in  which  the  party  contracted,  may  be  shown 
by  extrinsic  evidence,  but  the  burden  of  proof  rests  upon  the  party 
seeking  to  change  the  prima  facie  character  of  the  contract.  And 
when  a  party  who  thus  seeks  to  change  the  prima  facie  character  of 
the  contract,  does  so  on  the  ground  of  agency  in  making  the  contract, 
the  fact  of  his  agency  must  be  established ;  for  if  he  acted  as  an  agent 
without  authority,  he  is  personally  liable.  On  the  trial  of  this  cause, 
the  only  evidence  was  the  deposition  on  the  part  of  the  plaintiff.  The 
defendant  offered  no  evidence.  There  is  no  evidence  to  establish  the 
fact  of  the  agency  of  Temple  &  Beaupre.  In  the  absence  of  evidence 
to  prove  that  fact,  those  portions  of  the  deposition  of  the  plaintiff 
indicated  by  the  letters  a,  b,  and  c,  respectively,  although  under  other 
circumstances  they  might  be  competent  as  evidence  tending  to  show 
that  the  plaintiff  contracted  with  them  as  agents,  are  not  material. 
They  were,  therefore,  properly  stricken  out.  This  determines  the 
only  point  raised  by  the  defendant's  counsel. 

The  judgment  below  is  affirmed.^ 

^In  Prather  v.  Ross,  17  Ind.  495,  Davison.  J.,  quoted  with  approval  the  fol- 
lowing passage  from  Story  on  Agency :  "In  order  to  bind  the  principal  and 
make  it  his  contract,  the  instrument  must  purport,  on  its  face,  to  be  the  con- 
tract of  the  principal,  and  his  name  must  be  inserted  in  it,  and  not  merely  the 
name  of  the  agent,  even  though  the  latter  be  described  as  agent  in  the  instru- 
ment." 

"Where  the  question  of  agency  in  making  a  contract  arises  there  is  a  broad 
line  of  distinction  between  instruments  under  seal  and  stipulations  in  writing 
not  under  seal,  or  by  parol.  In  the  former  case  the  contract  must  be  in  the 
name  of  the  principal,  must  be  under  seal,  and  must  purport  to  be  his  deed  and 
not  the  deed  of  the  agent  covenanting  for  him.  In  the  latter  case  the  question 
is  always  one  of  intent;  and  the  court,  being  untrammelled  by  any  other  con- 
sideration, is  bound  to  give  it  effect.  As  the  meaning  of  the  law-maker  is  the 
law,  so  the  meaning  of  the  contracting  parties  is  the  agreement.  Words  are 
merely  the  symbols  they  employ  to  manifest  their  purpose  that  it  may  be  car- 


g:m?le  cov;rRAC~?>.  jCr, 

TlltO    execution.         I..     ...K.    v.^.•,;•i.^^        i -...     ..  ,;     r.l^l- 

ot  how  it  is  phrased,  nor  how  it  i;;  :  for  the 

:  :il    'f  with  tlit-  narrif^  ■  T  ! he  princip_-  ..,   -,..:-  Thf  in- 

),  and  when  that  is  asce:  .■.' 

lan,  loi  U.  S.  392,  395.  \ /as 
!  wkli  approval  b>  lnjcker,  J.,  in  Blount  v.  Tomiin&on,  4b  i>u.  /Si  ;S3. 


F.X' 


'.tracted  with  .    receive  at  his  mill 

.  Peter,  county  c  aid,  one  thousand  and 

■•• 'ted  barrel'-   ;  ransport  the  same  ^nd 

C^apt.  M  of  subsistence  for  tlie 

",     "   '  .,  at  such  time  as  he,  the 

twenty-five  cents  for  each 
good  order. 

Temple  &  Beaupre, 
PftATf.  Agents  steamer  Flora." 

■ed  to  the  signature  of 
•Hi.     The  rule  is  that 
;).Ti  r  descriptive  of  the  person,  or  in- 

■(^:aiiv'  '-  ;i  iicr?;on  r.  ,7-i^;:i(-ts,  are  affixed  to- 

the  nan  ey  are  descriptive 

of  the  -  not  intended  by  the 

parties  understood  as  deter- 

m'l!  '  fd.  may  be  shown 

by  ts  upon  the  party 

seel  facie  k  .  ;te  contract.     And 

\vh<  to  chaiv^  '  facie  character  of 

ihe  .  ..round  of  agency  in  making  the  contract, 

till  e  established  :  +'  -  '^'  he  acted  as  an  agent 

w't  jnally  liable.  trial  of  this  cause, 

t'  'losition  on  the  p.ir-  ..f  the  plaintiff.    The 

e.    There  is  no  evidence  to  establish  the 

&  Beaupre.    In  the  al>sence  of  evidence 

);tions  of  the  deposition  of  the  plaintiff 

,  b,  and  c,  respectively,  although  under  other 

.,,-:t  be  competent  as  evidence  tending  to  show 

tracted  with  them  as  agents,  are  not  material. 

-    .-- -erly  stricken  out.    '''^''    determines  the 

adant's  counsel. 
Av  IS  atiirmed.^ 


f7  Ind.  495,  Davison,  J . 
tory  on  Agency:     "In 

c-  tol- 
■\  and 

■  not  mer'. 
:it  in  the  ; 

not 

ib   .. 

si'!' 

law-,  .-.■- 
merely 


agency  in  making  a  contr,  here  is  a  broad 

instruments  under  seal  ;!  ions  in  writing 

Tn  the  former  case  tlj:  must  be  in  the 

rder  seal,  and  must  piiii/oi;  to  be  his  deed  and 

iitir.g  for  him,    In  the  latter  case  the  question 

court,  hri:  melled  by  any  other  con- 

::Gt.   As  t'  -,  of  the  law-maker  is  the 

ratting  par, ■  -.  .>  me  agreement.   Words  are 

io  manifest  their  purpose  that  it  may  be  car- 


SIMPLE   CONTRACTS.  I63 

ried  into  execution.  If  the  contract  be  unsealed  and  the  meaning  clear,  it  mat- 
ters not  how  it  is  phrased,  nor  how  it  is  signed,  whether  by  the  agent  for  the 
principal  or  with  the  name  of  the  principal  by  the  agent  or  otherwise.  The  in- 
tent developed  is  alone  material,  and  when  that  is  ascertained  it  is  conclusive." 
Swayne,  J.,  in  Whitney  v.  Wyman,  loi  U.  S.  392,  395.  The  above  passage  was 
quoted  with  approval  by  Hocker,  J.,  in  Blount  v.  Tomlinson,  48  So.  751  753. 


CHAPTER  VI. 


DELEGATION  OF  AUTHORITY, 


Section  1. — What  Authority  cannot  be  Delegated. 

LYNN  V.  BURGOYNE. 
1852.     Court  of  Appeals  of  Kentucky.     13  B.  Men.  400. 

Crenshaw,  J. — This  is  an  action  of  debt  brought  by  Burgoyne  to 
recover  from  Lynn  the  amount  of  a  note,  executed  by  him  to  the 
plaintiff  for  the  sum  of  $420.  Lynn  rehed  for  his  defense  that  there 
was  no  consideration  for  the  note. 

The  plaintiff,  Burgoyne,  was  the  agent  of  the  Columbus  Insurance 
Company,  Ohio,  and  resided  at  Cincinnati ;  and  the  note  was  executed 
to  Burgoyne  in  consideration  that  he,  as  the  agent  of  the  company, 
would  issue  to  the  defendant  a  policy  of  insurance  to  the  amount  of 
$6,000,  upon  the  steamboat  JoJin  Dromon,  for  one  year. 

An  instrument,  signed  by  the  president  of  the  company,  purport- 
ing to  be  a  policy  of  insurance,  was  issued  and  delivered  to  the  de- 
fendant by  G.  W.  Williams,  the  bookkeeper  of  the  company  at  Cin- 
cinnati. This  instrument,  upon  its  face,  declares  that  it  "shall  not  be 
valid  until  countersigned  by  John  Burgoyne,  agent  at  Cincinnati." 
It  never  was  countersigned  by  Burgoyne.  But,  some  time  after  said 
instrument  had  been  delivered  to  the  defendant,  two  endorsements 
were  made  upon  its  back — one  extending  further  privileges  to  the 
defendant,  and  the  other  transferring  the  instrument  to  Smith  and 
others ;  and  these  endorsements  are  signed  with  the  name  of  Bur- 
goyne by  said  G.  W.  Williams,  and  it  is  contended  that,  if  the  policy 
were  otherwise  invalid  for  the  want  of  the  counter-signature  of  Bur- 
goyne in  regular  form,  that  his  name  to  said  endorsements  by  G.  W, 
Williams  is  a  sufficient  countersigning  to  make  the  instrument  a  valid 
policy. 

Whether  the  instrument,  had  it  been  issued  and  delivered  by  Bur- 
goyne himself,  as  a  policy  of  insurance,  would  have  been  valid,  not- 
withstanding an  omission  to  countersign  it,  and,  whether  the  endorse- 

164 


d  as  a  sufficient  countersigiiing  and  sanction 
iirgoyne,  the  agent,  had  ''  ^  --elf,  put  his 
1  not  be  decided.   For,  th  of  the  in- 

^  to  the  endorsements,  a.c  ail  the  acts  of 
per. 
■ii  Vviliiams  was  taken,  and  he  he  had 

::  -rity  for  signing  policies  of  ii''-  '        '  losses 

-.lid  company  on  policies  which   [  never 

a,  and  that  Burgoyne  recognize- '  —.-r.t. 

■n  with  the  company." 
r  may  have  ^  ■         '        '     Burgo)  :• 
' 'illiam?,  and  as  acts, 

Williams,  i- . 
1     ,  it  the  compar.  ;  ' 

U.'  of  doing  busmess  at  their  agency  m  li, 

.^ceived  their  sanction  and  approbation.      - .  er 

L',  might  be  given  to  such  acts,  in  the  absence  of  the 
-    ^f  the  agent,  need  not  be  determined.    The  instru- 
\i9.   face,  is  declared  to  be  invalid,  without  the 
-nt,  Burgoyne ;  he  alone  had  authority  to 
of  the  company  at  Cincinnati,  and  he  had 
ate  this  authority  to  another.     And  if  it 
;.  ^  .    j;  issued  as  this  was,  without  the  counter- 
-yne,  might  be  rendered  valid  and  effectual  by 
nt  approval  of  the  company ;  or,  that  the  company 
.1  been  in  the  habit  of  sanctioning  and  approving 
these  things  were  manifested  by  the  proof.    The 
'.y.  from  the  nature  of  their  business,  and  <"iie  large 
■d  to  be  in\' 
■  ntegrity.    A- 
•tless  selected  with  an  eye  to  these 
.  horn  the  company  confided,  from  \,  ... 
in  Mr.  Williams,  who,  whatever  ma^ 

-ity  and  bqsiness  capacit-  i   uv.- 

t  trusts  of  the  company-  ■  com- 

r. .  therefore,  from  the  record  .  -c  that  the 

wot  appear  to  be  a  of  in- 


'u^utci; 

^riicipal  and  ^?en' 


rriAPTrr: 


..>   Vu 


\  B.  Mon,  400. 

•  an  ^ct:of»  of  Af^ht  brought  by  Burgoyne  to 
re.  ;ecuted  by  him  to  the 

•  .'  liis  (h-fpTisc  that  there 

'-  V  '  uiijiiju^  Insurance 

the  note  was  executed 

t  of  the  company, 

:  to  the  amount  of 

lur  (jiie  year. 

-f  the  company,  purport- 
id  dehvered  to  the  de- 
.  ^.f  the  company  at  Cin- 
clares  that  it  "shall  not  be 
yne,  agent  at  Cincinnati." 
]v  But,  some  time  after  said 

in  -  .  two  endorsements 

wf  .  r  privileges  to  the 

de'  to  Smith  ani 

i  .   .    -     L.  -  name  of  Buv 

ntended  that,  if  the  polic 
v.i:  .   ;.;:,,:  ...-..^.f.v  --nature  of  Bui- 

goyne  in  re  "  ents  by  G.  W 

Williams  i-  iiKc  uic  nisirument  a  vali  : 

and  delivered  by  Bu: 

1  have  been  valid,  noi 

withstanciir. .  i .  whether  the  endors-. 


AUTHORITY.  165 

ments  might  be  regarded  as  a  sufficient  countersigning  and  sanction 
of  the  instrument  by  Burgoyne,  the  agent,  had  he,  himself,  put  his 
signature  to  them,  need  not  be  decided.  For,  the  issuing  of  the  in- 
strument, and  the  signatures  to  the  endorsements,  are  all  the  acts  of 
G.  W.  Williams,  the  bookkeeper. 

The  deposition  of  Williams  was  taken,  and  he  states  that  he  had 
Burgoyne's  "authority  for  signing  policies  of  insurance ;  that  losses 
were  paid  by  said  company  on  policies  which  Burgoyne  had  never 
signed  in  person,  and  that  Burgoyne  recognized  all  his  acts,  by  reason 
of  his  connection  with  the  company." 

But  whatever  may  have  been  done  by  Burgoyne  in  conferring  au- 
thority upon  Williams,  and  recognizing  his  acts,  and  in  paying  losses 
by  him,  incurred  under  policies  issued  by  Williams,  is,  in  our  opinion, 
immaterial.  For  there  is  no  evidence  that  the  company  had  been  ap- 
prized of  this  mode  of  doing  business  at  their  agency  in  Cincinnati, 
and  that  it  had  received  their  sanction  and  approbation.  Whatever 
effect,  therefore,  might  be  given  to  such  acts,  in  the  absence  of  the 
counter-signature  of  the  agent,  need  not  be  determined.  The  instru- 
ment itself,  upon  its  face,  is  declared  to  be  invalid,  without  the 
counter-signature  of  the  agent,  Burgoyne ;  he  alone  had  authority  to 
issue  policies  from  the  office  of  the  company  at  Cincinnati,  and  he  had 
no  right  or  power  to  delegate  this  authority  to  another.  And  if  it 
were  conceded  that  a  policy  issued  as  this  was,  without  the  counter- 
signature of  Burgoyne,  might  be  rendered  valid  and  effectual  by 
showing  a  subsequent  approval  of  the  company  ;  or,  that  the  company 
had  known,  and  had  been  in  the  habit  of  sanctioning  and  approving 
such  acts — none  of  these  things  were  manifested  by  the  proof.  The 
agent  of  the  company,  from  the  nature  of  their  business,  and  the  large 
amount  of  capital  which  may  be  supposed  to  be  involved,  ought  to 
be  a  man  of  intelligence,  prudence  and  integrity.  And  the  agent,  in 
this  case,  was  doubtless  selected  with  an  eye  to  these  necessary  qual- 
ities. He  it  is  in  whom  the  company  confided,  from  what  appears  in 
the  record,  and  not  in  Mr.  Williams,  who,  whatever  may  be  his  in- 
telligence, discretion,  integrity  and  business  capacity,  was  not  the 
man  to  whom  the  important  trusts  of  the  company  had  been  com- 
mitted. 

We  are  of  opinion,  therefore,  from  the  record  in  this  case,  that  the 
instrument  exhibited  does  not  appear  to  be  a  valid  policy  of  in- 
surance, and,  consequently,  that  there  seems  to  be  no  consideration 
for  the  note  sued  on. 

Wherefore  the  judgment  is  reversed,  and  the  cause  remanded  for 
a  new  trial. ^ 

*  "Ordinarily,  the  fiduciary  relation  of  principal  and  agent  cannot  be  trans- 
ferred to  a  stranger  by  the  agent  without  the  knowledge  or  consent  of  his 
principal;  and  one  having  from  another  bare  authority  to  submit  a  proposi- 
tion of  settlement,  or,  according  to  specific  directions,  enter  into  an  express 
contract  requiring  the  exercise  of  some  discretion  or  business  ability,  has  no 


l66  DELEGATION. 

COCHELL  V.  REYNOLDS  et  al. 

1900.     Supreme  Court  of  Indiana.     156  Ind.  14. 

Baker,  J. — Appellant  duly  gave  notice  of  his  application  and  ap- 
plied to  the  board  of  commissioners  of  White  county  for  a  license  to 
sell  intoxicating  liquors,  in  less  quantities  than  a  quart  at  a  time,  to  be 
drunk  on  his  premises.  At  the  proper  time  a  remonstrance  in  writ- 
ing, bearing  the  names  of  appellees,  was  filed  with  the  auditor 
of  the  county.  The  remonstrance  was  filed  in  pursuance  of  sec- 
tion nine  of  an  act  better  to  regulate  and  restrict  the  sale  of  in- 
toxicating liquors  (Acts  1895,  p.  248),  which  reads:  "Sec.  9.  If, 
three  days  before  any  regular  session  of  the  board  of  commissioners 
of  any  county,  a  remonstrance  in  writing,  signed  by  a  majority  of  the 
legal  voters  of  any  township,  or  ward  in  any  city,  situated  in  said 
county,  shall  be  filed  with  the  auditor  of  the  county  against  the  grant- 
ing of  a  license  to  any  applicant  for  the  sale  of  spirituous,  vinous, 
malt  or  other  intoxicating  liquors  under  the  law  of  the  state  of 
Indiana,  with  the  privilege  of  allowing  the  same  to  be  drunk  on  the 
premises  where  sold  within  the  limits  of  said  township,  or  city 
ward,  it  shall  be  unlawful  thereafter  for  such  board  of  commissioners 
to  grant  such  license  to  such  applicant  therefor  during  the  period  of 
two  years  from  the  date  of  the  filing  of  such  remonstrance.  If  any 
such  license  should  be  granted  by  said  board  during  said  period,  the 
same  shall  be  null  and  void,  and  the  holder  thereof  shall  be  liable 
for  any  sales  of  liquors  made  by  him  the  same  as  if  such  sales  were 
made  without  license.  The  number  to  constitute  a  majority  of  voters 
herein  referred  to  shall  be  determined  by  the  aggregate  vote  cast 
in  said  township  or  city  ward  for  candidates  for  the  highest  office 
at  the  last  election  preceding  the  filing  of  such  remonstrance."  It  is 
agreed  that  the  remonstrance  does  not  contain  the  required  number 
of  signatures,  unless  the  names  signed  by  an  agent  under  a  certain 
power  of  attorney  are  to  be  counted.  By  the  power  of  attorney  the 
agent  "is  hereby  authorized  to  sign  our  names  to  any  remonstrance 
against  the  granting  of  a  license  to  any  person  he  may  see  fit  to  re- 
monstrate against  receiving  or  having  any  such  license,  and  to  file 
such  remonstrance  in  the  office  of  the  auditor  of  White  county, 
Indiana,  at  any  time  he  may  see  fit  and  present  the  same  to  the  board 
of  commissioners  of  White  county,  Indiana,  and  all  such  power  and 

power  to  delegate  his  authority."  Fuller,  J.,  in  Fargo  v.  Cravens,  9  S.  Dak.  646, 
650. 

"The  attorney  who  has  been  retained  to  argue  a  cause  must  personally  per- 
form that  duty,  and  he  cannot  entrust  that  duty  to  another,  or,  as  said,_  let 
the  case  out  on  shares.  Yet  this  even  must  be  carefully  applied.  The  retainer 
of  one  member  of  a  firm  is  a  retainer  of  all  the  members,  and  unless  other- 
wise stipulated  the  cause  might  be  conducted  and  argued  by  any  one  of  them." 
Marston,  J.,  in  Eggleston  v.  Boardman,  37  Mich.  14,  19. 


o  to  do  at 

i  uiv  aaic  nercoi;.  iiie  error  as- 
Uant's  moti'-^n  for  a  new  trial.  The 
ther   or  should  be 

.  to  the  an  agfent 

power  ot  attorney, 
.    145  Ind.  8,  it  was  affirmed  1  ;.j^  ,;:; 

liquor  license  is  a  judicial  pi .  at  the 

\    nature '  of  a  complaint ;  that  ,  n 

rality  or  other  nnfitriess  of  thi 
;  and  that,  !.  )f  §  973  I>ai .li.  ; 

ner  1897,  ar;  .    a  civil  activon  '^ 

a  party  in  person  or  by  attorney,  , 
oplicant's  unfitness,  signed  by  the 
1  sufficient  compliance  with  §  72* : 
nd  Horner  1897,  which  provides  thai.    ;v  -;;:r.  v.: 
voter  of  said  township  to  remonstrate  in  writing 
:i  of  such  license  to  any  applicant  on  account  of 
■  unfitness  as  is  specified  in  this  act."     Under 
lemental  law  of  1895,  a  remonstrance  state 
:     iLute  a  defense  if  it  alleges  the  opposition  01 
the  granting  of  the  license.     Simply  that  they 
,'plicant's  conducting  a  saloon  in  their  township 
That  the  required  number,  with  proper  qualifi- 
i.rants  is  to  be  .'  '  . -d  by  proof.     H 

145.    Similar  pi  ■:.  are  found  in  dr 

courts.     Sauntmau  \,  iviaxwell,    154  lU' 
majority  of  the  voters  is  a  defense  in  the  ii 
I  the  application  for  the  license  is  pen:' 
;■  that  opposition,  though  not  c^^-'■-^'•• 
'I  answer.    And  it  would  seen". 
V  a^iK.  V.  Bell,  supra,  that  the  parties  iij  i.-ivrc-i  ir.igiit 
n  and  present  th^ir  remonstrance  in  writing  bv  pn  att^r- 
ve  in  the  judicial  pr 
\ere  the  only  maitfr 
§  240  R.  S.  1881  and  H<  s  that 

'i~e  of  any  person  is  requ...  ,^.  band- 

ar his  mark  shall  be  inte;  d  concur- 

;atute  requires  an  act  to  "  '  '  '     ' 

.  s  well  may  do  as  the  pri' 
•ice  of  s^'  ' 
a  that  tiv 
answer,  si:; 
's  signature  :  . . 
case,  i"  :ipearing  in  the 


I^/? 


I 


rn>: 


B 


icating 

u  his  r,r 

bearing 
the  couiv 
■-  nine  of 


'.'       rUty      CUUH! 

■'•ged  voter. - 
county, 
ing-  of  •>, 

inaU  CM    • 


t\\'<" 


for- 
the 

of  ^ 

Marston,  J., 


01  his  application  and  ap~ 
lie  county  for  a  license  to 
s  than  a  quart  at  a  time,  to  be 
time  a  remonstrance  in  writ- 
was  filed  with  the  auditor 
is  filed  in  pursuance  of  sec- 
'  '  and  restrict  the  sale  of  in- 
2^5),  which  reads:    "Sec.  9.    If, 
'or>  of  thr^  Ivard  of  commissioners 
a  majority  of  the 
situated  in  said 
f  the  county  against  the  grant- 
[''-'  '  ■^'-    ■    =^oirituous,  vinous, 
of  the  state  of 
•Irunk  on  the 
ship,   or  city 
.    -t  commissioners 
■.■^<r  the  period  of 
(^f  such  •  aice.     If  any 

1  board  U; ^  :;d  period,  the 

holder  thereof  shall  be  liable 

;he  same  as  if  such  sales  were 

o-onstitute  a  majority  of  voters 

:1  by  the  aggregate  vote  cast 

'ididates  for  the  highest  office 

^  of  such  remonstrance."    It  is 

I  contain  the  required  number 

d  by  an  agent  under  a  certain 

By  the  power  of  attorney  the 

ur  names  to  any  remonstrance 

'  see  fit  to  re- 

',  and  to  file 

lie  auditor  01    White  county, 

present  the  •^^^vne  to  the  board 

.liana,  a:  :h  power  and 

'irgo  V.  Cravens,  9  S.  Dak.  646, 

a  cause  must  personally  per- 
V  to  another,  or,  as  said,  let 
.plied.    The  rcUv-  " 
.  and  unless  c 

14,  19. 


AUTHORITY.  1 6/ 

authority  is  hereby  granted  to  our  said  attorney  in  fact  so  to  do  at 
any  time  within  two  years  from  the  date  hereof."  The  error  as- 
signed is  the  overruHng  of  appellant's  motion  for  a  new  trial.  The 
only  question  presented  is  whether  or  not  the  names  should  be 
counted  which  were  subscribed  to  the  remonstrance  by  an  agent 
under  the  foregoing  power  of  attorney. 

In  Castle  v.  Bell,  145  Ind.  8,  it  was  affirmed  that  the  hearing  on 
an  application  for  a  liquor  license  is  a  judicial  proceeding;  that  the 
application  is  in  the  nature  of  a  complaint ;  that  a  remonstrance,  on 
account  of  the  immorality  or  other  unfitness  of  the  applicant,  is  in  the 
nature  of  an  answer;  and  that,  by  virtue  of  §  973  Burns  1894,  §  961 
R.  S.  1881  and  Horner  1897,  authorizing  a  civil  action  to  be  prose- 
cuted or  defended  by  a  party  in  person  or  by  attorney,  a  remonstrance 
on  account  of  the  applicant's  unfitness,  signed  by  the  remonstrators' 
attorney  at  law,  is  a  sufficient  compliance  with  §  7298  Burns  1894, 
§  5314  R.  S.  1881  and  Horner  1897,  which  provides  that  "it  shall  be 
the  privilege  of  any  voter  of  said  township  to  remonstrate  in  writing 
against  the  granting  of  such  license  to  any  applicant  on  account  of 
immorality  or  other  unfitness  as  is  specified  in  this  act."  Under 
section  nine  of  the  supplemental  law  of  1895,  a  remonstrance  states 
facts  sufficient  to  constitute  a  defense  if  it  alleges  the  opposition  of 
the  remonstrators  to  the  granting  of  the  license.  Simply  that  they 
are  averse  to  the  applicant's  conducting  a  saloon  in  their  township 
or  ward  is  enough.  That  the  required  number,  with  proper  qualifi- 
cations, are  remonstrants  is  to  be  determined  by  proof.  Head  v. 
Doehleman,  148  Ind.  145.  Similar  proceedings  are  found  in  drainage 
cases  in  the  circuit  courts.  Sauntman  v.  Maxwell,  154  Ind.  114. 
The  opposition  of  a  majority  of  the  voters  is  a  defense  in  the  judicial 
proceeding  in  which  the  application  for  the  license  is  pending.  The 
remonstrance  stating  that  opposition,  though  not  strictly  a  pleading, 
is  in  the  nature  of  an  answer.  And  it  would  seem  to  follow  from  the 
decision  in  Castle  v.  Bell,  supra,  that  the  parties  in  interest  might 
prepare,  sign  and  present  their  remonstrance  in  writing  by  an  attor- 
ney at  law  as  their  representative  in  the  judicial  proceeding — if  a 
party's  signature  to  a  pleading  were  the  only  matter  involved.  Sec- 
tion 240  Burns  1894,  §  240  R.  S.  1881  and  Horner  1897  provides  that 
if  "the  written  signature  of  any  person  is  required,  the  proper  hand- 
writing of  such  person  or  his  mark  shall  be  intended,"  and  concur- 
rently adds  that  if  "a  statute  requires  an  act  to  be  done  which,  by 
law,  an  agent  or  deputy  as  well  may  do  as  the  principal,  such  requisi- 
tion shall  be  satisfied  by  the  performance  of  such  act  by  an  authorized 
agent  or  deputy."  But  if  it  were  held  that  the  demands  of  a  statute 
authorizing  the  filing  of  a  certain  answer,  signed  by  the  party  in  in- 
terest, were  fulfilled  by  the  party's  signature  made  by  his  authorized 
attorney  in  the  case,  nothing  appearing  in  the  statute  to  require 
the  personal  act  of  the  party,  such  as  a  personal  verification — the 


l68  DELEGATION, 

present  case  would  not  be  ended,  because  here  is  involved  an  act  of 
the  principal  which,  by  law,  may  not  as  well  be  done  by  an  agent. 

In  State  v.  Gerhardt,  145  Incl.  439,  33  L.  R.  A.  313,  and  Massey  v. 
Dunlap,  146  Ind.  350,  it  was  decided  that  by  section  nine  of  the  act 
of  1895  there  was  created  "a  species  of  self-government  which  by  the 
law  is  placed  in  the  hands  of  the  people  to  be  exercised  by  a  majority 
of  them  as  they  may  judge  to  be  for  their  best  interest;"  that  the  re- 
monstrance authorized  by  section  nine  must  be  against  a  particular 
application  for  license  and  not  against  the  liquor  traffic  generally; 
that,  therefore,  a  general  remonstrance  against  all  applications  pend- 
ing and  afterwards  to  be  made  within  two  years  is  unavailing. 

The  regulation  and  restraint  of  the  sale  of  intoxicating  liquors  is 
an  exercise  of  the  police  power  of  the  state.  That  power,  as  an 
original,  primary  power,  is  lodged  in  the  legislature.  The  legislature 
has  delegated  a  portion  of  the  power  to  the  voters  of  the  townships 
and  city  wards.  To  each  voter  is  committed  the  right  to  decide 
whether  or  not  he  will  oppose  any  or  all  applications.  He  may  be 
hostile  to  the  commerce  and  determine  that  he  will  resist  every  appli- 
cation. He  may  favor  a  well-regulated  traffic  and  conclude  to  thwart 
only  those  applicants  he  deems  unfit.  As  to  the  voter,  the  right  is 
delegated,  and  not  primary.  A  delegated  right  cannot  lawfully  be 
redelegated  in  the  absence  of  express  authority  to  that  end  from  the 
principal.  The  act  of  1895  does  not  give  the  voter,  in  respect  to  the 
decision  to  be  made  by  him,  the  right  of  substitution.  In  this  case  the 
voters  professed  to  authorize  an  agent  to  sign  the  voters'  names  to 
remonstrances  in  such  cases  as  the  agent  should  see  fit.  The  decision 
was  not  the  voters',  but  the  agent's,  multiplied  in  power  by  the  num- 
ber of  signatures  to  the  remonstrance.  The  names  signed  to  the  re- 
monstrance under  this  power  of  attorney  should  not  have  been 
counted,  because  the  voters  may  not  confer  upon  another  the  power 
of  deciding  for  them  the  matter  committed  to  their  judgment  and  dis- 
cretion by  the  legislature.  The  effectiveness  of  an  instrument  by 
which  the  voters  should  determine  for  themselves  the  matter  of 
discretion  and  employ  an  attorney  at  law  or  one  of  their  own  number 
to  appear  in  one  or  all  of  these  judicial  proceedings,  and  prepare,  sign 
and  file  a  remonstrance  in  each  case,  and  by  which  instrument  the 
attorney  accepted  the  employment  and  agreed  to  act  upon  the  ex- 
•  pressed  decision  of  the  voters,  is  not  directly  involved  in  this  appeal. 

Judgment  reversed,  with  instructions  to  sustain  the  motion  for  a 
new  trial. ^ 

^The  concurring  opinion  of  Jordan,  J.,  is  omitted. 

Compare  Ludwig  v.  Cory,  158  Ind.  582. 

"That  a  power  conferred  upon  an  agent  because  of  his  fitness  and  the  con- 
fidence reposed  in  him  cannot  be  delegated  by  him  to  another  is  a  general  and 
admitted  rule.  Legislatures  stand  in  this  relation  to  the  people  whom  they 
represent.  Hence  it  is  a  cardinal  principle  of  representative  government  that 
the  legislature  cannot  delegate  the  power  to  make  laws  to  any  other  body  or 
authority."    Agnew,  J.,  in  Locke's  Appeal,  72  Pa.  St.  491,  494. 


CKER,  :  M. 

ro,  '^'■'^ME  Court  OF 

-^     *     *     *     The  jUMge  ci-.-  -.o  uie 

^rapher,  or  to  any  one  else,  t  •  put  a 

t   into  a  bill  of  exceptions.  er, 

cnt  has  been  given  in  evidence,  e.n- 

;  introduction  into  the  bill  by  a  strict  :e  with 

1 ''re  this  is  done  no  judicial  duty  is  ^'-^  the 

^  required  of  him  is  to  re^ster  th  lit 

i  ^hall  go  into  t^^    '         f  exceptions,   m  ■■ 
the  bill  of  excepr  :ate  that  the  jud,., 

'hority  to  take  i.:..in  a  record  in  the  auditc! 
I  it  in  the  bill.    This  w^as  an  improper  dc 
I  as  it  devolved  upon  the  clerk  the  duty  of  deter- 
')f  the  record  should  go  into  the  bill,  as  well  as  the 
g  what  was  actually  in  evidence.   If  the  order  had 
;  record  in  another  state,  or  in  another  county,  we 
ould  doubt  that  the  judge  could  not  assign  to  the  clerk 
into  the  record,  and  the  principle  must  be  the 
e  question  of  the  locality  of  the  record.   The 
au  be  safely  followed  is  that  which  requires  the  instru- 
given  in  evidence  to  be  identified  by  the  judge,  leav- 
r  the  clerk  to  do  but  file  and  copy  them.^ 


A"R"R  \T  ^n\'  .^-  rn  ■■  c^Tri^- 


'VREML  LUURl  OF  ALABAMA.  -'I/. 

is  sold;  recoupment  of  o 

m:  was  commenced  ])er.,r.  ,.  the 

•:   Co.,  as  plaintiffs,  lein,  as 

"^  a  box  of  tobacco  ;,m..  k,  .  i  by  the 

Before  the  justice,  the  recov- 

,':;aiii-i  me  defendant,  an^;  '          '  the 

•red. 
.  6i  Mo.  282,  it  was  held  th- 


IO>5 


present  case  would  not  b* 
the  principal  which,  bv  la 

In  State  v.  Gerharcr 
Dunlap,  146  Ind.  350 
of  1895  there  was  ere. 
law  is  placed  in  tl.-  ' 
of  them  ?».?  thev  n 


that,  therefore,  a 

ing  and  afterw-'. 

Tb-'  rcifrul.''.: 


s  involved  an  act  of 

one  by  an  agent. 

-\.  313,  and  Massey  v. 

ocction  nine  of  the  act 

g'overnment  which  by  the 

e  exercised  by  a  majority 

rest  interest ;"  that  the  re- 

n/ast  be  against  a  particular 

the  liquor  traffic  generally; 

against  all  applications  pend- 

i.wo  years  is  unavailing. 

sale  of  intoxicating  liquors  is 

'    die  s'"        ''"hat  power,  as  an 

n  the  le  The  legislature 

\  er  to  ti  of  the  townships 

;s  comri  right  to  decide 

or  all  ,  ms.     He  may  be 

isie  that  ;esist  every  appli- 

:  trattic  and  conclude  to  thwart 

As  to  the  voter,  the  right  is 

..ated  right  cannot  lawfully  be 

'i      ■'••  to  that  end  from  the 

oter.  in  respect  to  the 

this  case  the 

rs'  names  to 

,:(i  see  lit.   The  decision 

,;.aj.. -a  in  power  by  the  num- 

The  names  signed  to  the  re- 

'orney   should   not  have  been 

onfer  upon  another  the  power 

-ted  to  their  judgment  and  dis- 

'  tiveness  of  an  instrument  by 

'Or  themselves  the  matter  of 

;■:•■  own  number 

[srepare,  sign 

.jistrument  the 

agreed  to  act  upon  the  ex- 

*ly  involved  in  this  appeal. 

sustain  the  motion  for  a 


4 


<w  or  one  ( 
proceed i 
and  bv   w 


fide; 
adn  ■ 
rep  r 
the  1  , 
authofii.'. 


:  fihiess  and  the  con- 
fer is  a  general  and 
people  whom  they 
!ve  government  that 
any  other  body  0; 
494- 


AUTHORITY.  169 

SEYMOUR  WOOLEN  FACTORY  COMPANY  v.  BROD- 

HECKER,   TREASURER. 

1891.     Supreme  Court  of  Indiana.     130  Ind.  389. 

Elliott,  C.  J. — ^  *  *  *  ^]^q  judge  cannot  delegate  to  the 
clerk,  to  the  stenographer,  or  to  any  one  else,  the  authority  to  put  a 
written  instrument  into  a  bill  of  exceptions.  He  may,  however, 
where  the  instrument  has  been  given  in  evidence,  and  is  clearly  iden- 
tified, cause  its  introduction  into  the  bill  by  a  strict  compliance  with 
the  statute.  Where  this  is  done  no  judicial  duty  is  delegated  to  the 
clerk,  for  all  that  is  required  of  him  is  to  register  the  decision  of  the 
judge  as  to  what  shall  go  into  the  bill  of  exceptions.  In  this  instance 
the  recitals  of  the  bill  of  exceptions  indicate  that  the  judge  delegated 
to  the  clerk  the  authority  to  take  from  a  record  in  the  auditor's  office 
an  order  and  insert  it  in  the  bill.  This  was  an  improper  delegation 
of  duty,  inasmuch  as  it  devolved  upon  the  clerk  the  duty  of  deter- 
mining what  part  of  the  record  should  go  into  the  bill,  as  well  as  the 
duty  of  determining  what  was  actually  in  evidence.  If  the  order  had 
been  entered  of  record  in  another  state,  or  in  another  county,  we 
think  no  one  would  doubt  that  the  judge  could  not  assign  to  the  clerk 
the  duty  of  bringing  it  into  the  record,  and  the  principle  must  be  the 
same  irrespective  of  the  question  of  the  locality  of  the  record.  The 
only  rule  that  can  be  safely  followed  is  that  which  requires  the  instru- 
ments actually  given  in  evidence  to  be  identified  by  the  judge,  leav- 
ing nothing  for  the  clerk  to  do  but  file  and  copy  them.- 


HARRALSON  &  CO.  v.  STEIN. 
1873.     Supreme  Court  of  Alabama.     50  Ala.  347. 

Action  for  price  of  goods  sold ;  recoupment  of  damages. 

Peters,  C.  J. — This  suit  was  commenced  before  a  justice  of  the 
peace,  by  Harralson  &  Co.,  as  plaintiffs,  against  A.  D.  Stein,  as 
defendant,  for  the  value  of  a  box  of  tobacco  sold  and  delivered  by  the 
plaintiffs  to  the  defendant.  Before  the  justice,  the  plaintiffs  recov- 
ered a  judgment  against  the  defendant,  and  from  this  judgment  the 

'  A  portion  of  the  opinion  is  omitted. 

*  In  Thomson  v.  City  of  Boonville,  61  Mo.  282,  it  was  held  that  authority  to 
pave  and  improve  the  streets  conferred  by  the  city's  charter  upon  the  mayor 
and  council  could  not  be  delegated  to  others.  To  same  effect  see  Jackson  Co. 
V.  Brush,  77  111.  59,  and  State  v.  Fiske,  9  R.  I.  94.  In  the  latter  case  Durfee,  J., 
said :  "The  rule  is  well  settled  that  discretionary  powers  which  are  granted 
to  one  person  or  body  cannot,  by  that  person  or  body,  without  leave,  be  dele- 
gated to  another." 


170  DELEGATION. 

defendant  appealed  to  the  circuit  court,  where  there  was  a  trial  de 
novo.  On  this  trial  there  was  evidence  tending  to  show  that  Stein 
went  to  the  plaintiffs,  to  purchase  a  lot  of  tobacco.  When  Stein  ar- 
rived at  plaintiff's  store,  he  met  one  of  the  plaintiffs,  and  informed 
him  of  his  purpose  to  buy  tobacco;  and  plaintiff  directed  his  clerk, 
Jordan,  to  "sell  to  Mr.  Stein  all  the  tobacco  you  can."  The  clerk 
then  sold  to  Stein  ten  boxes  of  tobacco  which,  except  one,  were  in 
the  United  States  bonded  warehouse,  and  one  was  in  the  store  of 
the  plaintiffs.  The  sale  was  completed,  except  the  payment  of  the 
money  and  the  delivery  of  the  tobacco.  Before  this  was  done,  one 
of  the  plaintiffs,  who  were  factors,  and  held  the  tobacco  for  sale  in 
their  character  as  commission  merchants  and  factors,  and  the  same 
partner  who  had  directed  the  clerk  to  make  the  sale,  returned,  and 
being  informed  that  the  price  at  which  the  tobacco  had  been  sold  was 
sixty  cents  a  pound,  when  the  instructions  of  his  principals  were  to 
sell  it  at  seventy  cents  a  pound,  he  refused  to  deliver  the  tobacco 
under  the  sale  by  the  clerk,  except  one  box,  which  was  in  the  store 
when  the  sale  occurred.  This  box  was  delivered,  and  carried  away 
by  Stein,  at  the  price  agreed  on  between  Stein  and  the  clerk.  The 
clerk  was  the  general  agent  of  the  factors,  authorized  by  them  to 
sell  any  goods  consigned  to  them,  intrusted  to  his  care.  This  sale  by 
the  clerk  was  made  on  the  i6th  day  of  February,  1872.  A  few  days 
after  this,  Stein  returned  to  the  store  of  Harralson  &  Co.,  asked  for 
his  bill,  and  proposed  to  pay  for  the  tobacco  sold  to  him  by  the 
clerk,  and  demanded  the  delivery  of  the  tobacco  under  the  sale  by 
the  clerk.  The  sale  was  then  repudiated  by  Harralson  &  Co.,  and 
they  refused  to  receive  pay  for  the  same,  and  to  deliver  it  to  Stein. 
The  weight  of  the  tobacco  in  all  the  boxes  was  shown  to  be  about 
six  hundred  pounds.  The  quantity  of  the  tobacco  in  the  box  which 
was  delivered  was  also  shown.  Stein  refused  to  pay  for  this ;  and 
Harralson  &  Co.,  in  their  own  name,  sued  to  recover  its  value ;  and 
Stein  pleaded,  in  recoupment  of  damages,  that  he  had  been  injured 
by  Harralson  &  Co.  by  their  failure  and  refusal  to  deliver  to  him 
the  tobacco,  which  they  had  sold  to  him  by  their  clerk,  to  a  greater 
amount  than  the  value  of  the  tobacco  which  had  been  delivered,  and 
for  which  the  present  suit  was  brought.  There  was  a  judgment  for 
Stein  in  the  court  below,  and  Harralson  &  Co.  appealed  to  this  court. 

There  were  two  questions  raised  on  the  trial  below,  which  were 
decided  adversely  to  the  appellants,  to  which  they  excepted,  and 
which  are  insisted  on  as  error  in  this  court.  The  one  was,  that  the 
appellants,  being  factors  and  commission  merchants,  could  not  make 
a  sale  of  the  goods  consigned  to  them  by  the  agency  of  their  clerk. 
The  other  was  as  to  the  measure  of  damages  when  insisted  on  by 
way  of  recoupment. 

I.  Upon  the  first  proposition  thus  presented,  it  is  contended  that 
the  appellants,  being  factors  and  commission  merchants,  were  merely 
the  agents  of  the  owner  of  the  tobacco,  and  could  not  sell  it  by  their 


I 


AUTHORITY.  I7I 

i  the  principle,  that  c.  being  a  dele- 

....  jt  be  executed  by  a  au..  ,.  >.  in', !-,  is  ex- 

.m.  Dele  gala  potestas  non  /><  But 

>  refer  to  those  agencies  "  '■  -  exe- 

er;  and  although  this  rru  s  and 

its  in  certain  cases,  yet  it  15  uci,  i 

Story  on  Agency,  §§  13,  14:  c 
ciple  is  only" invoked  when  t'-'  ^ 

.;  the  acts  of  the  sub-agent.   It  ..  n 

■  '.es  the  position  of  principal,  and  act  is  at- 

iforced  in  his  nar^"      ■  -    the  case  ui  .  

c  case  the  facto ;  imself  the  ] 

his  clerk,  w'  his  directic 

is  way  he  v  bound  by  h 

parties  >uch  relations  a-  ,' 

ien  repe:  •  by  this  court  ti. 

J  himself  by  a  .sale  of  the  decedent's  pe. 
•  oid  as  t'^  ^'^     ,  -r-.-:r. .  for  the  reason,  douL.  v 
■ermitte^i  t  he  has  deliberately  done 

Snedicor  v.  ivinoiey,  47  Ala.  507 ;  12  Ala.  298; 
e  sale  was  made  by' the  factor's  clerk,  by  their 
\re  seeking  to  enforce  it  in  part  by  this  suit.  If 
'1  this  way  they  submit  thus  to  be  bound.  The 
ise  with  the  vendee.  After  the  sale  is  completed, 
ontract  can  repudiate  it.  Such  is  the  case  here.^ 
•■'ent  of  the  court  below  is  affirmed.^ 

aion  13  omitted. 


r,   oi    whom   lie  k;: 

■  n  snch  cases  of  ?•. 


DELI' 


'ijit  appealed  to  thi 

■  >n  this  trial  thei 

''"  plaintiffs-   * 

intiff's  . 


plaintiti 


parnier 
being  v. 
sixty  C'. 
self  it  V 

UFifl'^r 

Avi- 


I  trial  de 

hat  Stein 

Stein  ar- 

'  informed 

his  clerk. 

The  clerk 

one,  were  in 

.)  the  store  of 

.yment  of  the 

'=;  done,  one 

lor  sale  in 

ju'l  the  same 

returned,  and 

n  sold  was 

is  were  to 

le  tobacco 

.  the  store 

;  iied  away 

lerk.    The 

'  them  to 

ale  by 

(iavs 


■e  by 

jnrl 


St 


I   !.'.'   uc  aouni. 

he  box  which 

for  this;  and 

^N  value ;  and 

n  injured 

•r  to  him 

a  greater 


adversely 
I.    insisted  • 

i:>eing  f.'u 
■e  goods  V  .- 
was  as  to  tl 

■  1. 

nn 

the  api 
the  ag 

..lus  court. 
hich  were 
oted,  and 
.,  that  the 
not  make 
'  ''■  clerk. 
on  by 

■ruled  th.'. 

'  •  ■  ; nerely 
.  V  their 


AUTHORITY.  I7I 

clerk.  This  is  said  upon  the  principle,  that  an  agency  being  a  dele- 
gated authority,  it  cannot  be  executed  by  a  sub-agent ;  which  is  ex- 
pressed in  the  maxim,  Delegata  potcstas  non  potest  delegari.  But 
this  maxim  seems  to  refer  to  those  agencies  which  involve  the  exe- 
cution of  a  bare  power ;  and  although  this  may  apply  to  factors  and 
commission  merchants  in  certain  cases,  yet  it  is  not,  as  to  them,  an 
universal  restriction.  Story  on  Agency,  §§  13,  14;  2  Kent,  p.  633, 
marg.  But  this  principle  is  only  invoked  when  the  attempt  is  made 
to  bind  the  owner  by  the  acts  of  the  sub-agent.  It  is  otherwise,  when 
the  factor  assumes  the  position  of  principal,  and  the  contract  is  at- 
tempted to  be  enforced  in  his  name,  as  is  the  case  in  the  present  suit. 
When  this  is  the  case  the  factor  makes  himself  the  principal  in  the 
transaction,  and  his  clerk,  who  acts  under  his  direction,  becomes  his 
agent;  and  in  this  way  he  consents  to  be  bound  by  the  law  which 
governs  the  acts  of  parties  who  sustain  such  relations  as  principal 
and  agent.  It  has  been  repeatedly  settled  by  this  court  that  an  ad- 
ministrator may  bind  himself  by  a  sale  of  the  decedent's  personal 
property,  which  is  void  as  to  the  estate ;  for  the  reason,  doubtless, 
that  he  will  not  be  permitted  to  undo  what  he  has  deliberately  done 
to  another's  injury.  Snedicor  v.  Mobley,  47  Ala.  507;  12  Ala.  298; 
5  Port.  64.  Here  the  sale  was  made  by  the  factor's  clerk,  by  their 
direction,  and  they,  are  seeking  to  enforce  it  in  part  by  this  suit.  If 
they  choose  to  act  in  this  way  they  submit  thus  to  be  bound.  The 
same  would  be  the  case  with  the  vendee.  After  the  sale  is  completed, 
neither  party  to  the  contract  can  repudiate  it.  Such  is  the  case  here.^ 
*     *     *     The  judgment  of  the  court  below  is  afifirmed.- 

^  A  portion  of  the  opinion  is  omitted. 

"  "The  principle,  that  an  agent  cannot  delegate  his  authority,  is  founded  upon 
the  special  trust  and  confidence  reposed  by  the  principal  in  the  personal  skill 
and  integrity  of  the  agent.  The  agent,  therefore,  has  no  authority  to  turn 
his  principal  over  to  another,  of  whom  he  knows  nothing,  but  remains  re- 
sponsible to  his  principal  in  all  such  cases  of  sub-agency.  But  it  by  no  means 
follows  that  third  persons,  who  deal  with  sub-agents,  knowing  the  agency, 
are  to  be  absolved  from  acts  or  contracts  made  by  such  agents  in  the  name 
of  the  principal.  We  have  just  seen  that,  while  the  original  agent  is  liable  to 
his  principal  for  the  acts  or  misconduct  of  sub-agents  employed  without  the 
authority  of  the  principal,  the  principal  is  liable  to  third  persons.  As  third 
persons,  therefore,  treat  with  the  sub-agent,  under  the  law,  as  with  one  having 
full  authority,  they  have  no  right,  as  against  such  principal,  to  set  up  that 
the  sub-agent  is  without  authority  to  act  for  the  benefit  of  the  principal." 
Harris,  J.,  in  Mayer  v.  McLure,  36  IMiss.  389,  403. 


172  DELEGATION. 

Section  2. — What  Authority  can  be  Delegated. 

McKINNON  AND  OTHERS  V.  VOLLMAR  and  another. 
1889.     Supreme  Court  of  Wisconsin.     75  Wis.  82. 

Lyon,  J.— ^  *  *  *  'pj^g  jyj.y  ^j^^  ^^^  f^^^  ^j^^^  Siebert  was  the 
agent  of  defendants  to  sell  their  land,  but  the  undisputed  evidence 
establishes  the  fact  that  he  was.  The  jury  found  that  Siebert  em- 
ployed Greeves  to  show  Derfus  the  land.  Was  Greeves  the  agent  of 
the  defendants?  The  answer  depends  upon  the  question  of  Siebert's 
authority  to  employ  a  sub-agent  for  that  purpose. 

The  rule  is  that  an  agent  in  whom  is  reposed  some  trust  or  con- 
fidence in  the  performance  of  his  agency,  or  who  is  required  to  exer- 
cise therein  discretion  or  judgment,  has  no  authority  to  intrust  the 
performance  of  those  duties  to  another,  and  thus  bind  the  principal 
for  the  acts  of  the  latter,  without  the  consent  of  his  principal.  Nu- 
merous cases  illustrating  this  rule  will  be  found  cited  in  i  Am.  & 
Eng.  Ency.  of  Law  368,  note  4.  On  the  other  hand,  an  agent  may 
appoint  a  sub-agent  to  do  acts  in  the  course  of  the  agency  which  do 
not  call  for  the  exercise  of  judgment  or  discretion,  but  which  are 
purely  executive  or  ministerial,  and  the  principal  is  bound  by  the 
acts  of  such  sub-agent.  Renwick  v.  Bancroft,  56  Iowa  527 ;  Lyon 
V.  Jerome,  26  Wend.  485  ;  37  Am.  Dec.  271 ;  Ewell's  Evans  on 
Agency  *43,  and  cases  there  cited. 

In  this  case  the  showing  of  the  land  to  Derfus  was  a  mere  execu- 
tive or  ministerial  act,  requiring  no  exercise  of  judgment  or  discre- 
tion, and  it  was  therefore  entirely  competent  for  Siebert  to  employ 
Greeves  to  perform  it.  It  may  be  observed  here  that  the  defendants 
knew  that  Greeves  had  been  selected  by  Siebert  to  show  Derfus  the 
land,  and  made  no  objection  thereto.  Indeed,  it  seemed  to  be  a  very 
proper  appointment,  for  Greeves  had  been  upon  the  land,  and  esti- 
mated the  timber  thereon,  and  of  course  knew  the  location  thereof, 
while  it  does  not  appear  that  Siebert  ever  saw  the  land.  For  the 
above  reasons  it  must  be  held  that  Greeves  was  the  agent  of  the 
defendants  for  the  purpose  of  showing  the  lands  to  Derfus,  and  the 
defendants  are  responsible  for  the  manner  in  which  he  performed 
the  duties  of  such  agency. 

Greeves  did  not  in  person  point  out  the  land  to  Derfus,  but  he  did 
so  just  as  effectually  as  though  he  had  gone  upon  the  land  in  per- 
son and  told  Derfus  that  it  was  the  defendant's  land,  for  the  pur- 
chase of  which  he  was  negotiating.  He  told  Kirwin  what  particular 
tract  of  land  he  was  to  show  Derfus,  and  Kirwin  showed  him  such 
tract  as  he  was  directed  to  do.  Thus  Kirwin  was  the  mere  instrument 
of  Greeves,  and  his  act  in  thus  pointing  out  the  land  was,  in  sub- 

^A  portion  of  the  opinion  is  omitted. 


AUTHC«ITV. 

^  -Q-orit  of  the  defend- 
no  question  in  the  :  r  Kir  win 
..c  agent  of  the  defenda... .  'id.    Liter- 
orders  of  Greeves,  as  he  did,  "e  the  acts 
agent  who,  because  of  the  trr.- :.  :  ^  :r?e  re- 
his  principal,  cannot  bind  his  pv  >■■■  acts 
employ  another  to  <' 
:y,  and  if  such  other  > 
-  1.      0,  not  because  the  person  pei  . 

-r  \hf  ?.-!  ■-.  i'^c  net  of  his  age:..  ....                    i 

j.n'i,i  Mil-  i'jic^.'M;.,   >.  .cvvs  that  thc  Hr*--"-'-- 
;Ct  of  their  agent  in  thus  showing  Deri 

Through  the  instrumentahty  oi  ivuv.  .1  . 


i  FRCIAL  BANK  OF  LAKE  ERIE  v.  NORTON. 
v-LuiTArn-  r.-.j-^n-  .,r.  New  York.     I  Hill  501 

iiod  at  thc  nit,   before   '' 

The  plaint  't  to  recover 

:>  drawn  by  .  Joice  &  Co.,  on  E.  iNorton  & 

■^u'l'-.'^u-  ,v  '  ■   ;ii  ^'v!  >   r^;l^•^  n'fter  date.   Tht" 

•11  and  Simec 

ptance  on  each  of  the  bills  was  in  this  form :   "E.  Norton 
-V.  G.  Cochrane," 


.  the  latter  being  then  largely  md 
a  testified  on  the  trial  that  he  dir. 


;f    ,,n    1r-    ihr-.    m  1  >.  i ,11    'FlrlrT',' 


zt  to  oe 
.  jto  do  it 
perfonri  ..a  by  the  r 

TV  70 


MciviNNO-  V'ULLA  ^>THER. 

1889.  ?2. 

Lyon,  ].-r-  :hat  Siebert  was  the 

■:::'""     '•  '"'   "^        _  'in disputed  evidence 

iad  that  Siebert  em- 

'■'^ves  the  agent  of 

tion  of  Siebert's 

\e  trust  or  con- 

oquired  to  exer- 

•  •.ity  to  intrust  the 

:s  bind  the  principal 

i  his  principal.    Nu- 

I  cited  in  i  Am.  & 

1.  an  agent  may 

'gency  which  do 

lion,  but  which  are 

.,   ....  ^i..:.ip^l  is  bound  by  the 

V.  Bancroft,  56  Iowa  527;  Lyon 

•     \'   -     — '  •   ^-^.yell's  EvanK  c- 

^  was  a  mere  execu 
"  judginent  or  discre- 
.petent  for  vSiebert  to  employ 
ved  here  that  the  defendants 
Siebert  to  show  Derfus  the 
'ndeed,^  it  seemed  to  be  a  very 
oeen  upon  the  land,  and  esti- 
>e  knew  the  location  thereof, 
ever  <?3w  the  land.    Fof  the 
■i^ent  of  ''• 
■fus,  and  1 
•     .    which  he  performed 

lie  land  to  Derfus,  but  he  did 

r'on  the  land  in  p^^'" 

s  land,  for  the  p 

.  i-irwin  what  partict;' 

kirwin  showed  him  s: 

iracL  as  i  was  the  mere  instrun; 

of  Gree\-.  .  '<'.  tlie  land  was,  in  ?. 


AUTHORITY.  I73 

Stance  and  legal  effect,  the  act  of  Greeves,  the  agent  of  the  defend- 
ants. Hence  there  is  no  question  in  the  case  as  to  whether  Kirvvin 
was  or  was  not  the  agent  of  the  defendants  in  what  he  did.  Liter- 
ally obeying  the  orders  of  Greeves,  as  he  did,  his  acts  were  the  acts 
of  Greeves.  An  agent  who,  because  of  the  trust  and  confidence  re- 
posed in  him  by  his  principal,  cannot  bind  his  principal  by  the  acts 
of  a  sub-agent  may  still  employ  another  to  do  some  specific  act  in 
the  business  of  his  agency,  and  if  such  other  do  that  act  as  directed, 
the  principal  is  liable,  not  because  the  person  performing  the  act  is 
his  agent,  but  because  the  act  is  the  act  of  his  agent  who  directed  it 
to  be  done. 

It  follows  from  the  foregoing  views  that  the  defendants  are  lia- 
ble for  the  act  of  their  agent  in  thus  showing  Derfus  the  wrong  land, 
although  he  did  so  through  the  instrumentality  of  Kirwin.^ 


COMMERCIAL  BANK  OF  LAKE  ERIE  v.  NORTON. 
1841.     Supreme  Court  of  New  York,     i  Hill  501. 

Assumpsit,  tried  at  the  Erie  circuit,  before  Gridley,  C.  Judge, 
August  29,  1840.  The  plaintiffs  sought  to  recover  as  endorsees  of  two 
bills  of  exchange  drawn  by  Gillespie,  Joice  &  Co.,  on  E.  Norton  & 
Co.,  payable  to  Gillispie  &  Woodruff,  at  sixty  days  after  date.  The 
firm  of  E.  Norton  &  Co.  was  composed  of  said  Norton  and  Simeon 
Fox,  two  of  the  defendants,  who  alone  defended  the  suit. 

The  acceptance  on  each  of  the  bills  was  in  this  form :  "E.  Norton 
&  Co.   Per  A.  G.  Cochrane,"  and  was  in  Cochrane's  handwriting. 

The  bills  were  discounted  on  the  day  of  the  date,  by  the  plaintiffs 
for  the  drawers,  and  were  afterwards  accepted  for  the  drawers'  ac- 
commodation ;  the  defendants  Norton  and  Fox  having  no  funds  of 
the  drawers,  but  the  latter  being  then  largely  indebted  to  them. 

Henry  Norton  testified  on  the  trial  that  he  directed  Cochrane  to 

""It  may,  indeed,  be  true  that  under  the  maxim  'Delegala  potestas  non  potest 
delegari,'  an  agent  or  broker  whose  employment  involves  any  exercise  of  judg- 
ment or  discretion  may  not  transfer  to  another  the  right  and  power  to  dis- 
charge his  own  duty.  Nevertheless,  when  an  act  to  be  done  is  ministerial  or 
mechanical  only,  the  agent  may  employ  another  to  do  it ;  and  in  such  case  the 
act  is  as  well  performed  by  the  sub-agent  as  by  the  agent."  Green,  J.,  in  Ryer 
V.  Turkel  (N.  J.),  70  Atl.  68,  71-  .        . 

"An  insurance  agent  can  authorize  his  clerk  to  contract  for  risks,  to  deliver 
policies,  to  collect  premiums,  and  to  take  payment  of  premiums  in  cash  or 
securities,  and  to  give  credit  for  premiums,  or  to  demand  cash ;  and  the  act  of 
the  clerk  in  all  such  cases  is  the  act  of  the  agent,  and  binds  the  company  just 
as  effectually  as  if  it  were  done  by  the  agent  in  person."  Earl,  C,  in  Bodine 
V.  Exchange  Fire  Ins.  Co.,  51  N.  Y.  117,  123.  To  same  effect  see  German  Fire 
Ins.  Co.  V.  Columbia,  etc.,  Co.,  15  Ind.  App.  623. 


174  DELEGATION. 

accept  these  bills,  the  latter  being  the  bookkeeper  of  E.  Norton  & 
Co.  As  to  Henry's  own  authority,  he  testified  that  he  was  the  gen- 
eral agent  of  E.  Norton  &  Co.,  financial  and  otherwise,  they  not  in- 
terfering in  the  business  but  being  engaged  mostly  elsewhere ;  that, 
with  their  knowledge  and  assent,  he  had  been  in  the  habit  of  drawing 
drafts,  making  notes  and  endorsements  for  them ;  though,  by  the 
written  articles  of  co-partnership  between  E.  Norton  and  Fox,  his 
(the  witness,)  power  was  more  limited. 

The  defendants'  counsel  moved  for  a  nonsuit  upon  the  ground 
that  the  acceptances  were  made  without  authority ;  but  the  circuit 
judge  denied  the  motion,  and  the  defendants'  counsel  excepted.  He 
further  insisted  at  the  trial  that  the  acceptances  were  without  con- 
sideration and  therefore  void.  The  circuit  judge  ruled  the  contrary; 
whereupon  the  said  counsel  again  excepted.  Verdict  for  the  plain- 
tiffs. The  defendants  now  moved  for  a  new  trial  on  a  bill  of  ex- 
ceptions. 

CowEN,  J. — (After  deciding  that  there  was  sufficient  evidence 
to  go  to  the  jury  on  the  question  whether  Henry  Norton  had  au- 
thority to  accept.)  But  it  is  said  he  could  not  delegate  the  power 
to  accept.  This  is  not  denied,  nor  did  he  do  so.  The  bills  came  for 
acceptance ;  and  having  as  agent  made  up  his  mind  that  they  should 
be  accepted,  he  directed  Cochrane,  the  bookkeeper,  to  do  the  me- 
chanical part — write  the  acceptance  across  the  bills.  He  was  the  mere 
amanuensis.  Had  anything  like  the  trust  which  is  in  its  nature  per- 
sonal to  an  agent,  a  discretion  for  instance,  to  accept  what  bills  he 
pleased,  been  confided  to  Cochrane,  his  act  would  have  been  void. 
But  to  question  it  here  would  be  to  deny  that  the  general  agent  of 
a  mercantile  firm  could  retain  a  carpenter  to  make  a  box  or  a  cooper 
to  make  a  cask.  The  books  go  on  the  question  whether  the  delega- 
tion be  of  a  discretion.  Such  is  the  very  latest  case  cited  by  the 
defendants'  counsel;  Emerson  v.  Prov.  Hat  Mfg.  Co.,  12  Mass.  237, 
241,  242,  and  the  latest  book.  2  Kent  Com.,  633,  4th  ed.  Blore  v. 
Sutton,  3  Meriv.  237,  is  among  the  strictest  cases  I  have  seen.  There 
the  clerk  of  the  agent  put  his  Own  initials  to  the  memorandum,  by 
direction  of  the  agent ;  and  held  insufficient.  Henderson  v.  Barne- 
wall,  I  Young  &  J.  387,  followed  it.  Both  were  cases  arising  under 
the  statute  of  frauds,  which  requires  that  the  memorandum  should 
be  signed  by  the  principal  or  his  agent ;  and  I  admit  it  is  very  diffi- 
cult to  distinguish  the  manner  of  the  signatures  there  from  that 
now  in  question  by  Cochrane.  Everything  there  seems  to  have  been 
mechanical  merely,  as  here ;  and  there  may  be  some  doubt,  I  should 
think,  whether  such  cases  can  be  sustained.  At  any  rate  in  our  at- 
tempt to  apply  them,  we  are  met  with  a  case  as  widely  the  other  way. 
Ex  parte  Sutton,  2  Cox  84.  The  rule  as  there  laid  down  is  that  "an 
authority  given  to  A  to  draw  bills  in  the  name  of  B  may  be  exercised 
by  the  clerks  of  A."  Such  is  the  marginal  note,  and  it  is  entirely 
borne  out  by  the  case  itself.  Peter  Marshall  wrote  to  Lewis  &  Potter 


"(horizing  them  "to  make  use  of  his  nan  lion  or  other- 

^^  r^e  to  draw  bills  on  G.  ]&  J."   The  clerk  oi  ter  drew 

t'.c  bill,  signirii^  thus:    "By  procuration  of  1  il,  Robert 

I    liTecumbe."    The  Lord  Chancellor  put  it  C'^  i  that  the 

-i^iiature  of  tlie  clerk  would  have  bound  Lc  .     v>  'jad  he 

•<iied  their  name  under  the  general  authority  whici  We 

thus  make  very  little  progress  one  way, or  the  '  '■ 

authority.    Left  to  go  on  the  principle  of  an\ 
have  seen   and  there  are  many,  all  we  have  to  say  \ 
agent  sbaii  not  delegate  his  discretion;  but  may  ^ 
chanical  act  by  deputy.    I  do  not  know  that  the  '  ■ 

EUenboroiigh  in  Mason  v.  Joseph,  i  Smith  406,  Ij.     ■  ■ 

directly  carried  into  an  adjudication.    But  it  sounds  so 
the  c  ••:  ■  1  r-tVssing  to  go  on  principle,  that  I  can  scar..... 
l>ei:.c  '  Lordship  said:   'Tt  is  true  an  attorney  api 

:  his  authority  to  a  third  person.   He  ; 
ri  ent  on  the  principal  subject  for  the  ■ 

v\:  d;  but  as  to  any  mere  ministerial  act,  it  is  uoi 

::ould  do  it  in  person,  if  he  direct  it  to  be  done 
knowledge  of  it  adopt  it.    Suppose,  for  instance,  he 
'-..  1  in  his  hands,  and  could  not  actually  sign  himself, 

li-  ithorized  another  to  sign  for  him.^     *     *     *2 

?\'  \   ■     ;.  denied. 


opctiH';  0      rower  to  Delegate  Impucu  jioin  Circumstances. 

PRES:  DIRECTORS  AND  COMPANY  OF  THE 

■JN  BA'K'^'  '■   ~\f'  '"TT  \  T>  ix^^  .xT,^  r-.TT, ■,-,..- 

.c.ME  Judicial  Court  gi^  xMASSACHUsiiixs. 

1  tract  to  recover  $370.42,  received  by  the  defendants 
use. 

elow  Bigelow,  J.,  the  plaintiffs,  to  prove  their  case, 

,  who  testified  that  he  had  been  an  f  11  be- 

id  Lowell  for  eleven  years,  and  that  vhole 

ometinK'                               "1  7,  185  d  for 

the   de-                       ,        lership  ,3   in 

■  s  of  J.  C.  Hildreth  &  Co.,  a  part^i  busi- 

.^,  ..V....,  for  $370.42  each,  t'h'^  ■'"•:•  '^•■■'■^  '■  ■  '  ■■'•- 

:;--,;  .,f  ih/--    .     -■   ■         .-mitted. 

Ins.  Co.,  60  Mo.  116. 

7=;  X.  Y.  e.i7.  it  was  ?:iid  Da;  t'u    ^^:^:■  •-...- 


t;-4 

bills,  the  orton  & 

■^  ilenn '  •  ..a  ii':  \va?  the  gen- 

;t  of  E.  itierwise,  they  not  in- 

in  the  1  '=itly  elsewhere;  that, 

knowl-  '  the  habit  of  drawing 

lakinfT  '  t  them;  though,  by  the 

Ktl.-I^.;  i'"     N'nrifin    and    Fox,   his 

a  iionsnic  lijum  the  ground 

ut  authority ;  but  the  circuit 

u  ;  ;ts'  counsel  excepted.   He 

:  ,,  r  !'  ances  were  without  con- 

•;..  ;  circuit  judge  ruled  the  contrary; 

v.v. :,   :  :  .  •.^r^'t^<■^•     Verdict  for  the  plain- 

;;ijfs  rial  on  a  bill  of  ex- 

Ci  riat  ther  flkient  evidence 

whether  iicury  Norton  had  au- 

he  could  not  delegate  the  power 

to  :•  did  he  do  so.   The  bills  came  for 

acci  ^ade  up  his  mind  that  they  should 

be  u  -,  the  bookkeeper,  to  do  the  me- 

across  the  bills.  He  was  the  mere 
•  trust  which  is  in  its  nature  per- 
;•  instance,  to  accept  what  bills  he 
'.e,  his  act  would  have  been  void 
TO  deny  that  the  general  agent  of 
rpenter  to  make  a  box  or  a  cooper 
1  the  question  whether  the  delega- 
ihe  very  latest  case  cited  by  the 
:  rov.  Hat  Mig.  Co.,  12  Mass.  237 
J  Cent  Com.,  633,  4th  ed.    Blore  v. 
strictest  cases  I  have  seen.  There 
'•■;';'      '     '1.    memorandum,  by 
.  ■  I.     .    I  .iivlerson  v.  Barnc- 
it.    Both  were  cases  arising  under 
'  es  that  the  memorandum  should 
'i^ent;  and  I  admit  it  is  very  diffi- 
f  the  sir;-""'         there  from  that 
rything  ms  to  have  beett 

may  oj  some  doubt,  I  shci!  ' 
lined.    At  any  rate  in  our  . 
.  case  as  widely  the  other  w 
•      ^  as  there  laid  down  is  that 

authorit  n  the  name  of  B  may  be  exerci 

by  ihf'  T'lirginal  note,  and  it  is  entiv 

bor-.v  shall  wrote  to  Lewis  &  Pc 


POWER    IMPLIED    FROM    CIRCUMSTANCES.  175 

authorizing  them  "to  make  use  of  his  name  by  procuration  or  other- 
wise to  draw  bills  on  G.  |&  J."  The  clerk  of  Lewis  &  Potter  drew 
the  bill,  signing  thus :  "By  procuration  of  Peter  Marshall,  Robert 
Edgecumbe."  The  Lord  Chancellor  put  it  on  the  ground  that  the 
signature  of  the  clerk  would  have  bound  Lewis  &  Potter,  had  he 
signed  their  name  under  the  general  authority  which  he  had.  We 
thus  make  very  little  progress  one  way  or  the  other  on  direct  English 
authority.  Left  to  go  on  the  principle  of  any  other  English  case  I 
have  seen,  and  there  are  many,  all  we  have  to  say  is,  I  think,  that  the 
agent  shall  not  delegate  his  discretion ;  but  may  at  least  do  any  me- 
chanical act  by  deputy.  I  do  not  know  that  the  language  of  Lord 
Ellenborough  in  Mason  v.  Joseph,  i  Smith  406,  has  been  anywhere 
directly  carried  into  an  adjudication.  But  it  sounds  so  much  like  all 
the  cases  professing  to  go  on  principle,  that  I  can  scarcely  doubt  its 
being  law.  His  Lordship  said :  "It  is  true  an  attorney  appointed  by 
deed  cannot  delegate  his  authority  to  a  third  person.  He  must  exer- 
cise his  own  judgment  on  the  principal  subject  for  the  purpose  of 
which  he  is  appointed ;  but  as  to  any  mere  ministerial  act,  it  is  not 
necessary  that  he  should  do  it  in  person,  if  he  direct  it  to  be  done 
or  upon  a  full  knowledge  of  it  adopt  it.  Suppose,  for  instance,  he 
had  got  the  gout  in  his  hands,  and  could  not  actually  sign  himself, 
he  might  have  authorized  another  to  sign  for  him.^  *  *  *  2 
New  trial  denied. 


Section  3. — Power  to  Delegate  Implied  from  Circumstances. 

PRESIDENT,  DIRECTORS  AND  COMPANY  OF  THE  AP- 

PLETON  BANK  v.  McGILVRAY  and  others. 

1855.     Supreme  Judicial  Court  of  Massachusetts.     4  Gray  518. 

Action  of  contract  to  recover  $370.42,  received  by  the  defendants 
to  the  plaintiffs'  use. 

At  the  trial  below  Bigelow,  J.,  the  plaintiffs,  to  prove  their  case, 
called  a  witness,  who  testified  that  he  had  been  an  expressman  be- 
tween Boston  and  Lowell  for  eleven  years,  and  that  was  his  whole 
business ;  that  sometime  previous  to  April  7,  1854,  he  received  for 
collection  from  the  defendants,  a  partnership  doing  business  in 
Boston,  two  notes  of  J.  C.  Hildreth  &  Co.,  a  partnership  doing  busi- 
ness in  Lowell,  for  $370.42  each,  the  one  due  on  the  7th  and  the 

*  A  portion  of  the  opinion  is  omitted. 

'See  Grady  v.  American  Cent.  Ins.  Co.,  60  Mo.  116. 

In  People  v.  Bank  of  America,  75  N.  Y.  547,  it  was  said  that  the  state  treas- 
urer could  delegate  to  his  clerk  authority  to  endorse  drafts  drawn  to  the  treas- 
urer's order  in  payment  of  taxes. 


176  DELEGATION. 

Other  on  the  13th  of  April,  and  both  payable  to  the  defendants,  and 
endorsed  in  blank  by  them ;  and  was  directed  to  collect  them  in  the 
ordinary  way,  without  any  directions  as  to  protesting  them,  and  gave 
his  receipt  therefor ;  that  it  was  sometimes  his  custom  to  collect  notes 
by  depositing  them  in  a  bank,  and  sometimes  by  calling  on  the  par- 
ties personally,  though  he  did  not  communicate  to  the  defendants 
how  he  was  going  to  collect  their  notes,  and  did  not  know  that  they 
knew  he  ever  collected  notes  delivered  him  through  the  banks ;  that 
before  the  7th  of  April  he  deposited  the  notes  with  the  plaintiffs,  a 
bank  in  Lowell,  for  collection ;  that  on  the  8th  of  April  he  called  on 
the  plaintiffs,  and  asked  if  the  note  due  the  day  before  had  been  paid, 
and  was  informed  by  a  clerk  of  the  plaintiffs  that  it  had  been,  and 
received  the  amount  of  it  from  the  plaintiffs  ;  that  the  plaintiffs  re- 
ceived no  compensation  for  collecting  these  notes,  and  he  did  not 
communicate  to  the  plaintiffs,  when  he  left  the  notes,  to  whom  they 
belonged;  that  he  took  the  money  so  paid  and  the  same  day  paid 
it  to  the  defendants,  but  did  not  remember  telling  the  defendants 
when  he  paid  them  the  money,  that  he  collected  it  through  the  plain- 
tiffs or  any  bank ;  and  the  defendants  paid  him  for  his  services. 

BiGELOW,  J. — The  objection  that  this  action  cannot  be  maintained 
for  want  of  privity  between  the  parties  to  the  suit  is  not  sustained  by 
the  proof.  The  rule  of  law  is  well  settled  that  in  the  absence  of  any 
authority,  either  express  or  implied,  to  employ  a  sub-agent,  the  trust 
committed  to  an  agent  is  exclusively  personal,  and  cannot  be  dele- 
gated by  him  to  another  so  as  to  affect  the  rights  of  the  principal. 
In  such  case,  if  the  agent  employs  a  substitute,  he  does  it  at  his 
own  risk  and  upon  his  own  responsibility.  The  agent  only  is  liable 
to  the  principal,  and  the  sub-agent  is  responsible  solely  to  his  imme- 
diate employer ;  nor  can  the  principal  be  liable  for  the  acts  of  the 
sub-agent.  There  is  no  privity  between  them  upon  which  any  mutual 
rights  and  remedies  can  be  based. 

But  this  general  rule  is  always  subject  to  be  modified  by  the 
peculiar  circumstances  of  each  particular  case,  from  which,  or  from 
the  usage  of  trade,  a  power  to  delegate  an  authority  can  be  inferred. 
Story  on  Agency,  §§  14,  388. 

In  the  case  at  bar  it  appears  that  the  defendants  delivered  the  note 
for  collection  to  the  carrier  with  directions  "to  collect  it  in  the  ordi- 
nary way,"  and  that  it  was  his  custom  to  collect  notes  by  depositing 
them  in  a  bank,  as  well  as  by  calling  on  the  parties  personally.  The 
directions  given  by  the  defendants  were  equivalent  to  an  authority 
to  adopt  either  of  the  modes  for  collecting  the  note  which  the  car- 
rier was  in  the  habit  of  using,  and  well  warranted  the  jury  in  finding 
that  the  plaintiffs  were  duly  employed  as  the  agents  of  the  defend- 
ants in  this  particular  transaction.  We  cannot  doubt  that  if  the  car- 
rier had  died  or  become  insolvent  before  payment  to  him  of  the 
amount  collected  by  the  plaintiffs,  the  defendants,  upon  disclosure 
of  the  agency,  would  have  had  a  good  claim  therefor  against  the 


,f;p'. 


'/     VclVli 


]  by  the  authority  to  en:  ,  which  is 

rred  from  the  evidence/^ 
the  verdict. 


IN;  ■  OF 


KEME  j  UDICIAL  (. 


.:r  cause  which  the 

-lier  an  e^.<.iL  ■■■  ■  ■>  -'^d 


and  of  which  he 


^e 


-idants  snould  recover  against  the  piauitiif  s 
-  ',:t,!  tVie  costs  of  court. 

eptance  of  this  report,  alleg^ing  that 

•ir  will.    Tt  .-i 


ihis  court  to  CO!'  cute  the  act 

n  behalf  of  the  p ...  :.,.,•  of  siil.v,;:;" 

ey  also  objected  that  the  report  wa.^  ;n 

'  "o  opinio '.   nent  or  deterriiin  le 

;;  that  't  conclusive  up 

town,  appoin*r''  fn  -prr- 

!Ct  the  suit,  \ 

:ig  their  tru.>  .■,..%e 

-e  in  contormity  thereto,  is  >  a  full 


170 

>  the  defendants,  and 

Jlect  them  in  ''  • 

'T,  them,  and  v:,;  . 

•  collect  note;. 

V,  oil  the  par- 

nicate  to  tiie  defend     ' 

;d  did  not  know  that  t;  _ 

:  through  the  banks ;  that 

iu  iiotes  with  the  plaintiffs,  r. 

the  8th  of  April  he  called  on 

'  re  had  been  paid, 

it  had  been,  and 

the  plaintiffs  re- 

,  and  he  did  no^ 

's.  to  whom  they 

M  same  day  paiil 

)t  1  '^  the  defendant; 

'trough  the  plain 
lis  services- 
lOt  be  n^ 
.  not  sus 
■n  the  absence  of  any 
'  -'lb-agent,  the  trust 
'  cannot  be  dele 
.   i;l:...>  of  the  principal, 
stitute.  he  does  it  at  hi^ 
only  is  liable 
to  his  imme- 
In-.  ujLOit  iuf  ilie  acts  O'' 
'Au-iv  ]v.v'^n  \vhi':'h  any  ni' 

,!.,..-^L   nj   -^-   i).^.dified  by   >.i:- 

;lar  case,  from  which,  or  fron^ 

.   Authority  can  be  inferred. 

;  red  the      ' 

'i  in  the  '  . 
•t,es  by  depo> 

i.^rvni-i'illy.      ^... 

(UthoritA 

-ncil  the  •"•, 
•u'y  in  fir 
i"  the  dejv 
.        iatifthe.     • 
L    to   hi 
upon  ". 
;efor  against" the 


POWER    IMPLIED    FROM    CIRCUMSTANCES.  177 

plaintiffs.    The  privity  necessary  to  make  the  parties  hable  to  each 
other  is  created  by  the  authority  to  employ  a  sub-agent,  which  is 
fairly  to  be  inferred  from  the  evidence.^     *     *     >i<  2 
Judgment  on  the  verdict. 


INHABITANTS  OF  BUCKLAND  v.  INHABITANTS  OF 

CONWAY. 

1820.    Supreme  Judicial  Court  of  Massachusetts.     i6  Mass.  396. 

This  was  a  pauper  cause  pending  in  Franklin  county,  in  which  the 
question  was  whether  an  estate  in  Conway,  which  had  been  owned 
by  the  pauper,  and  of  which  he  had  taken  the  rents  and  profits  three 
years  successively,  was  of  the  clear  yearly  income  of  three  pounds ; 
so  that  he  had  thereby  acquired  a  settlement  in  Conway. 

The  action  was,  at  the  May  term,  18 19,  submitted  by  rule  of  court 
to  certain  referees,  who  made  their  report  at  the  last  May  term  in 
Franklin,  that  the  defendants  should  recover  against  the  plaintiffs 
the  costs  of  the  reference  and  the  costs  of  court. 

The  plaintiffs  opposed  the  acceptance  of  this  report,  alleging  that 
the  submission  had  been  entered  into  without  authority  from  them, 
and  against  their  will.  It  appeared  that  the  town  had  appointed 
agents  to  prosecute  the  action,  without  any  particular  instructions  as 
to  the  conduct  of  it ;  and  that  the  agents  thus  appointed  had  employed 
an  attorney  of  this  court  to  commence  and  prosecute  the  action,  by 
whose  assent  on  behalf  of  the  plaintiffs  the  rule  of  submission  had 
been  made.  They  also  objected  that  the  report  was  insufficient,  in 
that  it  contained  no  opinion,  judgment  or  determination  upon  the 
merits  of  the  cause;  that  it  was  not  conclusive  upon  the  subject- 
matter,  nor  final  between  the  parties. 

Parker,  C.  J. — The  agents  of  a  town,  appointed  to  prosecute  a 
suit,  have  general  authority  to  conduct  the  suit,  unless  restricted  by 
the  town  as  to  the  manner  of  executing  their  trust.  A  vote  to  choose 
agents,  and  a  choice  in  conformity  thereto,  is  equivalent  to  a  full 
power  of  attorney.  Agents  thus  appointed  have  the  power  of  sub- 
stitution or  delegation,  so  far  as  to  appoint  attorneys  and  employ 
counsel ;  who,  when  they  have  become  such  of  record,  have  the  same 
power,  in  relation  to  anything  to  be  done  in  the  progress  of  the 
suit,  as  the  agents  themselves.  An  authority  to  prosecute  or  defend 
a  suit  implies  a  power  to  refer  it  by  rule  of  court,  that  being  a  legal 
mode  of  prosecuting  or  defending. 

As  to  the  validity  of  the  report  in  reference  to  the  objection  that 

^  A  portion  of  the  opinion  is  omitted. 
*  See  Lx)omis  v.  Simpson,  13  Iowa  532,  535. 
12 — Reinhard  Cases. 


178  DELEGATION. 

it  does  not  adjudicate  upon  the  subject-matter  submitted  to  the 
referees,  we  think  it  sufficient,  because,  by  necessary  impHcation,  it 
must  be  considered  as  a  determination  upon  the  question.  They  award 
that  the  defendant  town  shall  recover  the  costs  of  the  action.  This 
they  could  not  have  done  without  having  decided  the  point  in  contro- 
versy in  their  favor ;  at  least,  the  legal  presumption  is,  that  they  so 
determined.  The  judgment  of  the  court  will  be,  that  the  plaintiffs 
take  nothing  by  their  writ,  and  that  the  defendants  recover  their 
costs :  and  this  makes  a  final  determination  of  the  action,  which  is 
what  was  submitted  to  the  referees.^ 


DORCHESTER  BANK  v.  NEW  ENGLAND  BANK. 
1848.     Supreme  Judicial  Court  of  Massachusetts,      i  Cush.  177. 

Wilde,  J- — This  is  an  action  of  assumpsit;  but  the  foundation  of 
the  plaintiff's  claim  is  the  alleged  negligence  of  the  defendants,  in 
not  collecting  certain  bills  left  with  them  for  collection  by  the 
plaintiffs. 

The  defendants  proved  that  they  placed  these  bills  in  the  hands 
of  the  Commonwealth  Bank  for  collection,  the  same  being  payable 
in  the  city  of  Washington,  where  the  defendants  had  no  correspond- 
ents. This,  the  plaintiff's  counsel  contend,  the  defendants  had  no 
right  to  do,  on  the  ground  that  an  agent  has  no  right  to  delegate 
his  authority  to  a  sub-agent  without  the  assent  of  his  principal.  This, 
no  doubt,  is  generally  true ;  but  when,  from  the  nature  of  the  agency, 
a  sub-agent  or  sub-agents  must  necessarily  be  employed,  the  assent 
of  the  principal  is  implied.  Such  was  the  nature  of  the  agency  in 
the  present  case.  It  could  not  have  been  expected  that  the  defend- 
ants would  employ  one  of  their  own  officers  to  proceed  to  Washing- 
ton to  obtain  payment  of  the  bills.  The  bills  undoubtedly  were  in- 
tended to  be  transmitted  to  Washington  for  collection,  and  if  the 
defendants  employed  suitable  sub-agents  for  that  purpose,  in  good 

^  See  Page  v.  Hardin,  47  Ky.  648,  regarding  tlie  power  of  the  Secretary  of 
State  of  Kentucky  to  appoint  a  deputy.  On  page  662  Marshall,  C.  J.,  said : 
"Indeed,  by  the  common  law,  a  ministerial  officer  might,  generally,  appoint  a 
deputy,  whose  acts  in  his  name  were  valid.  It  may  easily  be  supposed  that 
from  the  increased  business  of  the  office  of  Secretary,  arising  from  various 
causes,  the  assistance  of  a  deputy  might  become  indispensable,  and  that  even 
if  the  business  did  not  regularly  require  it,  there  might  be  various  casualties, 
which  would  render  it  necessary  for  the  convenience  of  the  public  that  the 
official  duties  of  the  Secretary  should  be  occasionally  performed  by  another 
for  him." 

"An  under  sheriff  may  appoint  a  bailiff  for  the  purpose  of  doing  a  particu- 
lar act;  though  he  cannot  appoint  a  deputy  to  do  the  general  business  of  the 
office."    Starnes,  J.,  in  McGuffie  v.  State,  17  Ga.  497,  508. 


;iiD   FRO.N 


179 


f  'hf  sub- agents. 

■,  Pick.  330. 

ays :   "It  is 

collection, 

■■'  \<  so  re- 


-mt  the 

\nd 

ror 

it 


pnncipje. 


...  .1:,  j.^  ior  the  neglect  . . 
lecided  in  Fabens  v.  Mercair, 
■.>Lice,  in  delivering  the  opinion  ol  h 
i  that  when  a  note  is  deposited  with  a 
.arable  at  another  place,  the  whole  diu 
e  note,  in  the  first  instance,  is  sea^f^n 
;ble  bank  or  other  agent  at  th- 
:e  same  doctrine,  it  is  well  sei 
T  promisor  of  a  note  has  his  residence  in 
^•resunled  to  have  been  intended  and  '" 
r  tor  for  collection  and  the  bank  that 
;  10  the  place  of  the  residence  of  the  pron^ 
>  covrt  on  both  points  is,  we  think,  well  f- 

■  by  a  decided  weight  of  authority.   Tl  ' 
the  case  of  Allen  v.  Merchants  Bank, 
ted  m  15  Wend.  482,  and  which  was  afterwards  rei  ;nc 

of  .■•i-r.irs,  where  the  judgment  of  the  court  bel;.. ..         ,    re- 
ajority  of  the  court  of  errors.  This  reversal  is  opp<;*sed 
•"  decisions  of  great  authority,  and  is  not,  as  we  think, 
n  principle.    If  the  bank  in  that  case  acted  in  gocid 
"ng  a  suitable  sub-agent,  where  the  bills  were  payable, 
be  no  principle  of  justice  or  public  policy,  by  which 
:ld  be  made  liable  for  the  neglect  or  misfeasance  of  the 
"d  it  is  admitted,  by  Mr.  Senator  Verplanck,  who  states 
the  reversal  of  the  judgment,  that  the  bank  would  not 
:utble,  if  there  had  been  an  understanding  or  agreement, 
i   implied,  that  the  bills  were  to  be  transmitted  to  another 
"  :"ction.    Now,  we  think,  in  that  case, 
v  such  an  understanding.    There  is 
n  by  the  learned  senator,  in  which  w 
distinction  between  the  neglect  of  th: 
where  the  bills  were  deposited,  and  that  of  the  bank  to  which 
'■■■'"  '--jismitted  for  collections.    We  think  the  distinction  is 
igree,  however,  with  the  learned  senator,  that  the  de- 

'     ,    of  the 

orform. 

parties 

is  were 

-)  some 

ri,i  the 

to 

'!     so, 

:iat  the 


I  in  such  cases  is,  what  was  the  v 
'he  duties  the  collecting  bank  U' 
we  have  no  doubt  of  the  unc' 
case.    That  was,  we  think,  i. 
lit  the  bills,  or  to  cause  them  to  be  ; 
,pnV  nr  other  agent  in  Washington,  f( 
: 'ther,  in  employing  the  Gor 
•  v  "'-?  defendants  acted  in  gCKja 

nsible  for  the  failure  of  tha. 
r   ■'-  \  faith  we  cannot  dc' 

'  t?  in  perfectly  good  • 


it  adjudicate   n: 
0  think  it  s 
•  sidered  as  a 
:fendant  tOA\ 
not  have    ' 
:eir  fav< 


and  thi. 


r-matter  submitted  to  the 

ecessary  implication,  it 

(!  question.   They  award 

sts  of  the  action.   This 

ccided  the  point  in  contro- 

uresumption  is,  that  they  so 

t  will  he,  that  the  plaintiffs 

i.e  defendants  recover  their 

'lination  of  the  action,  which  is 


DC 


184^ 


th, 
ri'' 


\ND  BANK. 

T  OF  Massaciiuseti's.     I  Cush.  177. 

tssumpsit:  but  the  foundation  of 
legligence  of  the  defendants,  in 


l' 


aciM    in 'J: 


1>U!S    11!    lill.:     !K'11U^ 


no  do.: 
a  sub -at;- 
'4  the  pri 
the  pl- 
an <■-  >,- 
t  ' 
t\ 
dei't': 


for  him." 

"An  under 
lar  act;  th( 
office."     St.'t; 


r  collection,  the  same  being  payable 

e  the  defendants  had  no  correspond- 

;^el  contend,  the.  defendants  had  no 

an  agent  has  no  right  to  delegate 

out  the  assent  of  his  principal.  This, 

vhen,  from  the  nature  of  the  agency, 

necessarily  be  employed,  the  assent 

h  was  the  nature  of  the  agency  in 

:'-.<•  been  expected  that  the  defend- 

1  ofificers  to  proceed  to  Washing- 

The  bills  undoubtedly  were  in- 

nigton  for  collection,  and  if  the 

lib-agents  for  that  purpose,  in  good 

iding  the  power  of  the  Secretary  of 
On  page  662  Marshall,  C.  J.,  said : 
'  il  ofRcer  might,  generally,  appoint  a 
liid.  Jt  may  easily  be  supposed  that 
c  of  Secretary,  arising  from  various 
become  indispensable,  and  that  even 
it,  there  might  be  various  casualties, 
■  convenience  of  the  public  that  the 
;'  occasionally  performed  by  another 

'   for  the  purpose  of  doing  a  particu- 
do  the  general  business  of  the 
Ga.  497,  508. 


POWER    IMPLIED    FROM    CIRCUMSTANCES.  I79 

faith,  they  are  not  Uable  for  the  neglect  or  default  of  the  sub-agents. 
This  was  so  decided  in  Fabens  v.  Mercantile  Bank,  23  Pick.  330. 
The  chief  justice,  in  delivering  the  opinion  of  the  court,  says:  "It  is 
well  settled  that  when  a  note  is  deposited  with  a  bank  for  collection, 
which  is  payable  at  another  place,  the  whole  duty  of  the  bank  so  re- 
ceiving the  note,  in  the  first  instance,  is  seasonably  to  transmit  the 
same  to  a  suitable  bank  or  other  agent  at  the  place  of  payment.  And 
as  a  part  of  the  same  doctrine,  it  is  well  settled  that  if  the  acceptor 
of  a  bill  or  promisor  of  a  note  has  his  residence  in  another  place,  it 
shall  be  presumed  to  have  been  intended  and  understood  between 
the  depositor  for  collection  and  the  bank  that  it  was  to  be  trans- 
mitted to  the  place  of  the  residence  of  the  promisor."  This  decision 
of  the  court  on  both  points  is,  we  think,  well  founded  in  principle, 
and  supported  by  a  decided  weight  of  authority.  The  only  opposing 
decision  is  in  the  case  of  Allen  v.  Merchants  Bank,  which  was  first 
reported  in  15  Wend.  482,  and  which  was  afterwards  removed  to  the 
court  of  errors,  where  the  judgment  of  the  court  below  was  re- 
versed by  a  majority  of  the  court  of  errors.  This  reversal  is  opposed 
to  a  number  of  decisions  of  great  authority,  and  is  not,  as  we  think, 
well  founded  in  principle.  If  the  bank  in  that  case  acted  in  good 
faith,  in  selecting  a  suitable  sub-agent,  where  the  bills  were  payable, 
there  seems  to  be  no  principle  of  justice  or  public  policy,  by  which 
the  bank  should  be  made  liable  for  the  neglect  or  misfeasance  of  the 
sub-agent.  And  it  is  admitted,  by  Mr.  Senator  Verplanck,  who  states 
the  grounds  of  the  reversal  of  the  judgment,  that  the  bank  would  not 
have  been  liable,  if  there  had  been  an  understanding  or  agreement, 
express  or  implied,  that  the  bills  were  to  be  transmitted  to  another 
bank  for  collection.  Now,  we  think,  in  that  case,  as  in  this,  there 
was  manifestly  such  an  understanding.  There  is  another  view  of 
that  case,  taken  by  the  learned  senator,  in  which  we  cannot  concur. 
He  makes  no  distinction  between  the  neglect  of  the  officers  of  the 
bank  where  the  bills  were  deposited,  and  that  of  the  bank  to  which 
they  were  transmitted  for  collections.  We  think  the  distinction  is 
obvious.  We  agree,  however,  with  the  learned  senator,  that  the  de- 
cisive question  in  such  cases  is,  what  was  the  understanding  of  the 
parties,  as  to  the  duties  the  collecting  bank  undertook  to  perform. 
And  as  to  this  we  have  no  doubt  of  the  understanding  of  the  parties 
in  the  present  case.  That  was,  we  think,  that  the  defendants  were 
to  transmit  the  bills,  or  to  cause  them  to  be  transmitted,  to  some 
suitable  bank  or  other  agent  in  Washington,  for  collection ;  and  the 
questions  are,  whether,  in  employing  the  Commonwealth  Bank  to 
transmit  the  bills,  the  defendants  acted  in  good  faith ;  and  if  so, 
whether  they  are  responsible  for  the  failure  of  that  bank.  That  the 
defendants  acted  in  good  faith  we  cannot  doubt.  The  Common- 
wealth Bank  at  the  time  was  in  perfectly  good  credit,  and  had  great 
facilities  for  obtaining  payment  of  bills  and  notes  payable  in  distant 
states.   The  defendants  were  the  plaintififs'  general  agents,  and  they 


l8o  DELEGATION. 

had  no  instructions ;  they  were,  therefore,  to  exercise  their  best 
judgment  as  to  the  transmission  of  the  bills,  and  the  remittance  of  the 
money  when  collected.  And  we  see  no  cause  to  doubt  that  they  acted 
in  good  faith,  and  exercised  a  sound  judgment.  It  was  objected  that 
the  defendants  ought  to  have  made  restricted  endorsements ;  but  it 
is  a  satisfactory  answer  that  the  defendants  made  their  endorsements 
in  the  same  manner  the  plaintiffs  did.  Considering,  then,  that  the 
defendants  acted  in  good  faith,  and  exercised  a  sound  judgment  in 
employing  the  Commonwealth  Bank,  we  think  there  is  no  principle 
of  law  or  equity  which  can  subject  them  to  any  liability  by  reason 
of  the  subsequent  failure  of  that  bank. 

In  our  opinion  the  defendants'  responsibility  was  limited  to  good 
faith  and  due  discretion  in  the  choice  of  an  agent  to  transmit  the 
bills,  and  to  procure  a  remittance  of  the  money  when  paid.  This  case 
is  not  distinguishable  from  the  case  of  Fabens  v.  Mercantile  Bank, 
and  the  cases  there  cited. 

We  do  not  think  that  the  proof  of  any  usage  is  necessary  to  sup- 
port these  decisions ;  but  in  the  present  case,  the  usage  is  well  proved 
to  have  been  uniform,  in  similar  cases,  ever  since  the  year  1833  or 
1834,  three  or  four  years  before  these  bills  were  deposited  in  the  de- 
fendant bank. 

It  was  also  proved  that  one  bill  had  been  transmitted  in  like  man- 
ner, by  the  defendants,  for  the  plaintiffs,  and  returned  to  them  with 
protest,  and  without  objection  by  them.  This  was  in  1836,  more 
than  a  year  before  the  bills  in  this  case  were  deposited.  This  would 
be  sufficient  notice  of  the  usage  or  manner  in  which  the  defendant 
transacted  such  business,  if  any  such  notice  were  required.  It 
seems,  however,  that  the  usage  of  a  bank  is  binding  on  all  persons 
dealing  with  the  bank,  whether  they  know  of  the  usage  or  not: 
Lincoln  and  Kennebeck  Bank  v.  Page,  9  Mass.  155 ;  Bank  of  Wash- 
ington V.  Triplett,  i  Pet.  25.  That  is  a  point,  however,  not  necessary 
to  be  decided  in  this  case. 

Plaintiffs'  nonsuit.^ 

^Accord:  East-Haddam  Bank  v.  Scovil,  12  Conn.  302;  Merchants'  National 
Bank  v.  Goodman,  109  Pa.  St.  422. 

Contra:  Corn  Exchange  Bank  v.  Farmers'  Nat.  Bank,  118  N.  Y.  443;  Da- 
vey  V.  Jones,  42  N.  J.  L.  28. 

See  collection  and  discussion  of  authorities  in  Simpson  v.  Waldby,  63  Mich. 
439,  447-450. 

See  Ames'  Cases  on  Trusts,  17. 


CHAPTiiR  Vii. 

LIABILITY   OF   PRINCIPAL  TO  THIRD 


-Contracts. 

SUTTON  V.  TATHAM. 


y^.         Uw'.i.^i     wi      v^> 


.3  Bench,     id  A.  ^-  ■ 


for  the  work  and  labor,  etc.,  of  plalntilrs  !x- 

m  as  the  brokers  and  agents  of  and  for  6  on 

lest,  and  for  commission  and  reward  due 
Ts  in  respect  thereof.    Counts  for  money 
m  account  stated.    Plea,  non-assumpsit.    On  the  trial 
Oenman,   C.  ].,  at  the  sittings  in  London  after  last 
iie  following  facts  appeared;   The  defendant  had  em- 
■ntiffs  as  brokers  and  had  dealings  with  them  in  stock 
.  three  or  four  years.    On  May  28,  1838,  he  gave  di- 
i  plaintiffs  to  sell  for  him  250  shares  in  the  South 
>mpany.    They  accordingly,  on   May  29th,   sold   109 
)  Wells,  a  broker,  and  advised  defendant  thereof  by 
lay;  and  on  May  30th  they  sold  Wells  ion  •^■t,^-  -•:  ' 
0  same  day  the  defendant  came  to  the  plai^ 
said  that  there  had  been  a  mistake  r  • 
to  sell  fifty  shares.    He,  in  fact,  had 
intiflfs.  On  the  following  day  one 
..  had  an  interview  with  the  def' 
iince,  the  latter  said  "ha  had  got  uvi<_>  a  uiiijcuit>. 
it  was  an  unfortunate  mistake."    Defendant  asked  if 
jld  not  be  made  void?  Sutton  said  "No."   Defendant 
^.c  must  leave  the  matter  in  their  h-     '     *     do  the  best 
;d."    Plaintiffs,  on  the  31st,  applied  t-:  >  cancel  the 

'  '  Ti  of  the  mistake,  but  h  ■■   it 

:  exchange  is  governed  h  nt- 

and  one  of  them  is,  that  \-cr 

•^1   his  contract  the  pu'  in 

make  u^  iency,  and  charge  tli  ith 

y  differed  '-v  The  reception  of  . ,  .cnce 

ted  to,  but  ion  overruled.     '  broker 


t8c 


DF.LFr  VTTON. 


judgment  as  to  the  tran; 
mc"  '  ilected. 

in  ^d  ^xer< 

th- 

:  mannc 


Ill  our  C; 
faith  and  < 
bills,  and  to  pre 
is  not  distingiii 
and  the  cases  tV 


\^ : .. 


po 

I": 


P' 
th; 
b<: 
ti 


seems,  J.ov.ever,  lii- 
dealing  with  the  1 
Lincoln  and  Kennel 
:nc-\iiu  \  Triplett,  i 
d  in  this 
.!iiu:>'  nonsuit. 


..■  v.'.CLv....e  their  best 

'(j  the  remittance  of  the 

o  doubt  that  they  acted 

:i .  It  was  objected  that 

■  cted  endorsements;  but  it 

ts  made  their  endorsements 

a.    Considering,  then,  that  the 

exercised  a  sound  judgment  in 

.  we  think  there  is  no  principle 

hem  to  any  liability  by  reason 

)onsib:lity  was  limited  to  good 

>  e  of  -'r  np^ent  to  transmit  the 

jt  the  r.  en  paid.  This  case 

'.-.c  rJ.  y  Mercantile  Bank, 

...  cL.v  ..,,^c>.,K,.  .-  i.^cessary  to  sup- 
resent  case,  the  usage  is  well  proved 
•  cases,  ever  since  the  year  1833  or 
these  bills  were  deposited  in  the  de- 

I  had  been  transmitted  in  like  mar- 

'aintiffs,  and  returned  to  them  with 
jy  them.  This  was  in  1836,  more 
as  case  were  deposited.   This  would 

or  manner  in  which  the  defendant 
'  y   such   notice   were   required.    It 

yi  a  bank  is  binding  on  all  persons 

I    they  know  of  the  usage  or  not : 

:  V.  Page,  9  Mass.  155;  Bank  of  Wash- 

Tli.'it  1~  :-i  rsT.irjL,  ho\vt:ver.  I'.ot  necessarv 


-   - 1<  V.  Scovil,  12  Conn,  302;  Merchants'  National 

22.  ' 

.      -.  V.  Farmers'  Nat.  Bank,  n8  N.  Y.  443;  Da- 
ion  of  authorities  in  Simpson  v.  Waldby,  63  Midi 


CHAPTER  VII. 

LIABILITY    OF    PRINCIPAL   TO   THIRD    PERSONS. 


Section  1. — Contracts. 

SUTTON  V.  TATHAM.  '; 

1839.     Court  of  Queen's  Bench.     10  A.  &  E.  27. 

Assumpsit  for  the  work  and  labor,  etc.,  of  plaintiffs  done  and  be- 
stowed by  them  as  the  brokers  and  agents  of  and  for  defendant  on 
his  retainer  and  at  his  request,  and  for  commission  and  reward  due 
from  defendant  to  plaintiffs  in  respect  thereof.  Counts  for  money 
paid,  and  on  an  account  stated.  Plea,  non-assumpsit.  On  the  trial 
before  Lord  Denman,  C.  J.,  at  the  sittings  in  London  after  last 
Hilary  term,  the  following  facts  appeared:  The  defendant  had  em- 
ployed the  plaintiffs  as  brokers  and  had  dealings  with  them  in  stock 
and  shares  for  three  or  four  years.  On  May  28,  1838,  he  gave  di- 
rections to  the  plaintiffs  to  sell  for  him  250  shares  in  the  South 
Australian  Company.  They  accordingly,  on  May  29th,  sold  109 
such  shares  to  Wells,  a  broker,  and  advised  defendant  thereof  by 
letter  of  that  day;  and  on  May  30th  they  sold  Wells  100  more  such 
shares.  On  the  same  day  the  defendant  came  to  the  plaintiffs'  count- 
ing-house and  said  that  there  had  been  a  mistake  and  that  he  had 
intended  only  to  sell  fifty  shares.  He,  in  fact,  had  not  the  number 
sold  by  the  plaintiffs.  On  the  following  day  one  of  the  plaintiffs,  Mr. 
Robert  Sutton,  had  an  interview  with  the  defendant  when,  as  was 
stated  in  evidence,  the  latter  said  "he  had  got  into  a  difficulty." 
Sutton  said,  "it  was  an  unfortunate  mistake."  Defendant  asked  if 
the  bargain  could  not  be  made  void  ?  Sutton  said  "No."  Defendant 
then  said  "he  must  leave  the  matter  in  their  hands  to  do  the  best 
they  could."  Plaintiffs,  on  the  31st,  applied  to  Wells  to  cancel  the 
bargain,  informing  him  of  the  mistake,  but  he  declined,  saying  it 
was  too  late.  The  stock  exchange  is  governed  by  rules  of  a  commit- 
tee which  are  in  print,  and  one  of  them  is,  that  if  the  selling  broker 
is  not  prepared  to  fulfil  his  contract  the  purchaser  may  buy  in 
shares  to  make  up  the  deficiency,  and  charge  the  selling  broker  with 
any  loss  by  difference  of  price.  The  reception  of  this  rule  in  evidence 
was  objected  to,  but  the  objection  overruled.    If  the  selling  broker 

181 


l82  LIABILITY   TO    THIRD   PERSONS. 

refuses  to  make  up  the  difference  he  is  liable  to  be  expelled  from  the 
stock  exchange.  According  to  the  usage  no  principal  is  named  by  the 
broker  on  either  side.  The  plaintiffs  being  unable  to  complete  their 
contract,  Wells  bought  in  shares,  according  to  the  rule,  on  the  best 
terms  in  his  power,  and  there  being  a  loss  on  the  transaction,  the 
plaintiffs  repaid  this,  and  broker's  commission  for  the  purchase,  to 
Wells,  on  his  demand.  The  present  action  was  brought  to  recover 
this  amount,  and  the  plaintiffs'  brokerage  on  the  sale  of  the  shares 
to  Wells.  Sir  F.  Pollock,  for  the  defendant,  cited  Child  v.  Morley, 
8  T.  R.  6io,  as  shewing  that  a  broker  having  voluntarily  made  a  pay- 
ment in  obedience  to  the  rules  of  the  stock  exchange,  could  not 
hold  his  principal,  a  stranger  to  those  rules,  responsible  for  the 
amount.  Lord  Denman,  C.  J.,  thought  that  in  this  case  the  princi- 
pal was  answerable,  but  as  to  the  loss  on  the  second  purchase,  he  left 
it  to  the  jury  to  say  whether  the  bargain  for  that  purchase  was  made 
within  a  reasonable  time  after  the  mistake  was  discovered ;  intimat- 
ing his  own  opinion  that  the  plaintiffs  were  only  entitled  to  recover 
the  commission,  inasmuch  as  they  did  not  appear  to  have  done  the 
best  in  their  power  for  the  defendant  as  to  the  repurchase.  Verdict 
for  the  plaintiffs  for  52/  5^-.,  the  amount  of  the  two  commissions. 

Sir  F.  Pollock  now  moved  for  a  new  trial  on  the  ground  of  mis- 
direction. The  defendant  must  lose  the  commission  on  the  sale  to 
Wells,  that  sale  having  been  the  result  of  his  own  mistake.  But  the 
plaintiffs  are  not  entitled  to  commission  on  the  repurchase,  if  by 
greater  diligence,  they  could  have  procured  the  sale  to  be  cancelled ; 
and  at  all  events  they  might  have  left  the  defendant,  who  was  not 
amenable  to  the  rules  of  the  stock  exchange,  to  adjust  it  for  himself. 
If  they  have  thought  proper  to  comply  with  those  rules,  by  which  no 
principals  are  known,  and  brokers  who  have  contracted  to  sell 
must,  under  certain  penalties  deliver  the  amount  contracted  for,  the 
defendant,  who  is  not  cognizant  of  the  rules,  ought  not  to  bear  the 
consequences  of  such  compliance.  The  language  of  the  judges,  par- 
ticularly that  of  Lawrence,  J.,  in  Child  v.  Morley,  is  strongly  in  the 
defendant's  favor.  (Lord  Denman,  C.  J.  I  think  a  person  employ- 
ing one  who  is  notoriously  a  broker  must  be  taken  to  authorize  his 
acting  in  obedience  to  the  ndes  of  the  stock  exchange.  Patterson,  J. 
Did  the  defendant  desire  to  have  the  purchaser's  name  given  to  him? 
Lord  Denman,  C.  J.,  stated  the  evidence  on  this  point,  as  above.) 

LiTTLEDALE,  J.  C. — A  pcrson  who  employs  a  broker  must  be  sup- 
posed to  give  him  authority  to  act  as  other  brokers  do.  It  does  not 
matter  whether  or  not  he  himself  is  acquainted  with  the  rules  by 
which  brokers  are  governed. 

Patteson  and  Coleridge,  Js.,  concurred. 

Per  Curiam. 

Rule  refused.^ 

^  "If  there  is  a  general  usage,  applicable  to  a  particular  profession,  parties 


I-  war- 
's- p.ud 


:li  Starr  was  appointed. 

n.  r,.,wiants  allege  (■'■■■'■ 
*    The  ne 


.   .by  Leivuy 
confer  upon 
,'d  with  ^  arranty 

'•    ''-      ■'•  i:i    fhe   £l..>. 

. ,  after 

■nd  territorir  ,  at  the 

for  the    . 
i  real  e 
'ins  in  all  r 

.-,-     IS."    Again  L 

ite  "deeds  ot  conveyance  necessary  for  the  full 

}•  of  all  our  --'•—■■-■    -dit,  title,"  etc    "'•      -ni- 

cts.  as  we  ;  'd  do  persoi  le 

:   and  ai 

rdl  resp- 

•n!?'tia.7e  rtrone.--; 


;o   ueai    >■ 

itself,  or  a  ; 
for  a  oart"  • 


;  from  the 
led  by  the 
'able  to  complete  their 
o  the  rule,  on  the  best 
m  the  transaction,  the 
■n  for  the  purchase,  t-^ 
.as  brought  to  recov^ 
uv.  the  sale  of  the  shar< 
mt.  cit«='d  Child  v.  Morkv 
Y  made  a  pa; 
ge,  could  n<  ' 
id   his  pi-  !Ose  rules,  responsible  for  tl 


,,Mf.  T 


..'  viie  }v 


'!,se  the  prirft 
;  rchase,  he  le 

■    "  was  mao 


within  a  re  ;  mtima 

•jicv  hi  J  :.ccl  to  recov 

■':■    ;v  fiave  done  tl. 

hase.   Verdu 

riunissions. 

■'d  of  mi 

u  '.it  I  he  sale  > 

:  mistake.   But  ti. 


,  wlio  was  ii! 
it  for  himsel  i 
V  with  those  rules,  by  which  no 
>,iw.    n-x,-   .v>.,tracted   to  sell 
acted  for,  the 
i;  Tiif  rv'ics,  i"i,:^iiL  not  to  bear  th' 
The  bno-nafre  of  the  judges,  pa 
'     ,  is  strongly  in  the 
I    a  person  employ- 
must  be  taken  to  authorize  his 
,:  >i(v1c  c\,-\y)':\'k\   Patterson,  J. 


:lf  is  ac 

^iven  to  him? 

iS  above.) 
.  r  must  be  su; 
'  \   It  does  not 

'  the  rules  by 

concurred. 

ofession.  part'. 

CONTRACTS.  183 

LeROY  V.  BEARD. 
1850.     Supreme  Court  of  the  United  States.     8  How.  451. 

Action  by  Beard  against  LeRoy  and  wife  on  a  covenant  of  war- 
ranty contained  in  a  deed  made  by  their  agent  Starr.  LeRoy  and 
wife  denied  Starr's  authority  to  make  a  covenant  of  warranty  for 
them,  there  being  no  express  authority  to  do  so  in  the  letter  of  at- 
torney by  which  Starr  was  appointed.  Verdict  and  judgment  for 
plaintifif  below.   Defendants  allege  error.  ^ 

Woodbury,  J. — -  *  *  *  The  next  instruction  to  which  the  orig- 
inal defendant  objected,  and  which  is  the  chief  and  most  difficult 
one  that  can  properly  be  considered  by  us,  under  the  present  bill  of 
exceptions,  is  that  the  power  of  attorney  by  LeRoy  and  his  wife  to 
Starr,  their  agent,  was  broad  enough  to  confer  upon  him  "authority 
to  give  a  deed  of  the  land  with  covenant  of  warranty." 

This  power  of  attorney  is  given  in  extenso  in  the  statement  of  the 
case.  It  appears  from  its  contents  that  LeRoy,  after  authorizing 
Starr  to  invest  certain  moneys  in  lands  and  real  estate  in  some  of 
the  western  states  and  territories  of  the  United  States,  at  the  discre- 
tion of  the  said  Starr,  empowered  him  "to  contract  for  the  sale  of 
and  to  sell,  either  in  whole  or  in  part,  the  lands  and  real  estate  so 
purchased  by  the  said  Starr,"  and  "on  such  terms  in  all  respects 
as  the  said  Starr  shall  deem  most  advantageous."  Again  he  was 
authorized  to  execute  "deeds  of  conveyance  necessary  for  the  full 
and  perfect  transfer  of  all  our  respective  right,  title,"  etc.,  "as  suffi- 
ciently in  all  respects  as  we  ourselves  could  do  personally  in  the 
premises,"  "and  generally  as  the  agent  and  attorney  of  the  said 
Jacob  LeRoy"  to  sell  "on  such  terms  in  all  respects  as  he  may  deem 
most  eligible." 

It  would  be  difficult  to  select  language  stronger  than  this  to  justify 
the  making  of  covenants  without  specifying  them  eo  nomine.  When 
this  last  is  done  no  question  as  to  the  extent  of  the  power  can  arise, 
to  be  settled  by  any  court.  But  when,  as  here,  this  last  is  not  done, 
the  extent  of  the  power  is  to  be  settled  by  the  language  employed  in 
the  whole  instrument  (4  Moore  448),  aided  by  the  situation  of  the 
parties  and  of  the  property,  the  usages  of  the  country  on  such  sub- 
jects, the  acts  of  the  parties  themselves,  and  any  other  circumstance 
having  a  legal  bearing  and  throwing  light  upon  the  question.    *    *    * 

employing  an  individual  are  supposed  to  deal  with  him  according  to  the 
usage."   Best,  C.  J.,  in  Sewall  v.  Corp,  i  C.  &  P.  392,  393. 

"A  general  custom  is  the  common  law  itself,  or  a  part  of  it.  *  *  *  It 
would  seem,  however,  that  upon  principle,  for  a  party  to  be  bound  by  a  local 
usage,  or  a  usage  of  a  particular  trade  or  profession,  he  must  be  shown  to 
have  knowledge  or  notice  of  its  existence."  Folger,  J.,  in  Walls  v.  Bailey, 
49  N.  Y.  464,  471,  473. 

See  particularly  Day  v.  Holmes,  103  Mass.  306. 

'  The  reporter's  statement  of  facts  is  condensed. 


184  LIABILITY   TO   THIRD   PERSONS. 

The  usages  of  this  country  are  beheved,  also,  to  be  very  uniform 
to  insert  covenants  in  deeds.  In  the  case  of  the  Lessee  of  Clarke  v. 
Courtney,  5  Peters  (U.  S.)  349,  Justice  Story  says :  "This  is  the  com- 
mon course  of  conveyances,"  and  that  in  them  "covenants  of  title  are 
usually  inserted."  See  also,  6  Hill  (N.  Y.)  338.  Now,  if  in  this 
power  of  attorney  no  expression  had  been  employed  beyond  giving 
an  authority  to  sell  and  convey  this  land,  saying  nothing  more  ex- 
tensive or  more  restrictive,  there  are  cases  which  strongly  sustain 
the  doctrine  that,  from  usage,  as  well  as  otherwise,  a  warranty  by 
the  agent  was  proper  and  would  be  binding  on  the  principal. 

It  is  true  that  some  of  these  cases  relate  to  personal  estate,  and 
some,  perhaps,  should  be  confined  to  agents  who  have  been  long  em- 
ployed in  a  particular  business,  and  derive  their  authority  by  parol, 
no  less  than  by  usage,  and  consequently  may  not  be  decisive  by 
analogy  to  the  present  case.    3   T.   R.   757 ;   Helyear  v.   Hawke, 

5  Es.  Ca.  ^^2,  note;  Pickering  v.  Busk,  15  East  45,  2  Camp  N.  P. 
555,  6  Hill  (N.  Y.)  338,4  T.R.  177- 

So  of  some  cases  which  relate  to  the  quality  and  not  to  the  title  of 
property.  Andrews  v.  Kneeland,  6  Cowen  (N.  Y.)  354;  The  Monte 
Allegre,  9  Wheat.  (U.  S.)  648,  6  Hill  (N.  Y.)  338. 

But  where  a  power  to  sell  or  convey  is  given  in  writing,  and  not 
aided,  as  here,  by  language  conferring  a  wide  discretion,  it  still  must 
be  construed  as  intending  to  confer  all  the  usual  means  or  sanction, 
the  usual  manner  of  performing  what  is  intrusted  to  the  agent.  10 
Wend.  (N.  Y.)  218;  Howard  v.  Baillie,  2  H.  Bl.  618;  Story  on 
Agency,  p.  58 ;  Dawson  v.  Lawly,  5  Es.  Ca.  65 ;  Ekins  v.  Maclish, 
Ambler,  186,  Salk.  283;  Jeffrey  v.  Bigelow,  13  Wend.  (N.  Y.)  527, 
28  Am.  Dec.  476,  6  Cowen  (N.  Y.)  359.  Nor  is  the  power  confined 
merely  to  "usual  modes  and  means,"  but,  whether  the  agency  be  spe- 
cial or  general,  the  attorney  may  use  appropriate  modes  and  reason- 
able modes ;  such  are  considered  within  the  scope  of  his  authority. 

6  Hill  (N.  Y.)  338;  2  Pick.  (Mass.)  345;  Bell  on  Com.  L.  410;  2 
Kent's  Com.  618;  Vanada  v.  Hopkins,  i  J.  J.  Marsh  (Ky.)  287,  19 
Am.  Dec.  92;  Sandford  v.  Handy,  23  Wend.  (N,  Y.)  268.  We  have 
already  shown  that,  under  all  the  circumstances,  a  covenant  of  war- 
rantv  here  was  not  only  usual,  but  appropriate  and  reason- 
able.'-    *     *     * 

The  judgment  below  is  affirmed.^ 

^A  portion  of  the  opinion  is  omitted. 

^  Regarding  the  custom  to  warrant  machinery  see  McCormick  v.  Kelly,  28 
Minn.  135. 


LORD  V.  I 
'ouRT  OF  Common  P; 


he  fir?t  count  of 

the  declarr 

;hat  the 

u',  1844,  : 

rit- 

.0   l5J\    t' 

>rth 

i  date  t 

red 

.,;>     J...,:^...,..      . 

■'^    and  ci.cv^  jw. 

•  '  1  r-  - 

le  same  to  t] 

2,                    1 

,  cnat  the  said 

1     1-  . 

et  forma  •  wher: 

J.,  at  Ine  i. 
^  /eared  that  o 
lent  maker;  that  his  wife  was  in 
....,  and,  ai'""'^-'    '^-her  things,  dra\ 
bills  in  his  7.  :  that  the  note  in 

'      orth's  da-ji;;;ar,  in  his  name,  in  tijc  pre: - 
'f  her  mother,  and  that  it  was  thf'n  d<^1iv- 
;  T. 

i  it  was  insisted  that  the 
:  i  lor  the  defendant ;  for,  that  the  mother 
:,ate  to  her  daughrri   ih^  -.i;-^  .-;,-.-  ♦.,  «.-,_ 

e.iUled  the  objection,  -uhj    'nrrx 

si  los.,  the  amount  of  the  note 
'>ndant  tr 
•  court 
:d. 
ed  a  rule  tiisi,  agair. 

..  Shuttleworth's  bnsint. 
she  was  in  the  habit  of 


■f  ahum  faa 
delegated  aun.. 
lental  cause,  wer. 


.ter 
ilic 

a: 


LIAHILITY   T<; 


re-,  of  lliis  coun 


i.y    LO   bCi- 

more  t'.-  ■ 
V.  that,  from 


.r-(  ,>,cr 


aiT'.l'i^v  to  th^ 

5  E^;  ■ 


to  be  very  uniform 
he  Lessee  of  Clarke  v. 
says :  "This  is  the  pom- 
;  "covenants  of  title  are 
8.  .  Now,  if  in  this 
ved  beyond  giving 
•  more  ex- 
ig-ly  sustain 
s  oiherwise,  a  warranty  by 
.  ng  on  the  principal, 
relate  to  personal  estate,  and 
'—•  ■■■'-■>  have  been  long  em- 
authority  by  parol, 
he  decisive  by 
ar  V.   Hawke, 
2  Camp  N.  P. 


■.  Q  Whe 


,  i86. 


,hh 


-:    was    1! 


ie  quail  t  to  the  title  of 


lumg,  ana  v-oi 
>n.  it  still  must 
tu  d;c  ■'  .'IS  or  sanction, 

it  i?  it),  ^  the  agent.  lo 

h.  Bi.  6i8;  Story  on 
.    .  ,  ...  65;  Ekins  V.  Maclish, 
igelow,  13  Wend.  (N.  Y.)  527, 
359.   Nor  is  the  power  confined 
but,  whether  the  agency  be  spe- 
'es  and  reason- 
his  authority. 
. ;  345 ;  Beii  on  Com.  L.  410 ;  2 
"s/i  J.  J.  Marsh  (Kv.)*  287,  19 
Wend  (N.  Y.)  268.  We  have 
cumstances,  a  covenant  of  war- 
but    appropriate    and    reason- 


nuciui!f.Tv  ;;.ee  Aiccormicic  v.  iveiiv,  2? 


CONTRACTS.  I85 

LORD  V.  HALL. 
1849.     Court  of  Common  Pleas.     8  C.  B.  627. 

Assumpsit.  The  first  count  of  the  declaration  alleged  that  the 
defendant,  on  the  3d  of  May,  1844,  made  his  promissory  note  in  writ- 
ing, and  thereby  promised  to  pay  to  the  order  of  Joseph  Shuttleworth 
the  sum  of  £251,  three  months  after  the  date  thereof,  and  delivered 
the  same  to  the  said  Joseph  Shuttleworth,  and  that  Joseph  Shuttle- 
worth  endorsed  the  same  to  the  plaintiff,  etc. 

Second  plea,  that  the  said  Joseph  Shuttleworth  did  not  endorse 
the  note  modo  et  forma;  whereupon  the  issue  was  joined. 

The  cause  was  tried  before  V.  Williams,  J.,  at  the  first  sitting  at 
Westminster,  in  Trinity  term  last.  It  appeared  that  Shuttleworth 
was  a  mathematical  instrument  maker ;  that  his  wife  was  in  the  habit 
of  managing  all  his  affairs,  and,  amongst  other  things,  drawing,  ac- 
cepting, and  endorsing  bills  in  his  name,  and  that  the  note  in  question 
was  endorsed  by  Shuttleworth's  daughter,  in  his  name,  in  the  pres- 
ence and  by  the  direction  of  her  mother,  and  that  it  was  then  deliv- 
ered by  the  latter  to  the  plaintiff. 

On  the  part  of  the  defendant  it  was  insisted  that  the  issue  on  the 
endorsement  must  be  found  for  the  defendant ;  for,  that  the  mother 
had  no  right  thus  to  delegate  to  her  daughter  the  authority  to  en- 
dorse. 

The  learned  judge  overruled  the  objection,  and  directed  a  verdict 
for  the  plaintiff  for  £31  los.,  the  amount  of  the  note  and  interest, 
reserving  leave  to  the  defendant  to  move  to  enter  a  verdict  for  him 
on  the  second  issue,  if  the  court  should  think  the  endorsement  by 
Shuttleworth  was  not  well  proved. 

Humfrey  accordingly  obtained  a  rule  nisi,  against  which  White- 
hurst  now  showed  cause. 

It  appeared  at  the  trial  that  Shuttleworth's  business  was  generally 
managed  by  his  wife ;  that  she  was  in  the  habit  of  drawing,  accept- 
ing, and  endorsing  bills  and  notes  in  his  name ;  and  that  she,  having 
previously  by  the  hand  of  her  daughter  endorsed  the  note  in  ques- 
tion, delivered  it  to  the  plaintiff.  The  endorsement  by  the  daughter 
by  the  direction  and  in  the  presence  of  her  mother,  was  clearly  the 
act  of  the  latter.  Qui  facit  per  alimn  facit  per  se.  This  is  not,  as 
suggested,  a  delegation  of  a  delegated  authority.  Suppose  Mrs. 
Shuttleworth,  from  some  accidental  cause,  were  rendered  unable  to 
make  the  endorsement  with  her  own  hand,  could  it  be  said  that  she 
was  precluded  from  using  the  hand  of  another  person  for  that  pur- 
pose? A  recognition  of  an  act  of  an  agent  binds  the  principal. 
Where  a  man  hands  over  a  bill  or  note,  with  his  acceptance  or  en- 
dorsement upon  it,  he  is  estopped  from  afterwards  saying  that  the 
acceptance  or  endorsement  is  not  his ;  and  here  Shuttleworth  would 


l86  LIABILITY   TO    THIRD   PERSONS. 

be  estopped  from  denying  his  endorsement,  by  the  act  of  his  acknowl- 
edged agent  in  deHvering  over  the  note,  endorsed,  to  the  plaintiff. 

Humfrey,  in  support  of  his  rule : 

The  note  is  handed  over  by  Mrs.  Shuttleworth  to  the  plaintiff, 
with  an  unauthorized,  a  forged,  endorsement  by  the  daughter.  How 
can  the  defendant  be  estopped,  by  something  done  to  the  note  after 
it  had  passed  out  of  his  hands,  from  denying  that  the  endorsement 
was  the  endorsement  of  Shuttleworth  ? 

(Maule,  J. — Shuttleworth  was  estopped;  he  has  done  something 
which  amounts  to  an  order.  If  the  endorsement  by  the  daughter 
was  made  under  the  authority  of  the  father,  it  is  no  forgery.  The 
substantial  right  of  the  defendant  is,  to  be  secure  that  he  pays  the 
right  person.  The  question  is  whether  this  was  not  really  the  act  of 
the  wife.) 

If  the  wife  might  lawfully  delegate  her  authority  to  the  daughter 
in  this  way,  what  is  there  to  prevent  the  daughter  delegating  it  in 
her  turn  to  another? 

(Maule,  J. — It  is  conceded  that  one  having  an  authority  of  this 
sort  cannot  delegate  it.) 

In  Toms  v.  Cuming  (i),  this  court  held  that  a  notice  of  objection 
under  the  registration  act,  6  &  7  Vict.,  c.  18,  §  17,  must  be  signed 
by  the  hand  of  the  party  objecting. 

(Maule,  J. — Nobody  denies  the  power  of  the  legislature  to  require 
a  signature  by  the  hand  of  the  party.  If  the  authority  given  to  the 
wife  here  was  to  endorse  by  all  means  which  would  make  the  en- 
dorsement enure  as  an  endorsement  by  her,  this  clearly  would  be  an 
execution  by  her  of  that  authority,  and  no  delegation.) 

To  hold  that  the  wife  could,  by  any  other  hand  than  her  own, 
exercise  the  authority  confided  to  her  by  her  husband,  would  be  to 
lay  down  a  doctrine  which  will  be  very  embarrassing  to  commercial 
transactions. 

Maule,  J. — It  seems  to  have  been  put  at  the  trial,  as  a  question  of 
law,  whether  the  rule,  delegatus  non  potest  delegare,  applied,  so  as 
to  entitle  the  defendant  to  a  verdict  upon  the  second  issue.  It  seems 
to  me,  however,  that  this  w^as  far  from  being  a  correct  view  of  the 
matter :  the  maxim  has  no  application  at  all  here.  The  question  is, 
whether,  upon  the  evidence,  the  wife  was  not  acting  in  the  strict 
exercise  of  the  authority  conferred  upon  her  by  her  husband  in  doing 
what  she  did,  viz. :  in  requesting  a  third  person  to  do  it  in  her  pres- 
ence. There  was  evidence  that  the  wife  had  the  general  management 
of  her  husband's  business.  And  when  he  authorized  her  to  draw, 
accept  and  endorse  bills  in  his  name,  that  may  fairly  be  extended  to 
authorizing  her  to  select  some  person,  pro  hac  vice,  to  wTite  the  name 
of  her  husband  for  her.  It  may  be  that  this  will  lead  to  some  incon- 
venience. But,  her  husband  having  trusted  her  to  exercise  her 
discretion  as  to  drawing,  accepting  and  endorsing,  may  be  assumed 
to  trust  her  also  to  use  her  discretion  to  select  the  hand  of  another 


OI 

-on 

e  couia  be  very  ]■■  he 

..^  .0..    I,  the'-rf-rf-  5e 

find  a  case  be 

\  to  draw  bills  in  the 

.i  A.    The  ^ 

i  deuce ; 

■•,  Maui'' 
;es  seem  .-.  , 
it  was  clear!; 
n  f'jr  ci.v  _  iher  or  not  rii'. 

iven  by  the  to  the  wife  t^* 

•repared 
:  if  I  had 
'.iry.     ^i  t  be  urged  to  intiuence  a  decision  eittie: 

,ay.     Til!  <i'nt  ought  ri'''    T.he  -^-nt^^'h-  (-^--i-vclp,] 

The  re  ing. 


H\ZELTINE  V.  MILLER 


eieudarii  by  an  agreciuenl:  ior  s..  :>.■ 

'ig  at  iu  ordered 

.-eit-'ir  ■  •_.  the  r;!:,: 

ated  for  the  ,e 


ui  deliv  •  plaintiff. 

tVie  Dlainti^;' 


denying  ihat  the  endorsemer. 

s  done  somethiiiL 
by  the  daughtt 

no  forgery.  Th. 
that  he  pays  tlv 

t  really  the  act  C' 

••   in   th(>  (l.'niol-, t." 


T  an  authority  of  th' 

objectic: 
be  signt 

3  legislature  to  requi) 
authority  given  to  tl 
1  would  make  the  eii 

:   iiaiu.i  ti'ian  her  ow' 
■v.-s'nnd,  would  be  i 
TO  commerci;. 


-lie.    It 
riect  view  oi  U. 
The  question  ; 
:  in  the 
band  in  ■ 
't  in  her 
1  manag 
her  to 
;y  ne  exteni! 
,  to  write  tbr 
ad  to  Sf  •' 
;•   to  ex^ 
sing,  may  be  as- 
t   i1u'  haiin  of  ?. 


CONTRACTS.  1 87 

to  carry  her  intention  into  effect.  I  think,  and  I  believe  the  rest  of 
the  court  agree  with  me,  that  there  was  evidence  for  the  jury  upon 
this  issue  ;  and  there  could  be  very  little  doubt  as  to  the  conclusion  the 
jury  would  come  to.  I,  therefore,  think  the  verdict  ought  not  to  be 
disturbed.  I  find  a  case  of  Ex  Parte  Sutton  (i),  which  may  be 
worth  considering  in  reference  to  this  subject.  It  was  there  held  that 
an  authority  given  to  A  to  draw  bills  in  the  name  of  B  may  be  exer- 
cised by  the  clerks  of  A.  The  way  in  which  that  case  seems  to  me  to 
apply  to  the  present  is  this,  the  lord  chancellor  treats  the  extent  of 
the  authority  as  a  matter  of  fact,  to  be  inferred  from  the  evidence ; 
and  that  confirms  the  view  we  have  taken  upon  this  occasion. 

Cresswell,  J. — I  agree  with  my  brother,  Maule,  that  this  rule 
ought  not  to  be  made  absolute.  Both  parties  seem  to  have  treated 
the  question  at  the  trial  as  one  of  law.  That  was  clearly  a  mistake. 
It  was  purely  a  question  for  the  jury,  whether  or  not  the  evidence 
showed  an  authority  given  by  the  husband  to  the  wife  to  endorse 
in  the  way  which  was  adopted  here.  I  am  not  prepared  to  say  what 
verdict  I  should  have  been  disposed  to  concur  in  if  I  had  been  on  the 
jury.  Many  reasons  might  be  urged  to  influence  a  decision  either 
way.    The  authority  of  an  agent  ought  not  to  be  unduly  extended. 

The  rest  of  the  court  concurring. 

Rule  discharsred. 


HAZELTINE  v.  MILLER. 
1857.     Supreme  Judicial  Court  of  Maine.     44  Me.  177. 

This  is  an  action  of  assumpsit  upon  an  agreement  signed  "Wm. 
R.  Miller,  agent,"  and  was  defended  upon  the  ground  that  he  had  no 
authority  to  bind  the  defendant  by  an  agreement  for  such  purposes 
as  are  embraced  therein. 

Cutting,  J.,  presiding  at  nisi  prius,  ordered  a  nonsuit,  to  which, 
and  to  the  rejection  of  certain  evidence,  the  plaintiff  excepted. 

The  facts  most  favorably  stated  for  the  plaintiff  are  just  these: 
The  defendant  owned  certain  mills  and  land  connected  therewith, 
in  the  town  of  Rowland.  William  R.  ]\Iiller  had  rented  the  mills 
and  sold  stumpage  from  the  land.  Now  did  that  authorize  William 
R.  to  make  a  contract  for  the  defendant,  to  have  lumber  cut  and 
hauled,  and  on  other  land  ?  He  never  had  even  made  such  a  contract 
on  the  mill  land.    He  had  sold,  but  never  bought. 

The  question  is  not  whether  there  is  evidence  tending  to  show, 
but  is  the  plaintiff's  testimony  sufficient  to  authorize  a  verdict  ? 

There  is  not  even  testimony,  taken  by  itself,  tending  to  show  an 
authority.  If  there  is,  there  will  be  too  much  danger  for  one  man 
even  to  employ  another. 

The  key  to  this  case   does  not  appear,  as  the  defense  was  not 


l88  LIABILITY   TO   THIRD   PERSONS. 

reached,  but  it  may  be  stated  as  a  supposition,  and  will  test  the  plain- 
tiff's pretension. 

There  is  not  a  particle  of  testimony  in  this  case  showing  any  au- 
thority in  William  R.  Miller  to  bind  the  defendant  to  pay  money — 
to  make  contracts  to  pay  money — to  assume  responsibilities.  Such  an 
inference  of  a  general  agency  would  be  destructive  of  all  business 
delegation  of  authority. 

There  is  no  evidence  of  a  general  agency.  It  is  not  every  act  of 
employment  which  renders  a  party  an  agent.  A  clerk  with  authority 
to  sell  goods  has  no  authority  to  buy  goods,  and  give  his  employer's 
note.  Nor  does  an  authority  in  this  case,  to  rent  mills  and  rent  lands, 
authorize  William  R.  ]\Iiller  to  make  a  contract  foreign  to  renting 
mills  and  lands. 

Here  was  a  mere  limited  authority  for  certain  definite  purposes. 
For  appropriate  illustrations,  see  cases  of  Webber  v.  Williams  Col- 
lege, 23  Pick.  R.  302 ;  Nash  v.  Drew,  5  Cush.  R.  424 ;  Tabor  v.  Can- 
non, 8  Met.  R.  456 ;  Calef  v.  Foster,  32  Maine  R.  92. 

The  testimony  was  rightly  rejected.  The  plaintiff  could  call  Wil- 
liam R.  Miller  as  a  witness. 

Rice,  J. — No  rule  of  law  is  better  established,  or  more  universally 
recognized,  than  that  the  authority  of  an  agent,  to  act  for,  and  bind, 
his  principal,  will  be  implied  from  the  fact  that  such  agent  has  been 
accustomed  to  perform  acts  of  the  same  general  character  for  that 
principal,  with  his  knowledge  and  assent.  Nor  is  it  necessary,  in 
order  to  constitute  a  general  agent,  that  he  should  have  done  before 
an  act  the  same  in  specie  with  that  in  question.  If  he  have  usually 
done  things  of  the  same  general  character  and  efifect,  with  the  assent 
of  his  principal,  that  is  enough.  Thus  it  was  held  in  Bank  of  Lake 
Erie  v.  Norton,  i  Hill  R.  502,  where,  by  articles  of  co-partnership,  one 
Norton  was  created  agent  of  a  firm,  but  his  authority,  as  thereby  de- 
fined, did  not  extend  to  accommodation  acceptances.  It  was  proved, 
however,  that  he  was  the  general  agent  of  the  firm,  and  with  their 
knowledge  and  assent,  was  in. the  habit  of  drawing  bills  and  making 
notes  and  endorsements  for  them ;  though  the  specific  act  of  accept- 
ance was  not  mentioned  in  the  evidence,  as  one  that  had  been  usually 
done,  the  court  decided  that  his  general  power,  and  the  usage  of  put- 
ting the  firm  name  to  commercial  paper,  in  all  other  shapes,  was  the 
same  thing,  in  substance,  and  calculated  to  raise  an  inference  in  the 
public  mind  that  he  had  such  a  power. 

But  the  acts  from  which  authority  to  do  a  specific  act  can  be  im- 
plied must  be  of  the  same  general  character  and  effect.  Thus  it  was 
held  in  Tabor  v.  Cannon,  8  Met.  R.  456,  that  an  agent  who  is  em- 
ployed by  the  owners  of  a  whale  ship,  to  fit  her  for  sea  and  purchase 
the  necessary  supplies  for  her  voyage,  cannot  bind  the  owners  by 
making  a  negotiable  note,  or  accepting  a  negotiable  bill  of  exchange 
in  their  names,  as  agent,  in  payment  for  such  supplies.  The  court,  in 
their  opinion,  remark,  there  is  good  reason  for  this  distinction.     In 


,  liable  to  no  on-"  actual 

.>n  may  be  inquiv'  'ill  the 

,;  the  sale  may  be  shown ;  an  ments 

sted;  all  which  would  be  prei  -■  ^r- 

''  by  the  endorser  on  an  accept 
::is  Colleg-e,  2^  Pick.  T    -  a 

cnden,  of  Portland,  .':  i- 

for  the  defendants,  ;;e 

.Rowing  out  of  some  i.  d 

ome  controversy,  Mr.  Ft 
.  -..I.  Ingersoll  one  .>'■  'wo  hui... 
flf  a  large  high\\  -  iStead  o: 

Jen  gave  the  notu  .n  suii;.  -  The  c>..-i' 
vithout  authority  and  was  not  binding  ';- 

ity  to  an  agent  to  collect  debts,  and  to  v- 
'  authorize  him  to  bind  his  princip 
■:h  an  authority  must  be  expressly  o 
from  the  nature  of  the  business  to  be  done. 
^  Wend.  R.  496. 

He  evidence  shows  satisfactorily  that  W.  R. 
t  tor  the  defendant.     That  in  that  capacity  he 
at  the  mouth  of  the  Piscataquis  ;  that  he  paid  the 
'      ty;  that  he  gave  permits  for  cutting 
•         ■  :  iS  in  Howland  and  Edinburgh,  and 
herefor;  that  he  settled  and  received  pay  for 
.''  'plant's  land  without  authority.   Then'  -a-i - 
K:casion  he  gave  a  note  to  the  t' 
r  Hi,e  defendant.  There  is  no  evid  - 
'thority  to  give  that  note,  or  that  ' 
n:s  existence  till  long 
?d  it  as  a  valid  note  :. 
miction  between  autb  .1  agent  to 

'  ;  to  permit  parties  1  i  :^f  on  his 

therefor;  to  claim  ii  .1  tres- 

.er  into  contracts  for  ■  ■-'^.cr- 

le  principal  was  to  ,  ,.y 

—  "  •  :  r- 

■!r 
,'erty;  in.  the  oUjtr,  \v._  ,1- 

-s  enterprises  whic'ti 
:ithority  to  t- 
....  iiw.  be  implied  fr' 
.1  acts  of  the  former 

■■)e 
■>  the  a^^v  -o  iuiplica- 


oii.njiij  a.iK.1  wm  test  luc  picUii- 


th.- 


ontrac.i- 


any  an- 
iioney — 
Such  an 

'uisine^s 


>.vi.;i    V      act     Oi 

ith  authority 


10  DU)-   i 
1  this  ca 
(o  make 

uthorit}- 
•:ee  case 
Drew, 

oster,  3. 
ejected. 


;i  ioreig'n  to  renting' 

tin  definite  purposes, 
iber  V.  Williams  Col - 
<.  424;  Tabor  v.  Can- 

f  could  call  Wil- 


better  e  ',  or  more  universally 

ority  of  tct  for,  and  bind, 

•cm  the;  ,..cli  agent  has  been 

■  the  s;i  al  character  for  that 

and  asitijt  -■   it  necessary,  in 

Lyent,  that  h-  have  done  before 

'  -it  in  qucoi.  u.     if  he  have  usualh- 
■  aracter  and  effect,  with  the  assent 
Thus  it  was  held  in  Bank  of  Lake 
:  e,  by  articles  of  co-partnership,  one 
•1,  but  his  authority,  as  thereby  de- 
lation acceptances.    It  was  proved, 
agent  of  the  firm,  and  with  their 
habit  of  drawing  bills  and  maV^ 
though  the  spoci^c  act  of  ac, 
",  as  one  -•  been  usuall) 

!  power,  usage  of  put- 

r,  in  all  other  shapes,  was  the 
M  i<-.  r ■.'<■■■  ;in  inference  in  thr 


'' :'']  in 
ri,v^edl 
the  nec' 
making  :: 
in  their  nam 


i.i  IK.'  a  si'ivii'i   act  can  be  nn- 
i-acter  and  ciVect.    Thus  it  wa; 
that  an  agent  who  is  • 
i;  her  for  sea  and  pure!.  . 
■i  the  owner- 
..  bill  of  exchai:  .. 
en  supplies.  The  court,  in 
v,  f  t],;.,  'listinction.     "i"" 


CONTRACTS.  189 

a  contract  of  sale,  the  owners  can  be  liable  to  no  one  but  the  actual 
sellers  of  the  goods ;  the  consideration  may  be  inquired  into ;  all  the 
circumstances  attending  the  sale  may  be  shown ;  and  all  payments 
and  offsets  may  be  adjusted ;  all  which  would  be  precluded  if  an  ac- 
tion could  be  maintained  by  the  endorser  on  an  acceptance. 

In  Webber  v.  Williams  College,  23  Pick.  R,  302,  which  was  on  a 
note  given  by  Mr.  Fessenden,  of  Portland,  as  agent  for  the  defend- 
ants. Mr.  F.  was  agent  for  the  defendants,  at  Portland,  to  manage 
some  interests  of  theirs  growing  out  of  some  eastern  lands.  To  avoid 
an  apprehended  troublesome  controversy,  Mr.  Fessenden  was  author- 
ized to  advance  to  a  Mr.  Ingersoll  one  or  two  hundred  dollars,  to  as- 
sist him  in  paying  off  a  large  highway  tax.  Instead  of  advancing  the 
money,  Mr.  Fessenden  gave  the  note  in  suit.  The  court  held  that 
the  note  was  made  without  authority  and  was  not  binding  on  the  de- 
fendants. 

A  general  authority  to  an  agent  to  collect  debts,  and  to  pay  and 
receive  money,  does  not  authorize  him  to  bind  his  principal  by  nego- 
tiable instruments ;  such  an  authority  must  be  expressly  conferred  or 
reasonably  implied  from  the  nature  of  the  business  to  be  done. 
Rossiter  v.  Rossiter,  8  Wend.  R.  496. 

In  the  case  at  bar,  the  evidence  shows  satisfactorily  that  W.  R. 
Miller  was  an  agent  for  the  defendant.  That  in  that  capacity  he 
carried  on  his  mills,  at  the  mouth  of  the  Piscataquis ;  that  he  paid  the 
taxes  on  the  defendant's  property ;  that  he  gave  permits  for  cutting 
timber  on  the  defendant's  lands  in  Rowland  and  Edinburgh,  and 
collected  the  stumpage  therefor ;  that  he  settled  and  received  pay  for 
lumber  cut  upon  the  defendant's  land  without  authority.  There  was 
also  evidence  that  on  one  occasion  he  gave  a  note  to  the  town  of 
Rowland,  as  the  agent  of  the  defendant.  There  is  no  evidence,  how- 
ever, that  he  had  any  authority  to  give  that  note,  or  that  the  defend- 
ant had  any  knowledge  of  its  existence  till  long  after  it  was  given, 
or  that  he  has  ever  recognized  it  as  a  valid  note  against  him. 

Now  there  is  a  wide  distinction  between  authority  in  an  agent  to 
carry  on  mills  for  the  owner ;  to  permit  parties  to  cut  timber  on  his 
lands,  and  collect  stumpage  therefor;  to  claim  indemnity  from  tres- 
passers ;  and  authority  to  enter  into  contracts  for  carrying  on  lumber- 
ing operations,  by  which  the  principal  was  to  be  obligated  to  pay 
large  sums  of  money.  In  the  one  case  the  agent  would  be,  in  differ- 
ent modes,  collecting  for  his  principal  money  arising  from  the  use  or 
proceeds  of  the  sales  of  his  property ;  in  the  other,  he  would  be  em- 
barking that  principal  in  business  enterprises  which  might  involve 
large  pecuniary  liabilities  and  losses.  Authority  to  embark  in  enter- 
prises of  the  latter  description  could  not  be  implied  from  an  admitted 
agency,  with  authority  to  perform  acts  of  the  former  character. 

As  to  the  testimony  of  the  witness,  Muzzey,  taken  in  connection 
with  the  letter  of  the  defendant,  it  restricts  rather  than  enlarges  the 
authority  of  W.  R.  Miller,  as  the  agent  of  the  defendant.  No  implica- 


190  LIABILITY    TO   THIRD    PERSONS. 

tion  of  authority  to  enter  into  the  contract  in  question  can  arise  from 
that  transaction. 

The  declarations  of  W.  R.  Miller  were  properly  rejected.  There 
must  be  proof  of  agency  before  the  declarations  of  the  alleged  agent 
are  admissible  in  any  case ;  and  then  only  such  declarations  as  are 
strictly  part  of  the  res  gestce.  There  being  no  proof  of  authority  in 
the  agent  to  perform  the  principal  act,  his  declarations,  while  in  the 
performance  of  that  act,  are,  as  matter  of  course,  inadmissible. 

It  may  well  be  doubted  whether,  by  the  terms  of  the  instrument  it- 
self, any  persons  other  than  the  plaintiff  and  William  R.  Miller  are 
bound  by  it.  But  as  this  point  was  not  raised  in  the  arguments  of 
the  counsel,  we  express  no  opinion  upon  it.   The  nonsuit  must  stand. 

Exceptions  overruled.^ 


STAR  LINE  OF  STEAMERS  v.  VAN  VLIET. 
1880.     Supreme  Court  of  Michigan.     43  Mich.  364. 

Assumpsit.    Defendant  brings  error. 

Graves,  J. — The  Star  Line  of  Steamers  is  a  corporation  organized 
under  Chapter  83  of  the  Compiled  Laws,  and  at  a  meeting  of  the 
stockholders,  two  of  their  number,  Messrs.  Toulmin  and  Ketchum, 
were  appointed  a  committee  to  employ  two  expert  accountants  to 
investigate  the  affairs,  books  and  accounts  of  the  company,  and  re- 
port the  results.  Mr.  Toulmin  engaged  the  defendant  in  error  and 
agreed  that  his  compensation  should  be  graduated  by  allowing  a 
certain  sum  per  hour  for  himself  and  a  certain  other  amount  for 
an  assistant.  At  least  such  seems  to^  be  a  fair  construction  of  the 
arrangement,  and  it  is  the  construction  which  the  court  below  put 
upon  it.  The  company  were  aware  he  was  prosecuting  the  busi- 
ness and  made  no  objection,  and  Mr.  Ketchum  expressed  his  assent 
and  concurrence  by  joining  with  Mr.  Toulmin  in  a  written  approval 
and  acceptance  of  what  had  been  done  under  the  employment.  The 
company  refusing  to  pay,  the  defendant  in  error  sued  and  was  al- 
lowed to  recover  the  price  promised. 

Errors  are  assigned  on  several  exceptions  to  evidence,  but  none  are 
considered  of  sufficient  merit  to  require  discussion. 

The  court  assumed  that  the  resolution  appointing  the  committee 
was  a  valid  act  of  the  corporation,  and  this  is  excepted  to.  The  court 
did  not  err.  The  resolution  was  shown  from  the  records  of  the  cor- 
poration, and  there  was  no  evidence  tending  to  impeach  it.  It 
purported  to  be  a  legal  expression  of  the  sense  of  the  body  of  stock- 
holders, and  so  stood  upon  the  corporation  records. 

^  An  agent  employed  by  a  railroad  company  to  solicit  passengers  cannot  bind 
the  company  by  a  contract  to  receive  or  transport  freight.  Taylor  v.  Chicago 
&  N.  W.  R.  R.  Co.,  74  111.  86. 


rally,  nr)  doubt,  a  stockliolUex^s'  rn-.  ■ 
contract  on  such  subjects,  the  or 
..  /.ii  the  directors ;  but  as  the  purpose  'asr  to  in- 

\  .-li'rate  what  had  been   done  undei    .  ..  ■   of  the 

■  :        rs,  it  was  competent  for  the  holders  of  :  ^tock 

to  do  what  was  done.     Conip.  L.,  §  2682.     T  '  '^^ 

which  the  corporation  can  urge  an  intendmenl 
<!ic  ■-(>-;. lution,  and  arbitrarily  den  ilarity  a. 

ot  •';'.   lacts  presented,  every  pr<  is  the  < 

was  no  offer  of  proof  that  the  sto^  present  i 

not  hold  a  majority  of  the  stock  .  vas  sonv 

to  show  that  the' directors  •■  f  the  proceeding; 

quiesced. 

The  court  left  it  to  the  jui  ther  Ketchum,  r- 

member  of  thr-  committee,  concin  rca  ::a  \  an  Vliet's  em;' 
they  found  il'-ii-  he  did.     There  was  evidence  warrar, 
mission  only  so,  the  proposition  scarcely  admitLcd  au) 

answer  vsv  gave. 

The  :  red  on  the  committee  implied  a  right  to  agree 

upr.n  ''  .,u  paid  for  the  service.     The  committee  were  to 

en  ;  The  end  thus  required  implied  authority  to  use  the 

Pi  ■  ''f  could  not  have  been  supposed  that  competent 

;ic  '  found  to  enter  on  such  an  undertaking  without 

--(-  ing  the  rate  of  compensation.    The  ar- 

r:\:-  ace  Vv-as  reasonable.    If  none  had  been 

1:  :_  ..n  error  no  doubt  might  have  hired  a  clerk,  and 

p-  I  why  it  was  not  proper  to  adjust  the  coiivoc-! ^ri- 

ch help.    Without  it  the  expense  to  the 
^-cn  great-"  -'''•      '■'  -    -  -^^  ^.-.-.i-ti- 

^iriy  submitted  and  no  ground  is  seen  I'j:  dis'airu- 

■e  affirmed  with  costs. 
.  urred.^ 

ilsp.  6s,  it  was  decided  that  an  rjthority  t^  r^y  ?~ri 
power  to  carry  the  award  into  effer' 

,  T2  La.  Ann.  159,  it  was  held  ''  ■    sue 

laims"  inchided  the  power  t  bring 

■se  dutv  it  is  to  collect  mon  '. 


Life  Ass.  Soc.  v.  Lestt 


LIACIT.T': 


dcciara  •   jected.     Th': 

vi  prool  :e  alleged  agt 

inissible  arations  as  ;■ 

i)art  <>'■  ''f  authority 

■    ;a:  ii'  lis,  while  in  t! 

.  v-vjiirsc,  iiiadmissible. 

(■  terms  of  the  instrument  '■ 

'     ''Hliam  R.  Miller  a 

1  the  arguments  ■ 

nonsuit  must  star. 


LIET. 
-^  Mich.  364. 


a  corporation  organize.; 
ad  at  a  meeting  of  th'. 
Toulmin  and  Ketchmii, 
'■•  expert  accountants  to 
<i  the  company,  and  re- 
'•  *"  M';int  in  error  an^i 
;;  ">  by  allowing   ■>. 
.'->  other  amount  f 
'   construction  of  ' 
.  which  the  court  below  ]> 
"Hs  prosecuting  the  bi; 
.-.m  expressed  his  assi 
:  a  written  apprc.- 
employment.   'J" 
ed  and  was 

■,e,  but  none  r 

c  the  commit: 

Ai;ii  .a,  ■  !  to.     The  CO; 

r  err.    T:  )rds  of  the  c.- 

and   tlir  rnpeach   it. 

io  be  a  -  body  of  stoc 


iigers-  cannot  ! 
raylor  v.  Chic. 


CONTRACTS.  I9I 

Generally,  no  doubt,  a  stockholders'  meeting  would  not  be  author- 
ized to  contract  on  such  svibjects,  the  ordinary  management  being 
with  the  directors ;  but  as  the  purpose  here  was  in  part  at  least  to  in- 
vestigate what  had  been  done  under  the  superintendence  of  the 
directors,  it  was  competent  for  the  holders  of  a  majority  of  the  stock 
to  do  what  was  done.  Comp.  L.,  §  2682.  There  is  no  ground  on 
which  the  corporation  can  urge  an  intendment  against  the  validity  of 
the  resolution,  and  arbitrarily  deny  its  regularity  and  force.  In  view 
of  the  facts  presented,  every  presumption  is  the  other  way.  There 
was  no  offer  of  proof  that  the  stockholders  present  at  the  meeting  did 
not  hold  a  majority  of  the  stock,  and  there  was  some  evidence  tending 
to  show  that  the  directors  were  aware  of  the  proceeding  and  ac- 
quiesced. 

The  court  left  it  to  the  jury  to  say  whether  Ketchum,  the  second 
member  of  the  committee,  concurred  in  Van  Vliet's  employment,  and 
thev  found  that  he  did.  There  was  evidence  warranting  this  sub- 
mission ;  and  not  only  so,  the  proposition  scarcely  admitted  any  other 
answer  than  the  jury  gave. 

The  power  conferred  on  the  committee  implied  a  right  to  agree 
upon  the  price  to  be  paid  for  the  service.  The  committee  were  to 
employ  experts.  The  end  thus  required  implied  authority  to  use  the 
proper  means,  and  it  could  not  have  been  supposed  that  competent 
accountants  would  be  found  to  enter  on  such  an  undertaking  without 
some  understanding  concerning  the  rate  of  compensation.  The  ar- 
rangement for  clerical  assistance  was  reasonable.  If  none  had  been 
made  the  defendant  in  error  no  doubt  might  have  hired  a  clerk,  and 
no  reason  is  perceived  why  it  was  not  proper  to  adjust  the  compensa- 
tion with  an  eye  to  such  help.  Without  it  the  expense  to  the  company 
would  probably  have  been  greater  still.  It  is  not  worth  while  to 
discuss  other  points. 

The  case  was  fairly  submitted  and  no  ground  is  seen  for  disturb- 
ing the  result. 

The  judgment  should  be  affirmed  with  costs. 

The  other  justices  concurred.^ 

^  In  Dawson  v.  Lavvley,  4  Esp.  65,  it  was  decided  that  an  authority  to  pay  an 
award  includes  the  power  to  carry  the  award  into  effect  by  executing  a  re- 
lease. 

In  Morgan  v.  Brown,  12  La.  Ann.  159,  it  was  held  that  an  authority  to  "sue 
or  otherwise  collect  all  claims"  included  the  power  to  employ  counsel  to  bring 
suit  on  the  claims. 

"The  act  of  an  agent,  whose  duty  it  is  to  collect  money  due  his  principal, 
is  authorized  only  to  resort  to  such  proceedings  as  are  usual  and  legitimate 
for  the  purpose.  Civil  proceedings  would  be  deemed  such,  but  not  the  use  of 
criminal  process.  This  is  not  appropriate  or  justified  in  order  to  collect  a 
debt."  James,  C.  J.,  in  Equitable  Life  Ass.  Soc.  v.  Lester  (Tex.),  no  S.  W. 
499,  SOI. 


192  LIABILITY   TO   THIRD   PERSONS. 

TERRE  HAUTE  and  INDIANAPOLIS  R.  R.  CO.  v. 
McMURRAY. 

1884.     Supreme  Court  of  Indiana.     98  Ind.  358. 

Elliott,  C.  J. — The  facts  in  this  case  are  simple,  and  lie  within 
a  narrow  compass ;  but  the  questions  of  law  are  important  and  diffi- 
cult. 

Frankfort  is  a  way  station  in  the  line  of  appellant's  road,  distant 
many  miles  from  the  principal  offices  of  the  company  and  from  the 
residences  of  its  chief  officers.  At  this  station  at  one  o'clock  of  the 
morning  of  July  2,  1881,  Thomas  Coon,  a  brakeman  in  the  service  of 
the  appellant,  had  his  foot  crushed  between  the  wheel  of  a  car  of 
the  train  on  which  he  was  employed  as  a  brakeman,  and  a  rail  of  the 
track.  The  injury  was  such  as  demanded  immediate  surgical  at- 
tention. The  conductor  of  the  train  requested  the  appellee,  who  was 
a  surgeon,  residing  in  the  town  of  Frankfort,  to  render  the  injured 
man  professional  aid,  and  informed  the  appellee  that  the  company 
would  pay  him  for  such  services.  At  the  time  the  accident  happened, 
and  at  the  time  the  surgeon  was  employed,  there  was  no  officer  su- 
perior to  the  conductor  at  the  town  of  Frankfort.  There  was  at  the 
station  a  resident  agent  who  had  full  knowledge  of  the  injury  to 
Coon  and  of  appellee's  employment.  This  agent  was  in  telegraphic 
communication  with  the  principal  officers  of  the  company,  but  did 
not  communicate  with  them.  The  trial  court  held  the  appellant 
liable  for  the  reasonable  value  of  the  services  rendered  by  the  ap- 
pellee, and  awarded  him  $100. 

In  ordinary  cases,  a  conductor  or  other  subordinate  agent  has  no 
authority  to  employ  surgical  assistance  for  a  servant  of  the  corpora- 
tion who  receives  an  injury  or  becomes  ill.  We  do  not  doubt  that 
the  general  rule  is  that  a  conductor  has  no  authority  to  make  con- 
tracts with  surgeons,  and  if  this  principle  governs  all  cases  the  dis- 
cussion is  at  an  end ;  but  we  do  not  think  it  does  rule  every  case,  for 
there  may  be  cases  so  strongly  marked  as  to  constitute  a  class  in 
themselves  and  one  governed  by  a  different  rule. 

The  authority  of  an  agent  is  to  be  determined  from  the  facts  of  the 
particular  case.  Facts  may  exist  which  will  greatly  broaden  or 
greatly  lessen  an  agent's  authority.  A  conductor's  authority  in  the 
presence  of  a  superior  agent  may  dwindle  into  insignificance,  while 
in  the  absence  of  a  superior  it  may  become  broad  and  comprehensive. 
An  emergency  may  arise  which  will  require  the  corporation  to  act 
instantly,  and  if  the  conductor  is  the  only  agent  present,  and  the 
emergency  is  urgent,  he  must  act  for  the  corporation,  and  if  he  acts 
at  all,  his'acts  are  of  just  as  much  force  as  that  of  the  highest  officer 
of  the  corporation.  In  this  instance  the  conductor  was  the  highest 
officer  on  the  ground ;  he  was  the  sole  representative  of  the  corpora- 
tion;  he  it  was  upon  whom  devolved  the  duty  of  representing  the 


U    '.Mie    VI    ITi 

tiry  to  the  i 

.jevicr 

.  or  it 

i.ses  where  the  c\  ;- 

lion  that  m  the  ^u.-  'y 

here  the  train  is  di^  - 

i   .  where  the  conductor  niu-  .<  '2  me 

•,  for  the  time,  and  under  thi  .)f  the 

'   ",  and  if  he  be  ■■•-^- 

!ie  exigency,  be  i^ 
examples  will  prove  this  to  be  true. 
a  train  is  brought  to  a  halt  by  the  ■.>:■ 
'V  is  a  mechanic  who  can  repair  ; 
.:  to  proceed  on  its  way,  may  not  ... 
;?    Again,  suppose  a  bridge  is  disco  > 
re  are  timbers  at  a  neighboring  mill  Vi'irci.  v.  jj; 
not  the  conductor,   in  behalf  of  his  principal, 
the  timber  to  the  bridge?     Once  more,  s" 
uTomotive  to  be  disabled,  and  that  it  is  nc 
train  to  avoid  danger,  and  there  is  nearby  a  corn- 
s' not  the  conductor  employ  him  to  take  the  train 
these  examples  we  mean  to  include,  as  a  silent 
there  is  an  emergency,  allowing  no  time  for  com- 
oerior  officers,  and  requiring  immediate  action 
>  of  pressing  ei' 
on  the  highest  r^ 
St  be  true  that  he  may  do,  in  the  cmeri 
present,  might  do.    If  the  conduci''^- 
esent  the  company,  then  it  is  inc 
"  -  of  the  emergency,  and  6 

est  officer.     The  position 
:>  with  it.    T  'fity  inci ' 

ly,  astheer.  unperat; 

may  justly  do,  that  there  are  occ;  e 

•^■'d  the  necessity  so  pressing,  th; 
lie  representative  of  the  com 

rent  and  immediate  de 

h  an  emerofencv  as  v 
.ui  in  th.         ■■-'    ■  ,t 

"0']  nror 


Iv  of  tht 

.ii-u  as  r-  ■ 
om  pen 


Ti:.ivKh.  11 


y. 


■.ult. 


morning 

the  :v'r^ 
the  1-. 


.;-   «I1,  his  act- 
of  the  corpora  I  n 
officer  on  the  gT' 
tion;  he 


ri'^  Tnd.  358. 

.-,  >,,!,-:-.   aiv,  .-iiuj.ji.,    iiid  lie  within 
as  of  law  are  important  and  diffi- 

ihc.  line  of  appellant's  road,  distant 

offices  of  the  coiripany  and  from  the 

A.t  this  station  at  one  o'clock  of  the 

"oon,  a  brakema!!  in  the  service  of 

J  K^i;.r.,rv  tfie  whccl  of  a  car  of 

nan,  and  a  rail  of  the 

;•-  ii.e'v  'iate  surgical  at- 

iT-nin  r<  I'pellee,  who  was 

>  render  the  injured 

■vC  that  the  company 

ie  the  accident  happened, 

',  th€re  was  no  officer  su- 

wikfort.    There  was  at  the 

'    '  ^^  of  the  injury  to 

rts  in  telegraphic 

:.  company,  but  did 

.  held  the  appellant 

-ervices  rendered  by  the  ap- 


ipai  oth. 
The  i: 


■V  other  subordinate  agent  has  no 
mce  for  a  servant  of  the  corpora- 
comes  ill.  We  do  not  doubt  that 
■>r  has  no  authority  to  make  con- 
'-incinle  governs  all  cases  the  dis- 
le  every  case,  for 
titnte  a  class  in 

.^  — ...u  from  the  facts  of  the 
lich  will   greatly  broaden  or 

' ■    "'.or's  authority  in  the 

:  insignificance,  while 
]  and  comprehensive. 
-.c'  corporation  to  act 
unly  agent  present,  and  the 
■'\c  corporation,  and  if  he  acts 
that  of  the  highest  officer 
v>nductor  was  the  highest 
resentative  of  the  corpora- 
duty  of  representing  the 


CONTRACTS.  193 

corporation  in  matters  connected  within  the  general  Hne  of  his  duty 
in  the  sudden  emergency  which  arose  out  of  the  injury  to  the  fellow- 
servant  immediately  under  his  control ;  either  he,  as  the  superior 
agent  of  the  company,  must,  in  such  cases,  be  its  representative,  or  it 
has  none.  There  are  cases  where  the  conductor  is  the  only  repre- 
sentative of  the  corporation  that  in  the  emergency  it  can  possibly 
have.  There  are  cases  where  the  train  is  distant  from  the  supervi- 
sion of  superior  officers,  where  the  conductor  must  act,  and  act  for  the 
company,  and  where,  for  the  time,  and  under  the  exigencies  of  the 
occasion,  he  is  its  sole  representative,  and  if  he  be  its  only  repre- 
sentative, he  must,  for  the  time  and  the  exigency,  be  its  highest  rep- 
resentative. Simple  examples  will  prove  this  to  be  true.  Suppose, 
for  illustration,  that  a  train  is  brought  to  a  halt  by  the  breaking  of  a 
bolt,  and  that  nearby  is  a  mechanic  who  can  repair  the  broken  loolt 
and  enable  the  train  to  proceed  on  its  way,  may  not  the  conductor 
employ  the  mechanic?  x\gain,  suppose  a  bridge  is  discovered  to  be 
unsafe,  and  that  there  are  timbers  at  a  neighboring  mill  which  will 
make  it  safe,  may  not  the  conductor,  in  behalf  of  his  principal, 
employ  men  to  haul  the  timber  to  the  bridge?  Once  more,  suppose 
the  engineer  of  a  locomotive  to  be  disabled,  and  that  it  is  necessary 
to  at  once  move  the  train  to  avoid  danger,  and  there  is  nearby  a  com- 
petent engineer,  may  not  the  conductor  employ  him  to  take  the  train 
out  of  danger?  In  these  examples  we  mean  to  include,  as  a  silent 
factor,  the  fact  that  there  is  an  emergency,  allowing  no  time  for  com- 
municating with  superior  officers,  and  requiring  immediate  action. 
If  it  be  true  that  there  are  cases  of  pressing  emergency  where  the 
conductor  is  on  the  special  occasion  the  highest  representative  of  the 
company,  then  it  must  be  true  that  he  may  do,  in  the  emergency,  what 
the  chief  officer,  if  present,  might  do.  If  the  conductor  is  the  only 
agent  who  can  represent  the  company,  then  it  is  inconceivable  that 
he  should,  for  the  purposes  of  the  emergency,  and  during  its  exist- 
ence, be  other  than  the  highest  officer.  The  position  arises  with  the 
emergency,  and  ends  with  it.  The  authority  incident  to  the  position 
is  such,  and  such  only,  as  the  emergency  imperatively  creates. 

Assuming,  as  we  may  justly  do,  that  there  are  occasions  when  the 
exigency  is  so  great,  and  the  necessity  so  pressing,  that  the  conductor 
stands  temporarily  as  the  representative  of  the  company,  with  au- 
thority adequate  to  the  urgent  and  immediate  demands  of  the  occa- 
sion, we  inquire  what  is  such  an  emergency  as  will  clothe  him  with 
this  authority  and  put  him  in  the  position  designated.  Suppose  that 
a  locomotive  is  overturned  upon  its  engineer,  and  he  is  in  immediate 
danger  of  great  bodily  harm,  would  it  not  be  competent  for  the  con- 
ductor to  hire  a  derrick,  or  a  lifting  apparatus,  if  one  were  near  at 
hand,  to  lift  the  locomotive  from  the  body  of  the  engineer?  Surely 
some  one  owes  a  duty  to  a  man.  imperiled  as  an  engineer  would  be  in 
the  case  supposed,  to  release  him  from  peril,  and  is  there  any  one 
13 — Reinhard  Cases. 


194  LIABILITY    TO   THIRD   TERSONS. 

upon  whom  this  duty  can  be  so  justly  put  as  upon  his  employer? 
The  man  must,  in  the  case  supposed,  have  assistance,  and  do  not  the 
plainest  principles  of  justice  require  that  the  primary  duty  of  yield- 
ing assistance  should  devolve  upon  the  employer  rather  than  on 
strangers.  An  employer  does  not  stand  to  his  servants  as  a  stranger, 
he  owes  them  a  duty.  The  cases  all  agree  that  some  duty  is  owing 
from  the  master  to  the  servant,  but  no  case  that  we  have  been  able 
to  find  defines  the  limits  of  this  duty.  Granting  the  existence  of 
this  general  duty,  and  no  one  will  deny  that  such  a  duty  does  exist, 
the  inquiry  is  as  to  its  character  and  extent.  Suppose  the  axle  of  a 
car  to  break  because  of  a  defect,  and  a  brakeman's  leg  to  be  mangled 
by  the  derailment  consequent  upon  the  breaking  of  the  axle,  and  that 
he  is  in  imminent  danger  of  bleeding  to  death  unless  surgical  aid  is 
summoned  at  once,  and  suppose  the  accident  to  occur  at  a  point 
where  there  is  no  station  and  when  no  officer  superior  to  the  con- 
ductor is  present,  would  not  the  conductor  have  authority  to  call  a 
surgeon?  Is  there  not  a  duty  to  the  mangled  man  that  some  one 
must  discharge?  and  if  there  be  such  a  duty,  who  owes  it,  the  em- 
ployer or  a  stranger?  Humanity  and  justice  unite  in  affirming  that 
some  one  owes  him  this  duty,  since  to  assert  the  contrary  is  to  affirm 
that  upon  no  one  rests  the  duty  of  calling  aid  that  may  save  life.  If 
we  concede  the  existence  of  this  general  duty,  then  the  further  search 
is  for  the  one  who  in  justice  owes  the  duty,  and  surely,  where  the 
question  comes  between  the  employer  and  a  stranger,  the  rule  must 
be  that  it  rests  upon  the  former. 

Authorities  upon  the  question  we  are  discussing  are  far  from 
abundant.  In  the  case  of  Marquette,  etc.,  R.  R.  Co.  v.  Taft,  28  Mich. 
289,  a  laborer  in  the  service  of  the  company  was  struck  and  injured 
by  one  of  its  trains,  and  the  yardmaster  and  the  superintendent  em- 
ploy a  surgeon,  and  the  court  divided  on  the  question  of  the  com- 
pany's liability.  Graves  and  Campbell,  JJ.,  denying  its  liability  and 
Cooley,  J.,  and  Christiancy,  C.  J.,  affirming  that  it  was  liable  to  the 
surgeon.  One  opinion  was  written  by  Graves,  J.,  and  proceeds  on  the 
broad  ground  that  no  officer  of  the  company  could  bind  it  to  pay  for 
surgical  services  rendered  an  employe.  That  case  is,  however,  dis- 
tinguishable from  the  present,  even  upon  the  theory  adopted  in  the 
opinion  of  Judge  Graves,  for  in  this  case  there  was  an  immediate 
necessity  for  surgical  aid,  while  in  the  one  cited  there  is  not  shown 
to  have  been  any  such  necessity.  Judge  Cooley's  opinion  is  a  model 
of  judicial  reasoning,  and  forcibly  maintains  the  duty  of  the  railway 
companies  to  provide  surgical  aid  for  its  servants  in  cases  of  acci- 
dents incident  to  their  employment.  In  one  place  he  says :  "We 
think  it  their  duty  to  have  some  officer  or  agent,  at  all  times,  compe- 
tent to  exercise  a  discretionary  authority  in  such  cases,  and  that  on 
grounds  of  public  policy  they  should  not  be  suffered  to  do  other- 
wise." At  another  place  he  says :  "We  shall  not  stop  to  prove  that 
there  is  a  strong  moral  obligation  resting  upon  any  one  engaged  in 


■cessary  io 
1  accident 
1  in  his  emp'  be  too 

.V  argument."     .v.:  ..^  anion, 

ble,  isthis:  "There  can  I  Nvithin 

iiebody's  employment, for  a  i,  cause 

s  injured  in  carriage  or  run  «  to  be 

the  attention  proper  and  ' 

/ed  to  do  as  much  for  the 
s  m  Hke  manner  injured,  but  all  pt  -ervice 

■'  rbidden  to  incur  on  its  behalf  ?^  vciiiil 

jcessary  to  remove  him  out  of  the 
-even  to  corr       '      •  to  his  house.  ■■■'. 
a  threateni;  : — then  if  such  ; 

itate  to  appi)  it,  even  though  it  be  iir, 
ought  not  to  be  the  law,  and  that  no  ; 
;iu  hazardous  nature  ought  to  be  suffered  to  be 
for  the  major  part  of  the  time  empowered  to 
rm  a  duty  which,  at  least  on  moral  grounds 
])erative.    But  we  do  not  think  such  is  the  law. 
)f  Northern  Central  R.  Co.  v.  State,  29  Md.  420,  it 
•  was  the  duty  of  agents  in  charge  of  a  railroad  traiij 
one  injured  by  a  collision,  and  to  do  it  with  a  proper 
and  the  laws  of  humanity, 
alker  v.  Great  Western  R.  W.  Co.,  L;  R.  2  Ek  • 
eneral  manager  of  the  company  had  authority 
for  a  servant  injured  in  the  company's  serv-- 
the  course  of  the  argument,  inquired  :  "M-  i 

a  man  who  has  both  his  legs  hi   ' 
See  36  Law  Journal  (C.  L.)  t  ^ 
.  Union  Manufacturing  Co.,  42  C 
-nsiness  manager  of  a  manufacture 
pploy  surgical  aid  for  a  lad  who  had  received  an  i?' 
ice. 

etc.,  R.  R.  Co.  V.  Reisner,  18  Kan.  4  olding 

rneral  agent  of  a  railroad  "  zed  to 

on  to  attend  one  of  the  br  in  the 

uiy.    The  court  said,  iu  tlv  inion  : 

le  general  agent  of  the  c  'Iv  the 

Ai."    This  is  necessarily  true  i;  ni 

•u-t   r.-.r  f!i,-  corporation,  and  -  ::e 

-st  agent  of  the  corp  I- 

;ieral  agent  of  the  COT : 

'.sent,  only  bv  its  asre*^ 


tUc  COipvy'i'tii 


LIAHTT.TI 

.  n-.r,i,  his  employer; 

1  he  1  and  do  not  the 

p]  iluty  of  yield- 

i  irsHier  than  on 

'.  stranger, 

.}-  is  owing 

•  been  able 

xistence  of 

t'  aty  does  exist, 

ti  e  the  axle  of  a 

c.  to  be  mangled 

by  lii  :  axle,  and  that 

h*^  i«  surgical  aid  is 

cur  at  a  point 
lor  to  the  con- 
11.  •  lority  to  call  a 

~;urc,c(  that  some  one 

must  <  sves  it,  the  em- 

p].    ;  affirming  that 

S'.  ary  is  to  affirm 

t;;  ly  save  life.  If 

further  search 
i<  \  burely,  where  the 

q;..  'in-er.  the  ru!e  nuist 

b>  . 

r     1,  .i  ^'.  !  .>:^ii  It:     cut.     iai      i]i_.iiii 

R.  R.  Co.  V.  Taft,  28  Mich. 

struck  and  injured 

superintendent  ern- 

icd  on  the  question  of  the  com- 

11  TT..  denying  its  liability  and 

hat  it  was  liable  to  the 

.  J.,  and  proceeds  on  the 

could  bind  it  to  pay  for 

'.e.    That  case  is,  however,  dis- 

'  upon  tb''  theor>'  adopted  in  the 

an  immediate 

w  is  not  shown 

opinion  is  a  model 

, .  .-  duty  of  the  railway 

or  its  servants. in  cases  of  acci- 
''n  one  place  he  says :  "We 
t'  r  agent,  at  all  times,  compe- 

te "        -^s,  and  that  o 

c;  _  1  to  do  Othc; 

, .  •  •         \    ,  •  Avdli  not  stop  to  prove  that 

•;..i.    1-    ;  .  !>^  upon  any  one  euea^ed  in 


CONTRACTS.  195 

a  dangerous  business,  to  do  what  may  be  immediately  necessary  to 
save  life  or  prevent  an  injury  becoming  irreparable,  when  an  accident 
happens  to  a  person  in  his  employ.  We  shall  assume  this  to  be  too 
obvious  to  require  argument."  Another  extract  from  this  opinion, 
strongly  applicable,  is  this :  "There  can  be  no  doubt  that  it  is  within 
the  scope  of  somebody's  employment  for  a  railway  company  to  cause 
a  beast  which  is  injured  in  carriage  or  run  over  at  a  crossing  to  be 
picked  up  and  have  the  attention  proper  and  suitable  to  its  case ;  and 
if  no  one  is  authorized  to  do  as  much  for  the  faithful  servant  of  the 
company  who  is  in  like  manner  injured,  but  all  persons  in  its  service 
are  impliedly  forbidden  to  incur  on  its  behalf  any  expense  beyond 
what  may  be  necessary  to  remove  him  out  of  the  way  of  their  trains 
and  machinery — even  to  convey  him  to  his  house,  or  to  save  his  life 
by  binding  up  a  threatening  wound — then  if  such  is  the  law,  the 
courts  must  not  hesitate  to  apply  it,  even  though  it  be  impossible  to 
avoid  feeling  that  it  ought  not  to  be  the  law,  and  that  no  business  of 
this  extensive  and  hazardous  nature  ought  to  be  suffered  to  be  carried 
on  with  no  one  for  the  major  part  of  the  time  empowered  to  recog- 
nize and  perform  a  duty  which,  at  least  on  moral  grounds,  is  so 
obvious  and  imperative.    But  we  do  not  think  such  is  the  law.'' 

In  the  case  of  Northern  Central  R.  Co.  v.  State,  29  Md.  420,  it 
was  held  that  it  was  the  duty  of  agents  in  charge  of  a  railroad  train 
to  take  care  of  one  injured  by  a  collision,  and  to  do  it  with  a  proper 
regard  to  his  safety  and  the  laws  of  humanity. 

It  was  held  in  Walker  v.  Great  Western  R.  W.  Co.,  L.  R.  2  Exch. 
228,  that  the  general  manager  of  the  company  had  authority  to  em- 
ploy a  surgeon  for  a  servant  injured  in  the  company's  service.  Chief 
Baron  Kelly,  in  the  course  of  the  argument,  inquired  :  "]\Iust  a  board 
be  convened  before  a  man  who  has  both  his  legs  broken  can  have 
medical  assistance?"    See  36  Law  Journal  (C.  L.)  123. 

In  Swazey  v.  Union  Manufacturing  Co.,  42  Conn.  556,  the  court 
held  that  the  business  manager  of  a  manufacturing  corporation  had 
authority  to  employ  surgical  aid  for  a  lad  who  had  received  an  in- 
jury in  its  service. 

In  Atlantic,  etc.,  R.  R.  Co.  v.  Reisner,  18  Kan.  458,  the  holding 
was  that  the  general  agent  of  a  railroad  company  was  authorized  to 
employ  a  surgeon  to  attend  one  of  the  brakemen  injured  while  in  the 
service  of  the  company.  The  court  said,  in  the  course  of  the  opinion : 
*Tn  other  words,  the  general  agent  of  the  company  is  virtually  the 
corporation  itself."  This  is  necessarily  true  in  cases  where  the  agent 
is  required  to  act  for  the  corporation,  and  is  also  true  where  the 
agent  who  acts  is  the  highest  agent  of  the  corporation  present,  al- 
though he  may  not  be  the  general  agent  of  the  corporation.  A  corpo- 
ration can  act,  and  can  be  present,  only  by  its  agent,  and  when  it  must 
act  and  must  be  present  at  a  particular  time  and  place,  then  it  is  pres- 
ent, and  does  act,  through  the  highest  agent  who  is  on  the  ground. 
If  the  agent  represents  the  corporation  by  authority,  then,  so  far  as 


196  LIABILITY   TO   THIRD    PERSONS. 

he  represents  it  in  the  particular  manner,  he  is,  in  law,  the  corpora- 
tion, for  through  him  it  is  present  and  acting.     If,  then,  the  con- 
ductor is  the  highest  agent  on  the  ground,  and  the  corporation  must 
and  does  act,  his  act  is  just  as  much  that  of  the  corporation  in  the 
particular   instance,   and   circumscribed   by   the   exigencies    of   the 
special  occasion,  as  though  he  were  much  higher  in  authority.    The 
ruling  in  Atchison,  etc.,  R.  R.  Co.  v.  Reecher,  24  Kan.  228,  is  that 
the  general  superintendent  of  a  railroad  company  has  authority  to 
employ  a  surgeon  to  attend  a  man  injured  while  in  its  service.    The 
cases  of  Toledo,  etc.,  R.  W.  Co.  v.  Rodrigues,  47  111.  188 ;  Toledo,  etc., 
R.  W.  Co.  V.  Prince,  50  111.  26 ;  Indianapolis,  etc.,  R.  R.  Co.  v.  Morris, 
6^  111.  295 ;  Cairo,  etc.,  R.  R.  Co.  v.  Mahoney,  82  111.  73,  cited  and 
relied  on  by  the  appellant,  all  recognize  the  doctrine  that  the  super- 
intendent or  general  agent  has  authority  to  employ  a  surgeon  to 
treat  a  servant  who  has  been  injured.     If  we  are  right  in  our  con- 
clusion that  an  emergency  may  arise  which  will  constitute  a  con- 
ductor, for  the  time  and   the  emergency,  the  chief  officer  of  the 
corporation  present,  then  these  cases  are  strongly  in  support  of  our 
position  that  he  may,  in  cases  of  urgent  necessity,  bind  the  corpora- 
tion by  contracting  with  the  surgeon.    For,  once  it  is  conceded  that 
the  officer  having  a  right  to  represent  the  company  is  the  company,  it 
inevitably  follows  that  his  contract  is  that  of  the  corporation.    These 
cases  do  deny,  however,  in  general  terms,  the  authority  of  a  station 
agent  or  conductor  to  employ  a  surgeon,  but  they  affirm  that  if  the 
superintendent  has  notice  of  the  services  rendered  by  the  surgeon, 
and  does  not  disavow  the  agent's  acts,  the  company  will  be  bound. 
It  is  to  be  noted  that  in  all  of  these  cases  the  company  was  held 
liable  on  the  ground  of  ratification  by  the  superintendent,  and  there 
was  really  no  decision  of  any  other  question  than  that  a  failure  of  the 
superintendent  to  disavow  the  contract  of  the  conductor  or  station 
agent  rendered  the  company  liable.    There  was  no  discussion  of  the 
authority  of  a  conductor  in  cases  of  immediate  and  urgent  necessity. 
The  reasoning  of  the  court  in  these  cases  strongly  indicates  that  the 
act  of  the  superior  officer,  whoever  he  may  be,  on  the  occasion  and 
under  the  emergency,  would  be  deemed  the  act  of  the  corporation 
which  he  assumes  to  represent.    In  the  last  of  these  cases  it  is  said : 
"While  a  railroad  company  is  under  no  legal  obligation  to  furnish 
an  employe,  who  may  receive  injuries  while  in  the  service  of  the 
company,  with  medical  attendance,  yet,  where  a  day  laborer  has,  by 
an  unforeseen  accident,  been  rendered  helpless  when  laboring  to  ad- 
vance the  prosperity  and  the  success  of  the  company,  honesty  and  fair 
dealing  would  seem  to  demand  that  it  should  furnish  medical  as- 
sistance."    If  it  be  conceded  that  honesty  and  fair  dealing  require 
that  medical  assistance  should  be  furnished,  then  the  law  requires  it, 
for  the  law  always  demands  honesty  and  fair  dealing.    It  would  be  a 
cruel  reproach  to  the  law,  and  one  not  merited,  to  declare  that  it 
denied  to  an  injured  man  what  honesty  and  "fair  dealing  require." 


^97 


jt  honesty  and 
'■    ''  would 


;ild  be 
'Id  not 
him  in 
.iTiper- 
•  To., 
'1- 


::r  that  a  man  h:< 
d  of  his 
y  princi 
■  ioi   ihe  servant's  dcaili. 
:he  master  in  ordinary  ca; 
dinary  cases,  where  immediate  ■ 
demanded.  The  case  of  Tucker  \.  .. 
177,  does  decide  that  a  station  agent 

'j:eon,  but  no  elenv:        ''  '  '  '  ^ 

;e  i=;  no  authori'  'S 

.     All  V  I  :s;  "'11  is  o: 

and  the  r]  were  age; 

'■aiiroad  business,  which  of  itself  c 
ity  to  employ  p1i\  -irirwi^.  for  the  ci'. — 
rs'ons  accidental!  1  on  the  roads.  ' 

.  ent  is  true  in  om;...  ;  ^   cases,  but  when  ■ 
odiate  and  pressing  necessity,  a  new  and  p  : 

10  the  case.    A  brief  opinion  was  rendered  Ji} 
.,  R.  W.  Co.,  Gj  Mo.  122,  declaring  that  the  s^ 
ompany  could  not  bind  the  company  for  "a  smaii  'oui 
r.r<\  a  woman  who  had  been  hurt  by  the  locomotive  or 
nt."    It  may  be  said  of  the  last  cited  case  that  '<' 
u.,ie  of  emergency  requiring  prompt  action,  and  f <: ; 
'  ars  in  the  meager  opinion  of  a  very  few  lines,  therc 
no  necessity  for  action.    But  it  is  further  to  be  said  of 
to  be  deemed  as  going  to  the  extent  of  denying  the 
^  the  principal  officers  to  contract  for  medicine  in  a 
,  it  finds  no  support  from  any  adjudge i  ~r.>--     Tht* 
ry  V.  Chicago,  etc.,  R.  R.  Co.,  75  M< 
a  physician  employed  to  render  medic...  .....  . 

ther  purpose,  undertook  to  contract  for  board: 


ant  savs,  in  his  argument:  "d?-i  <.ev- 


counsel 
;ses  the  court  ui 
e,  requires  a  rail? 
without  fault  on  his  part  in 
i  the  company.    Whilst  this  r 
T-ict  justice,  too,  would  at  le; 
roper  means  for  exercising  ti 
;e  cases  wherein  it  ought  to  be  ■ 
hile  the  concession  01: 
>v.  his  answer  is  far  ■ 
.vhile  waiting  for  th 
■.\:>  vAvVi  I'lMT'anltv  , 


■  omote 


:■,  ill  law,  ihe  corpora 
g'.     If,  then,  the  coii- 
l  the  corporation  must 
ihf  ,-, ..1  :^..,r -.t-ion  in  the 
^,   of  the 
iMgiicr  iM  ;;'>!•  I lority.     The 
cher,  24  Kan.  228,  is  that 
y  has  authority  to 
n  its  service.    The 
■ngues,  47  111.  188  ;  Toledo,  etc 
ipolis,  etc.,  R.  R.  Co.  v.  Morri.^ 
Mahoney,  82  111.  73,  cited  an. 
';■■-;     ■.  >  -    ''■  -   loctrine  that  the  supe- 

r.iiendent  o  employ  a  surgeon  to 

t'eat  a  ser\,  ■  right  in  our  con 

elusion  tha!  constitute  a  con 

'juctor,  foi  officer  of  the 

.- 1.  M  .ition  _  support  of  our 

ent  necessity,  bind  the  corpor, 
\.    For,  once  it  is  conceded  th  1 
L  the  company  is  the  company,  ' 
:;  .    .     •   •  itation.    These 

iy  of  a  station 

affirni  that  if  the 

.J  by  the  surgeon, 

s  acts,  the  company  will  be  bound. 

,  t^.  ^..  these  cases  the  company  was  held 

il^Ie  on  til  >n  by  the  superintendent,  and  there 

v.;         -"  '  -lestion  than  that  a  failure  of  the 

j^!  act  of  the  conductor  or  station 

ie.    There  was  no  discussion  of  the 
of  immediate  and  urgent  necessity, 
.ise  cases  strongly  indicates  that  the 
\  er  he  may  be,  on  the  occasion  and 
deemed  the  act  of  the  corporation 
In  the  last  of  these  cases  it  is  said : 
nder  no  legal  obligation  to  furnish 
njuries  while  in  the  service  of  the 
^e.  vet,  where  a  day  laborer  has,  by 
s  when  laboring  to  ad- 
I  iipany,  honesty  and  fair 
;  that  it  should  furnish  medical  a- 
.    .^at  honesty  and  fair  dealing  requi; 
1  be  furnished,  then  the  law  requires  ; 
'  -Tiesty  and  fair  dealing.    It  would  be 
one  not  merited,  to  declare  that 
i lid  "fair  dealing  require  ' 


CONTRACTS.  197 

If  it  should  appear  that  a  man  had  been  denied  what  honesty  and 
fair  dealing  required  of  his  master,  and  death  should  result,  it  would 
seem  clear,  on  every  principle  of  justice,  that  the  master  would  be 
responsible  for  the  servant's  death.  Of  course,  this  duty  could  not 
rest  upon  the  master  in  ordinary  cases,  but  should  rest  upon  him  in 
extraordinary  cases,  where  immediate  medical  assistance  is  imper- 
atively demanded.  The  case  of  Tucker  v.  St.  Louis,  etc.,  R.  W.  Co., 
54  Mo.  177,  does  decide  that  a  station  agent  has  no  authority  to  em- 
ploy a  surgeon,  but  no  element  of  pressing  necessity  entered  into  the 
case.  There  is  no  authority  cited  in  support  of  the  opinion,  nor  is 
there  any  reasoning.  All  that  is  said  is :  "It  is  only  shown  that  they 
[the  station  agent  and  the  conductor]  were  agents  of  defendant  in 
conducting  its  railroad  business,  which  of  itself  could  certainly  give 
them  no  authority  to  employ  physicians,  for  the  defendant,  to  attend 
to  and  treat  persons  accidentally  injured  on  the  roads."  It  may  be 
that  this  statement  is  true  in  ordinary  cases,  but  when  we  add  the 
element  of  immediate  and  pressing  necessity,  a  new  and  potent  factor 
is  introduced  into  the  case.  A  brief  opinion  was  rendered  in  Brown 
V.  Missouri,  etc.,  R.  W.  Co.,  67  Mo.  122,  declaring  that  the  superin- 
tendent of  the  company  could  not  bind  the  company  for  "a  small  bill 
of  drugs  furnished  a  woman  who  had  been  hurt  by  the  locomotive  or 
cars  of  the  defendant."  It  may  be  said  of  the  last  cited  case  that  it 
presented  no  feature  of  emergency  requiring  prompt  action,  and  for 
aught  that  appears  in  the  meager  opinion  of  a  very  few  lines,  there 
may  have  been  no  necessity  for  action.  But  it  is  further  to  be  said  of 
it,  that  if  it  is  to  be  deemed  as  going  to  the  extent  of  denying  the 
right  of  one  of  the  principal  officers  to  contract  for  medicine  in  a 
case  of  urgency,  it  finds  no  support  from  any  adjudged  case.  The 
case  of  jMayberry  v.  Chicago,  etc.,  R.  R.  Co.,  75  Mo.  492,  is  not  in 
point,  for  there  a  physician  employed  to  render  medical  aid,  and  em- 
ployed for  no  other  purpose,  undertook  to  contract  for  boarding  for 
an  injured  man. 

The  learned  counsel  for  appellant  says,  in  his  argument:  "In  sev- 
eral of  these  cases  the  court  takes  occasion  to  say  that  humanity,  if 
not  strict  justice,  requires  a  railroad  company  to  care  for  an  employe 
who  is  injured  without  fault  on  his  part  in  endeavoring  to  promote 
the  interests  of  the  company.  Whilst  this  may  be  true,  I  think  hu- 
manity, and  strict  justice,  too,  would  at  least  permit  the  company 
to  adopt  the  proper  means  for  exercising  the  required  care  and  of 
determining  the  cases  wherein  it  ought  to  be  exercised." 

It  seems  to  us  that  while  the  concession  of  the  counsel  is  required 
by  principle  and  authority,  his  answer  is  far  from  satisfactory.  Can 
a  man  be  permitted  to  die  while  waiting  for  the  company  to  deter- 
mine when  and  how  it  shall  do  what  humanity  and  strict  juslice  re- 
quire ?  Must  there  not  be  some  representative  of  the  company  pres- 
ent in  cases  of  dire  necessity  to  act  for  it?  The  position  of  counsel 
will  meet  ordinary  cases,  but  it  falls  far  short  of  meeting  cases  where 


198  LIABILITY   TO   THIRD    PERSONS. 

there  is  no  time  for  deliberation,  and  where  humanity  and  justice  de- 
mand instant  action.  From  whatever  point  of  view  we  look  at  the 
subject  we  shall  find  that  the  highest  principles  of  justice  demand 
that  a  subordinate  agent  may,  in  the  company's  behalf,  call  surgical 
aid,  when  the  emergencies  of  the  occasion  demand  it,  and  when  he  is 
the  sole  agent  of  the  company  in  whose  power  it  is  to  summon  assist- 
ance to  the  injured  and  suffering  servant.  Humanity  and  justice 
are,  for  the  most  part,  inseparable,  for  all  law  is  for  the  ultimate 
benefit  of  man.  The  highest  purpose  the  law  can  accomplish  is  the 
good  of  society  and  its  members,  and  it  is  seldom,  indeed,  that  the 
law  refuses  what  humanity  suggests.  Before  this  broad  principle 
bare  pecuniary  considerations  become  as  things  of  little  weight. 
There  may  be  cases  in  which  a  denial  of  the  right  of  the  conductor 
to  summon  medical  assistance  to  one  of  his  trainmen  would  result  in 
suffering  and  death ;  while,  on  the  other  hand,  the  assertion  of  the 
right  can,  at  most,  never  do  more  than  entail  upon  the  corporation 
pecuniary  loss.  It  may  not  do  even  that,  for  prompt  medical  assist- 
ance may,  in  many  cases,  lessen  the  loss  to  the  company  by  prevent- 
ing loss  of  life  or  limb. 

The  authority  of  a  conductor  of  a  train,  in  its  general  scope,  is 
known  to  all  intelligent  men,  and  the  court  that  professes  itself  ig- 
norant of  this  matter  of  general  notoriety  avows  a  lack  of  knowledge 
that  no  citizen  who  has  the  slightest  acquaintance  with  railroad 
affairs  would  be  willing  to  confess.  It  is  true  that  the  exact  limits 
of  his  authority  cannot  be  inferred  from  evidence  that  he  is  the  con- 
ductor in  charge  of  the  train,  but  the  general  duty  and  authority  may 
be.  This  general  authority  gives  him  control  of  the  trainmen  and  of 
the  train,  and  devolves  upon  him  the  duty  of  using  reasonable  care 
and  diligence  for  the  safety  of  his  subordinates.  The  authority  of  the 
conductor  may  be  inferred,  as  held  in  Columbus,  etc.,  R.  W.  Co.  v. 
Powell,  40  Ind.  37,  from  his  acting  as  such  in  the  control  of  the  train, 
but  this  inference  only  embraces  tlie  ordinary  duties  of  such  an  agent. 
Many  cases  declare  that  the  conductor,  in  the  management  of  the 
train  and  matters  connected  with  it,  represents  the  company.  It  is 
true  that  the  agency  is  a  subordinate  one,  confined  to  the  subject- 
matter  of  the  safety  of  the  train  and  its  crew,  and  the  due  manage- 
ment of  matters  connected  with  it,  but  although  the  conductor  is  a 
subordinate  agent  he  yet  has  broad  authority  over  the  special  subject 
committed  to  his  charge.  It  was  said  in  Jeffersonville  Ass'n  v. 
Fisher,  7  Ind.  699,  that  "It  is  not  the  name  given  to  the  agent,  but  the 
acts  which  he  is  authorized  to  do,  which  must  determine  whether 
they  are  valid  or  not,  when  done."  In  another  case  it  was  said :  "The 
authority  of  an  agent  being  limited  to  a  particular  business  does  not 
make  it  special ;  it  may  be  as  general  in  regard  to  that,  as  though 
its  range  were  unlimited."  Cruzan  v.  Smith,  41  Ind.  288.  This  sub- 
ject was  discussed  in  Toledo,  etc.,  R.  W.  Co.  v.  Owen,  43  Ind.  405, 
where  it  was  said :  "A  general  agent  is  one  authorized  to  transact  all 


his  principal's  business  or  all  of  his  principaUs  business  of  some  par- 
ticular kind.  A  special  agent  is  one  who  is  authorized  to  do  one  or 
more  special  things,  and  is  usually  confined  to  one  or  more  particular 
tj :  ■;,  such  as  the  sale  of  a  tract  of  land,  to  S(  '  adjust 

a  «  jcount,  or  the  like.    That  the  autiioritv  of  •  i?  lim- 

ited 10  a  particular  kind  of  business  doc*  :  :al 

agent.    Few,  if  any,  agents  of  a  railroad  coi  nd 

to  every  kind  of  business  of  the  company,"  bui  ed 

duties  of  a  particular  kind,  or  relating  to  jr 

department  of  the  business."     Wharton  say  is 

one  who  is  authorized  by  his  principal  to  take  cii 
in  a  particular  line."    Wharton  Agency,  117.     It 
f:^.nii^'ar  principles  that  the  conductor  of  a  train,  so 
iiiu  -iirect  and  immediate  management  of  the  train  \\ 
the  road,  is,  in  the.  absence  of  some  superior  officer,  the  gc  n 

of  the  company;  but  even  general  agents  do  not  hav'  :il 

powers,  and  the  authority  of  such  agents  is  to  be  deduce  .;e 

facts  surrounding  the  particular  transaction.    2  Greenl.  Ev.  '.■4, 

64a.  In  some  m:>tances,  then,  the  conductor  is  the  general  agent  of 
the  compan}',  an.l  we  think  it  clear  upon  principle  and  authority,  that 
he  is  such  an  agent  for  the  purpose  of  employing  surgical  assistance 
where  a  brakeman  of  his  train  is  injured  while  the  train  is  out  on  the 
road,  and  where  there  is  no  superior  officer  present,  and  there  is  an 
immediate  necessity  for  surgical  treatment.  A  conductor  cannot  be 
regarded  as  having  authority  to  employ  a  surgeon  when  the  train  is 
not  on  the  r.  Tid  under  his  control,  or  where  there  is  one  higher  in 
authoT "  ound,  or  where  there  is  no  immediate  m 

for  tiK  H  surgeon. 

The  ruie  h  iiu  li  denies  a  recovery  w^here  there  is  mutual  negligence 
applies  only  betvxeen  the  immediate  parties.    The  courts  (l>  n<>:  t  x 
tend  the  rule  to  cases  where  the  defendant's  negligence  . 
'  ■^^''■-'\  person  concur  in  producing  the  injury.    Thu     ■■ 

ito  collision  and  the  managers  of  both  are  neC' 
niri\  •  ''  ^s  be  maintained  by  a  passenger.     "  '  ,;. 

R.  C<  er,  ante,  p.  186.    So.  if  a  man  '?  cr 

'I'  'jy  a  collision  occurring  thron:  rent  neg- 

h  d.river  of  the  vehicle  and  the  ,1  railroad 

t'  in  running  it.  he  may  recover,  i  )!g  the 

CO..,.  'licence  of  the  driver  of  the  vel  '  -"^  • 

riding  Ibion  v.  Hettrick,  90  Ind.  54; 

Rnbhi  .-...v    Y'urk  Cent.,  etc..  R.  R.  CoS  'j^j 

-7,  A  1:1.    vi'p.  i;  Wabash,  etc.,  R.  Co.  v.  Shacklet.  i<. 
44  ■'^1''  Tson  v.  New  York  Cent  ^4 

N.  V.  310;  Cuddy  v.  Horn.  4'  ;i 

Am.  In  ,  Bennett  v.  New  Jersey, 

T,^  An  < 

contributory  negligt  authorities 


iLITY   TO   TiiIRD   PF.R.SON>. 


th' 


, -11101  Lit. 

.le  injure( 
r  the  most  ; 
ut  man.  T^ 
:  society  an 
fuses  wh' 


>ulieiing  ami  >. 


umanity  and  justice  de- 

ustice  demand 

f,  call  surgical 

;ind  when  he  is 

.-wer  it  is  lo  ?ummon  assist- 

mt.     Humanity  and  justice 

tor  all  law  is  for  the  ultimate 

1.-  the  law  can  accomplish  is  the 

■  d  it  is  seldom,  indeed,  that  the 

,s.     Before  this  broad  principle 

ne  a«:   thines  of  little  weight. 

iemal  of  ht  of  the  conductor 

one  of  i  n  would  result  in 

he  other  -sertion  of  the 

ic  than  Jie  corporation 

vcn  tha',  tipt  medical  assi,- 

:-'..,.  1..,..;  ........,^.,  Vjy  preveii 


■;i  atraui,  .leral  scope,  is 

)  the  court  .  esses  itself  ig- 

■riety  avo\v>  <i  lack  of  knowledge 
Li^st  acquaintance  with   railroad 
would  h  OSS.     It  is  true  that  the  exact  limits 

'■''T'  f'*t  >'d  from  evidence  that  he  is  the  con- 

:  the  general  duty  and  authority  may 
Liu>  t^cut'  vt'.^  him  control  of  the  trainmen,  and  of 

•:  train,  and  v  ,  him  the  duty  of  using  reasonable  care 

-.!.)•  f  his  subordinates.  The  authority  of  the 

C'  IS  held  in  Columbus,  etc.,  R.  W,  Co.  v. 

F-  icting  as  such  in  the  control  of  the  train, 

';  i-ices  the  ordinary  duties  of  such  an  agent. 

1^  the  conductor,  in  the  management  of  the 
.  :^  ..i/M.Kjcted  with  it,  represents  the  company.     It  is 
.:ency  is  a  subordinate  one.  confined  to  the  subject- 
'    '-  of  the  train  and  its  I  the  due  manage- 

-nected  with  it,  but  ;  (he  conductor  is  a 

i  has  broad  authority  special  subject 

■e.     It  was  said  in  Mville  Ass'n  v. 

"It  is  not  the  name  given  to  the  agent,  but  the 
ized  to  do,  which  must  determine  whether 
th'  en  done."    In  another  case  it  was  said :  "Tl. 

auiiiu.  -  limited  to  a  particular  business  does  not 

make  :i  is  general  in  regard  to  that,  as  though 

its  range  v\  m  v.  Smith,  41  Ind,  288.    This  sub- 

ject was  di  .,  R.  W.  Co.  v.  Owen,  43  Ind.  405, 

'here  it  wa  iiu  agent  is  one  authorized  to  transact  .'<'' 


CONTRACTS.  199 

his  principal's  business  or  all  of  his  principal's  business  of  some  par- 
ticular kind.  A  special  agent  is  one  who  is  authorized  to  do  one  or 
more  special  things,  and  is  usually  confined  to  one  or  more  particular 
transactions,  such  as  the  sale  of  a  tract  of  land,  to  settle  and  adjust 
a  certain  account,  or  the  like.  That  the  authority  of  an  agent  is  lim- 
ited to  a  particular  kind  of  business  does  not  make  him  a  special 
agent.  Few,  if  any,  agents  of  a  railroad  company  do,  or  can,  attend 
to  every  kind  of  business  of  the  company,  but  to  each  one  is  assigned 
duties  of  a  particular  kind,  or  relating  to  a  particular  branch  or 
department  of  the  business."  Wharton  says :  "A  general  agent  is 
one  who  is  authorized  by  his  principal  to  take  charge  of  his  business 
in  a  particular  line."  Wharton  Agency,  117.  It  results  from  these 
familiar  principles  that  the  conductor  of  a  train,  so  far  as  concerns 
the  direct  and  immediate  management  of  the  train  when  it  is  out  on 
the  road,  is,  in  the  absence  of  some  superior  officer,  the  general  agent 
of  the  company ;  but  even  general  agents  do  not  have  universal 
powers,  and  the  authority  of  such  agents  is  to  be  deduced  from  the 
facts  surrounding  the  particular  transaction.  2  Greenl.  Ev.,  §§  64, 
64a.  In  some  instances,  then,  the  conductor  is  the  general  agent  of 
the  company,  and  we  think  it  clear  upon  principle  and  authority,  that 
he  is  such  an  agent  for  the  purpose  of  employing  surgical  assistance 
where  a  brakeman  of  his  train  is  injured  while  the  train  is  out  on  the 
road,  and  where  there  is  no  superior  officer  present,  and  there  is  an 
immediate  necessity  for  surgical  treatment.  A  conductor  cannot  be 
regarded  as  having  authority  to  employ  a  surgeon  when  the  train  is 
not  on  the  road  under  his  control,  or  where  there  is  one  hisfher  in 
authority  on  the  ground,  or  where  there  is  no  immediate  necessity 
for  the  services  of  a  surgeon. 

The  rule  which  denies  a  recovery  where  there  is  mutual  negligence 
applies  only  between  the  immediate  parties.  The  courts  do  not  ex- 
tend the  rule  to  cases  where  the  defendant's  negligence  and  that  of 
a  third  person  concur  in  producing  the  injury.  Thus,  if  two  trains 
come  into  collision  and  the  managers  of  both  are  negligent,  an  action 
may  nevertheless  be  maintained  by  a  passenger.  Pittsburgh,  etc.,  R. 
R.  Co.  V.  Spencer,  ante.  p.  186.  So.  if  a  man  is  riding  with  another 
and  is  injured  by  a  collision  occurring  through  the  concurrent  neg- 
ligence of  the  driver  of  the  vehicle  and  the  servants  of  a  railroad 
train  engaged  in  running  it,  he  may  recover,  notwithstanding  the 
contributory  negligence  of  the  driver  of  the  vehicle  in  which  he  is 
riding.  Town  of  Albion  v.  Hettrick,  90  Ind.  545,  46  Am.  Rep.  230; 
Robinson  v.  New  York  Cent.,  etc.,  R.  R.  Co.,  60  N.  Y.  11,  s.  c. 
23  Am.  Rep.  i  ;  Wabash,  etc.,  R.  Co.  v.  Shacklet,  105  111.  364,  s.  c. 
44  Am.  Rep.  791  ;  Masterson  v.  New  York  Cent,  etc..  R.  R.  Co.,  84 
N.  Y.  247,  38  Am.  Rep.  510:  Cuddy  v.  Horn,  46  Mich.  596,  s.  c.  41 
Am.  Rep.  178;  Bennett  v.  New  Jersey,  etc.,  Co.,  36  N.  T-  225,  s.  c. 
13  Am.  Rep.  435. 

The  doctrine  of  contributory  nesrlisrence  is  bv  some  authorities 


200  LIABILITY    TO    THIRD    PERSONS. 

based  on  the  principle  that  a  man  must  not  cast  himself  into  danger, 
and  by  others  upon  the  principle  that  one  who  is  himself  in  fault  can- 
not invoke  assistance  from  the  courts  against  another  who  shares  the 
fault  with  him.  Butterfield  v.  Forrester,  ii  East  60;  i  Thompson 
Neg.  485.  Other  authorities  put  the  doctrine  on  the  ground  that 
the  interests  of  the  whole  community  require  that  every  one  should 
take  such  care  of  himself  as  can  reasonably  be  expected  of  him. 
Shearman  &  Redf.  Neg.,  §  42.  It  is  obvious  that,  whatever  be  deemed 
the  true  basis  of  the  doctrine,  it  cannot  apply  where  the  case  goes 
beyond  the  plaintiff  himself,  or  what,  in  law,  is  the  same  thing, 
his  agent  or  servant.  It  is,  therefore,  plain  that  where  a  surgeon  sues 
for  professional  services  rendered  at  the  request  of  the  agent  of  a 
railroad  corporation,  no  question  of  contributory  negligence  is  in- 
volved. This  is  manifestly  the  practical,  just  and  reasonable  rule. 
It  cannot  be  expected  that  a  surgeon  summoned  to  attend  a  case  of 
pressing  need  shall  be  required  to  stop  and  investigate  the  causes  of 
the  accident,  and  thus  take  upon  himself  the  functions  of  judge  and 
jury.  It  is  but  just  that  he  should  be  deemed  entitled  to  rely  on  the 
statement  of  the  corporate  agent.  Where  a  principal  puts  it  in  his 
agent's  power  to  exercise  apparent  authority,  the  man  who,  in  good 
faith,  acts  upon  the  statements  of  the  agent  should  be  protected. 
Cruzan  v.  Smith,  41  Ind.  288.  The  Supreme  Court  of  Kansas,  in  a 
case  not  unlike  the  present,  said :  "The  defendant  in  error  was  not 
compelled  to  institute  inquiry  as  to  the  moral  or  legal  liability  of  the 
railroad  companv  to  take  care  of  the  disabled  employe  before  re- 
ceiving him  into  his  hotel,  after  the  general  agent  of  the  company 
had  agreed  that  the  company  would  pay  for  the  board  and  service." 
Atlantic,  etc.,  R.  R.  Co.  v.  Reisner,  18  Kan.  458. 

The  employment  of  a  surgeon  is  not  an  acknowledgment  of  a 
liability  to  the  injured  servant,  nor  can  any  admission  be  tortured 
from  such  an  act.  Evidence  of  such  an  employment  would  be  in- 
competent in  an  action  by  the  servant,  and  no  admission  can,  there- 
fore, be  implied.  The  employment  of  a  surgeon  is  nothing  more  than 
an  act  of  humanity  and  justice  demanded  of  a  railroad  company  in 
behalf  of  a  servant  injured  in  its  service. 

Judgment  affirmed. 

ZoLLARS,  C.  J.,  dissents  on  the  ground  that  it  is  not  sufficiently 
shown  that  the  conductor  had  authority  to  bind  the  company  by  his 
contract  with  appellee. 

On  Petition  for  a  Rehearing. 

Elliott,  J. — Counsel  for  the  appellant  misconceive  the  drift  of 
the  reasoning  in  our  former  opinion,  as  well  as  the  conclusion  an- 
nounced. We  did  not  decide  that  a  corporation  was  responsible  gen- 
erally for  medical  or  surgical  attention  given  to  a  sick  or  wounded 
servant ;  on  the  contrary,  we  were  careful  to  limit  our  decision  to 


201 


e  imnie- 
.  inju^}^ 
th  it  ex- 

!  that  where  the  itn- 

•     ration  on  the  grouno, 
■Ue  action,  he  was  ai 
ition  as  the  exigency  ot  the  > 
l>ut  we  did  not  hold  that  the 
employ  a  surjjeon  where  the 
as  a  su}.'"^^  '  "    "    ■  ■  ''"C  gro;-." 

sustain!  es  there 

.  ed  bv  t! 
..J.  8,  a.  .      . 

.  48  Am.  Rep,  ofcy. 
r,  who  is  the  superior  agent  of  the  '-- 
present  the  principal  so  far  as  to 
■"'  services  to  an  injured  servant,  a;i'^  pi 
idily  harm,  then  it  must  be  said,  as  it 
i  of  the  United  States  in  Chicago,  etc.,  K.   v »  . 
nat  "If  such  conductor  does  not  represent  the 
train  is  operated  without  any  representative  of  its 

■  Louisville,  etc.,  R.  R.  Co.  v.  McVay,  post,  p.  391, 
•  •''^-  our  conclusion  in  the  present  case.     There  *^'" " 
ie  superior  agent  within  reach,  and  there  \v' 
vnediate  action.    These  are  fe 
h  the  i''xr>  rases.     We  held  > 
that  the  cc: 
:ority  to  emp^ 
rvant  of  the  company;  but  ' 
n  control  of  the  '-.v,  -  -'^  "^  '• 
ont  on  the  groun 


As  the  re. 

t^T^r  mater 

the  U). 

f  the  roai ;  ',\  I! 
thf^  in  in  red  ser 


Other 

.....s  of  tlv 
■ch  care 


lor  protessi 
railroad  co 
\olved.  Ti; 
It  cannot  !" 
,'uessing-  n*. 


:-c;lu.-;i'c;iit  ui  U' 


liability  to 
i      -ach  ail 
lent  in  ;i 

nn  a" 


I  into  aangcr, 
!t  in  fault  can- 

es  the 

■  inpson 

■  uoctr.  V  ground  that 

i-':"'ii;i  ■ry  one  should 

••ected  of  him. 

.\  !(u>  liiai,  w  !i. '.Lever  be  deemed 

mot  apply  where  the  case  goes 

•'ic  same  thing, 

'   a  surgeon  sues 

oi  the  agent  of  a 

.   negligence  is  in- 

d  reasonable  rule. 

:o  attend  a  case  of 

'Zzit  the  causes  of 

^  of  judge  and 

to  rely  on  the 

■  puts  it  in  his 

:    .  1  who,  in  good 

of  the  uild  be  protected. 

'■'h'--  ^^1'  urt  of  Kansas,  in  a 

t  in  error  was  not 

lo  Tilt  -  '  liability  of  the 

ni  the  •  ''ve  before  re- 

; -■  general  aj;ciiL  of  the  company 

pay  for  the  board  and  service." 

-8  kan.  458. 

not  an  acknowledgment  of  a 

can  any  admission  be  tortured 

-..ch  an  employment  would  be  in- 

rvant,  and  no  admission  can,  there- 

*  a  surgeon  is  nothing  more  than 

inded  of  a  railroad  company  in 


round  iV 


lot  sufficiently 

jirir].'';nv  Vtv  bi.-^ 


El- 
the  r< 


'ip';-onceive  the  drift  of 


for  medical 


I  to  a  sick  or  wounded 


CONTRACTS.  201 

surgical  services  rendered  upon  an  urgent  exigency,  where  imme- 
diate attention  was  demanded  to  save  life  or  prevent  great  injury. 
We  held  that  the  liability  arose  with  the  emergency,  and  with  it  ex- 
pired. 

We  did  hold  that  where  the  conductor  was  the  highest  representa- 
tive of  the  corporation  on  the  ground,  and  there  was  an  emergency 
requiring  immediate  action,  he  was  authorized  to  employ  a  surgeon 
to  give  such  attention  as  the  exigency  of  the  occasion  made  imperi- 
ouslv  necessary ;  but  we  did  not  hold  that  the  conductor  had  a  gen- 
eral authority  to  employ  a  surgeon  where  there  was  no  emergency, 
or  where  there  was  a  superior  agent  on  the  ground.  We  think  our 
decision  was  well  sustained  by  the  authorities  there  cited,  and  that  it 
is  further  supported  by  the  reasoning  in  Chicago,  etc.,  R.  W.  Co.  v. 
Ross,  31  Albany  L.  J.  8,  and  Pennsylvania  Company  v.  Gallagher,  40 
Ohio  St.  637,  s.  c.  48  Am.  Rep.  689, 

If  the  conductor,  who  is  the  superior  agent  of  the  company  on  the 
ground,  cannot  represent  the  principal  so  far  as  to  employ  a  surgeon 
to  render  professional  services  to  an  injured  servant,  and  prevent  the 
loss  of  life  or  great  bodily  harm,  then  it  must  be  said,  as  it  was  said 
by  the  Supreme  Court  of  the  United  States  in  Chicago,  etc.,  R.  W. 
Co.  V.  Ross,  supra,  that  "If  such  conductor  does  not  represent  the 
company  then  the  train  is  operated  without  any  representative  of  its 
owner." 

The  decision  in  Louisville,  etc.,  R.  R.  Co.  v.  McVay,  post,  p.  391, 
is  not  in  conflict  with  our  conclusion  in  the  present  case.  There  the 
roadmaster  was  not  the  superior  agent  within  reach,  and  there  was  no 
emergency  demanding  immediate  action.  These  are  features  which 
very  essentially  distinguish  the  two  cases.  We  held  in  this  case  a 
doctrine  held  in  the  case  cited,  namely,  that  the  conductor,  or  other 
subordinate  agent,  has  no  general  authority  to  employ  a  surgeon  for 
a  sick  or  wounded  servant  of  the  company ;  but  we  also  held  that 
where  the  conductor,  in  control  of  the  company's  train  and  its  brake- 
men,  is  the  highest  agent  on  the  ground,  he  does  possess  an  authority 
commensurate  with  an  existing  and  pressing  emergency.  It  seems 
clear  to  us,  upon  principles  of  fair  justice  and  ordinary  humanity, 
that  some  one  must  possess  authority  to  meet  an  urgent  exigencv  by 
employing  surgical  aid  to  save  from  death  or  great  and  permanent 
injury  a  servant  under  his  control.  As  the  reasoning  in  the  ]\IcVay 
case  clearly  shows,  there  is  still  another  material  difference  between 
the  two  cases,  and  that  is  this :  there  the  roadmaster  appeared  to 
only  have  authority  over  the  repairs  of  the  road ;  while  here  it  ap- 
pears that  the  conductor  had  charge  of  the  injured  servant,  and  was 
the  highest  officer  of  the  corporation  capable  of  acting  as  its  repre- 
sentative in  the  emergency  which  had  so  suddenly  arisen. 

So  far  as  concerns  the  general  principle  involved,  there  is  no  con- 
flict, but  rather  harmony,  for  the  AlcVay  case  clearly  recognizes  the 


202  LIABILITY    TO    THIRD    PERSONS. 

doctrine  that  the  highest  agent  capable  of  acting  for  the  company 
may  employ  surgical  aid  in  the  proper  case. 
Petition  overruled,^ 


KAYE  V.  BRETT  and  another. 

1850.     Court  of  Exchequer.     5  Ex.  269. 

Debt  for  goods  sold  and  delivered.  Plea,  payment  in  satisfaction. 
At  the  trial,  before  Patteson,  J.,  at  the  Yorkshire  Summer  Assizes, 
1849,  it  appeared  that  the  action  was  brought  to  recover  94/  3^-.  for 
goods  sold  by  the  plaintiff  to  the  defendants  under  the  following  cir- 
cumstances :  W.  Kaye,  the  plaintiff's  son,  carried  on  the  business  of 
a  woolen  cloth  merchant  at  Huddersfield  until  the  month  of  October, 
1847,  when  he  compounded  with  his  creditors.  On  the  30th  of 
October,  1847,  the  plaintiff",  who  had  made  advances  to  W.  Kaye 
upon  the  security  of  a  warrant  of  attorney,  issued  execution  thereon, 
and  took  possession  of  W.  Kaye's  stock  in  trade,  etc.,  in  his  ware- 
house. Shortly  afterwards  the  plaintiff  let  the  warehouse  to  Earn- 
shaw,  Hinchliffe  &  Co.,  and  arranged  with  their  salesman  to  sell  his 
goods.  One  H.  Tozer,  who  had  been  in  the  employ  of  the  plaintiff's 
son  as  a  bookkeeper,  remained  in  the  warehouse  as  bookkeeper  to 
Earnshaw  &  Co.  The  plaintiff',  who  was  a  builder,  very  seldom  came 
to  the  warehouse ;  but  a  book  was  kept  by  Tozer,  in  which  he  entered 
the  sale  of  the  plaintiff's  goods ;  he  also  made  out  invoices,  and  was 
accustomed  to  receive  money  paid  over  the  counter  for  goods  sold 
in  the  warehouse.  The  defendants  carried  on  business  as  woolen 
warehousemen  in  London  ;  and  in  December,  1848,  H.  Brett,  one  of 
the  defendants,  being  at  Huddersfield,  called  at  the  warehouse  of 
Earnshaw  &  Co..  and  purchased  some  of  the  plaintiff's  goods,  to  the 
amount  of  30/  ys.  2>d.  On  the  ist  of  February,  1849,  the  defendants 
received  the  following  letter,  containing  a  statement  in  reference  to 
these  goods : 

"Gentlemen  :  I  beg  to  hand  the  above  small  account,  which  I 
trust  you  will  find  correct.  A  cheque  for  amount  in  course  will 
oblige,  gentlemen,  your  most  obedient  servant. 

"Joseph  Kaye,  pro.  H.  Tozer. 

"P.  S.   Please  address,  care  of  Earnshaw,  Hinchliff'e  &  Co." 

^Accord:  Toledo,  etc.,  R.  Co.  v.  Rodrigiies,  47  111.  188.  Contra:  Sevier  v. 
Birmingham,  etc.,  R.  Co.,  92  Ala.  258.  See  Marquette,  etc.,  R.  Co.  v.  Taft, 
28  Mich.  289,  where  the  judges  were  evenly  divided.  See  also,  Atlantic  R. 
Co.  v.  Reisner,  18  Kan.  458. 

The  doctrine  of  the  principal  case  has  been  held  not  to  apply  to  the  case  of 
a  factor}-.    Chaplin  v.  Freeland,  7  Ind.  .App.  676. 

It  was  decided  in  Cox  v.  Midland  Counties  R.  Co.,  3  Ex.  268,  that  power 
to  make  a  contract  for  surgical  attendance  upon  injured  passengers  was  not 
incident  to  the  employment  of  a  station  master. 


c;ox'''i'                                      ■  203 

lount  was  accorf                nitted  by  letter  addressed  to  the 

and  enclosing  a  em  .  k  iidving'      '  '-  -'"  for  the  ^ t^  the 

)  whom  it  was  payable.     1                  ■'  of  tht  vas 

>t  which  •'  als 

FRSFIEIJi 


Fro.  Joseph 

iruary,  H.  i-lrett  again  called  at  u 
lid  purchased  goods  belonging  to 
94/  -^s.     On  the  22d  of  February  the 

-6  of  the  la^'-'-'^'-^'i  ■■•'.-.'   p■r^r.,u    ■><,.• 
:g  is  a  copy  : 

The  goods  herewitli  are  forwarded  this  mormn.  . 
!i  to  your  satisfaction.  Your  further  favors  will 
your  most  obedient  servant, 

"Pro.  Joseph^  Kaye^  H.  Tozer." 

*  ch,  1849,  ^^'^^  defendants  received  a  statement 
'■■'-i  following  is  a  copy: 

Mr.  Kaye  wishes  us  to  say  that  he  should  not  have 
lit,  but  that  he  understood  from  Mr.  Atkinson  that 
money  whenever  he  applied  for  it;  and  ■^'^  '  -    '■ 
i  for  some  large  payments,  he  would  allo\\ 
■  3  per  cent.,  instead  of  2^-4,  if  you  \vr 
a  cheque  for  him.    We  are,  gentleme 

ARNSHAW,   HlXCHLIFFE  &  Co.,  H.  ToZER." 

lants  wrote  in  reply  a  letter  addressed  to  Earnshaw, 
''o.,  offering  to  pay  the  sum  to  the  ]V  \\  being 

Jitional  2^^  per  cent.,  say  5  per  ce^'  ..  iiount  of 

:  and  at  the  bottom  of  that  lett-  e  following 

■"  the  handwriting  of  the  defendan;  >  uui: 


claims  ys.  6d. ;  5  per  cent.,  41/  14s. — 5/. 


ij.  ua.  0(> 


receive-:  't  the  following  letter : 

DDERSFIELD,  l6th  i^To'-ch 

iavour  of  the  I5ti: 
le  thinks  you  are  very  hard  11 
!S  in' want  of  the  n. .,'■■,      ^' 
P'^  eque  per  return 


>i  acting  for  the  company 


atis  faction. 

er  Assizes, 

94/  3s.  for 

1  lowing  cir- 

bnsiness  of 

i;  of  October, 

n  the  30th  of 

■  .  W.  Kaye 

'  )n  thereon, 

■  1  ui  W  .,  in  his  ware- 

r^\ard-  lOuse  to  Earn- 

-man  to  sell  his 

i  the  plaintifif's 

bookkeeper  to 

cldoni  came 

i  he  entered 

wicts,  and  was 

ior  goods  sold 

^less  as  woolen 

;.  :  .-  I.  Brett,. one  of 

crsfield,  '  warehouse  of 

'    r--  '  •;  goods,  to  the 

lie  defendants 

utammg  eference  to 

,e  above  nt,  which  I 

•'ourse  will 

. .  TOZER. 

Co." 

i-    Sevier 
Co.  V.  Taft, 
Atlantic  R. 

7  hr  >  the  case 

a  fact- 

I',  w  inties  R  ~   that  power 

to    P.-?y  '•■'   'inon    '  rs   u;i<;   not 


CONTRACTS.  203 

The  amount  was  accordingly  remitted  by  letter  addressed  to  the 
plaintiff,  and  enclosing  a  check  having  a  blank  for  the  name  of  the 
person  to  whom  it  was  payable.  The  receipt  of  the  check  was 
acknowledged  by  a  letter,  of  which  the  following  is  a  copy,  the  initials 
"H,  T."  being  those  of  Tozer : 

"HuDDERSFiELD,  lotli  February,  1849. 
"Gentlemen  :   I  beg  to  acknowledge  receipt  of  cheque  value  29/ 
I2S.,  for  which  am  obliged.    Gentlemen,  your  most  obedient  servant, 

"Pro.  Joseph  Kaye,  H.  T." 

In  the  month  of  February,  H.  Brett  again  called  at  the  warehouse 
of  Earnshaw  &  Co.,  and  purchased  goods  belonging  to  the  plaintiff, 
to  the  amount  of  94/  3^-.  On  the  22d  of  February  the  defendants 
received  an  invoice  of  the  last-mentioned  goods,  and  a  letter,  of 
which  the  following  is  a  copy : 

"Gentlemen  :  The  goods  herewith  are  forwarded  this  morning. 
and  trust  will  open  to  your  satisfaction.  Your  further  favors  will 
oblige,  gentlemen,  your  most  obedient  servant, 

"Pro.  Joseph  Kaye,  H.  Tozer." 

On  the  15th  of  March,  1849,  the  defendants  received  a  statement 
and  letter,  of  which  the  following  is  a  copy : 

"Gentlemen  :  Mr.  Kaye  wishes  us  to  say  that  he  should  not  have 
written  for  payment,  but  that  he  understood  from  Mr.  Atkinson  that 
he  could  have  the  money  whenever  he  applied  for  it ;  and  as  he  is 
now  much  pressed  for  some  large  payments,  he  would  allow  you  an 
extra  discount,  say  3  per  cent.,  instead  of  2^,  if  you  would  be  kind 
enough  to  send  us  a  cheque  for  him.  We  are,  gentlemen,  your  most 
obedient  servants, 

"Pro.  Earnshaw,  Hinchliffe  &  Co.,  H.  Tozer." 

The  defendants  wrote  in  reply  a  letter  addressed  to  Earnshaw, 
Hinchliffe  &  Co.,  offering  to  pay  the  sum  to  the  plaintiff  on  being 
allowed  an  additional  2>^  per  cent.,  say  5  per  cent.,  on  the  amount  of 
the  statement ;  and  at  the  bottom  of  that  letter  was  the  following 
memorandum  in  the  handwriting  of  the  defendant's  clerk : 

"Goods,  94/  3.y. ;  claims  ys.  6d. ;  5  per  cent.,  41/  14^. — 5/.  is.  6d.  89/ 
IS.  6d." 

The  defendants  received  in  answer  the  following  letter : 

"Huddersfield,  i6th  March.  1849. 

"Gentlemen  :  In  reply  to  your  favour  of  the  15th  inst.,  ^Ir.  Kaye 
desires  us  to  say  that  he  thinks  you  are  very  hard  upon  him  :  but,  as 
stated  in  our  last,  he  is  in  want  of  the  money.  You  will  therefore 
please  to  hand  us  a  cheque  per  return  of  post.    We  cannot  say  any- 


204  LIABILITY    TO   THIRD   PERSONS. 

thing  about  the  returns  until  we  see  Mr.  B.     We  are,  gentlemen, 
your  most  obedient  servants, 

"Pro.  Earnshaw,  Hinchliffe  &  Co.,  H.  Tozer." 

On  the  i/th  of  j\Iarch  the  defendants  remitted  a  cheque  for 
89/  IS.,  in  a  letter  addressed  to  Messrs.  Earnshaw,  Hinchliffe  &  Co., 
Huddersfield,  and  which  was  delivered  at  their  counting-house.  This 
letter  was  intercepted  by  Tozer,  who  took  the  check  to  a  bank  in 
Huddersfield,  and  having  obtained  cash  for  it,  absconded.  The 
learned  judge  told  the  jury  that  the  only  question  was,  whether  the 
payment  to  Tozer  was  payment  to  the  plaintiff,  and  that  depended 
upon  whether  Tozer  was  authorized  to  receive  payment  in  checks, 
and  if  so,  they  should  find  for  the  defendants.  A  verdict  having  been 
found  for  the  defendants,  in  last  Michaelmas  term  a  rule  nisi  was  ob- 
tained to  set  aside  the  verdict,  and  for  a  new  trial,  on  the  ground  of 
misdirection,  against  which  Cleasby  showed  cause  in  the  following 
Hilary  Vacation  (February  8). 

This  case  falls  within  the  principle  laid  down  in  Story  on  Agency, 
§  127,  note  2,  viz. :  that,  "the  principal  is  bound  by  all  acts  of  his 
agent  within  the  scope  of  the  authority  which  he  holds  him  out  to 
the  world  to  possess,  although  he  may  have  given  him  more  limited 
private  instructions  unknown  to  the  persons  dealing  with  him." 
That  doctrine  is  founded  on  the  public  policy  of  preventing  frauds  on 
innocent  persons,  and  the  encouragement  of  confidence  in  dealings 
with  agents.  In  this  case,  if  the  check  had  been  sent  to  Tozer,  that 
would  have  been  a  valid  payment ;  so  that  the  money  has  in  fact  come 
to  the  hands  of  a  person  authorized  to  give  a  discharge ;  and  it  is 
immaterial  in  what  way  he  got  possession  of  it. 

[Parke,  B. — If  a  shopman  is  accustomed  to  receive  money  over 
the  counter,  payment  to  him  binds  the  principal,  for  there  is  a  repre- 
sentation to  all  the  world  that  the  agent  is  authorized  to  receive 
money  in  the  shop ;  but  that  does  not  import  an  authority  to  receive 
money  in  any  other  way. 

Alderson,  B. — ^If  the  plaintiff  had  directed  the  defendants  to  pay 
the  money  to  a  banker,  and  the  defendants  had  done  so,  that  would 
have  been  a  good  payment ;  but  here  the  plaintiff  gave  no  direction 
that  the  money  should  be  paid  to  Earnshaw  &  Co.,  on  his  account.] 

The  defendants  paid  the  money  in  the  ordinary  course  of  business, 
and  Tozer,  as  the  agent  of  Earnshaw  &  Co.,  was  as  much  authorized 
to  receive  it  as  if  the  defendants  had  gone  to  the  warehouse  and  paid 
him. 

[Parke,  B. — It  is  as  if  the  money  had  been  sent  by  a  messenger  to 
Earnshaw  &  Co.,  and  Tozer  had  robbed  the  messenger.] 

If  the  defendants  had  gone  to  the  warehouse  and  asked  for  Tozer 
in  order  to  pay  him,  and  a  person  had  come  forward  and  represented 
himself  as  Tozer,  payment  to  such  person  would  have  been  good. 
Barrett  v.  Deere  Moo.  &  M.  200;  E.  C.  L.  R.,  Vol.  22.    There  was 


;\ts,  for 


1  Hiii,  in  support  or 
nt,  in  fact,  to  Eft^^^ -■ 
idants  could  nor 


OUiV    (li. 

io  nav 


rice  to  the  defer;  posed  upon 

ing  the  extent  c.    - ^  ;Lhority,     Atv>       .     . 

&  C.  278  E.  C.  L.  R..  Vol.  14 ;  Alexander  v.  Mack 

:  Id.  60.  It  does  r      - -       --^  *he  correspondence  i  1  a 

;tv  implied  authf^  eceive  the  inoncv ;  but 

'reat  him  :iiing  Earnshaw 

■  )w  said  (after  .-  ts)  :     The  q: 

c  facts  the  receipi  :y  by  Tozer  c:  . 

We  are  clearly  of  opinion  that  it  did  not.    Earii 
■'♦^horized  to  receive  the  money,  and  the  statcuc.L 
ect,  in  the  name  of  Kaye,  was  false,  and  there- 
:;jc  of  the  money  to  and  the  receipt  at  the      '  - 

'law  &  Co.,  was  no  payment;  nor  did  the  ^ 

'uey  to  Tozer,  nor  was  Tozer  authorized  lo  re- 
i  which  it  was  remitted.    The  receipt,  therefore, 
good  payment  by  the  defendants  to  Kaye.    If 
'i,t]i,-Mi'7ed  to  receive  payment  over  th-  •-.....-.'-^r 

re  than  in  the  shop,  that  payr 
:  i!i!j^!jt  be  \-\  '-'■''-  "  '--■  trust  tl"     ■  :^ — 
'^  course  nf  ^^  ii  the  sh  c 


s  case  til 


'iWe  in  all  siicli  -riv'- 
e  is  expfi 

■'onty  to    ■ 


Tstlcmen, 

I.   TOZER.' 

,i   tht    i: 


n 


que   tor 
e  &Co.. 

nonse.   This 

J  a  bank  in 

nded.     The 

■V  ><n\    1  '■ ' 

.  whether  the 

-  the  okw 

lat  depended 
!it  in  checks, 

having  been 

Lile  nisi  was  ob- 

•i!  the  ground  of 

he  following 

nciple  laid  <' 

Story  on  Agency, 
V  all  acts  of  his 

•olds  him  out  to 

he  mux 

tnore  limited 

to   thr 

-   with   him." 

■".:'.  enting  frauds  on 

.;:...  mce  in  dealings 

heck  hsiC  nt  to  Tozer,  that 

so  that  tla  ;;;  ikv  has  in  fact  come 

ed  to  g-ive  a  discharge ;  and  it  is 

receive  money  over 

.  V  ipal..  for  there  is  a  repre- 

.  .  a  is  authorized  to  receive 

import  an  authority  to  receive 

irected  the  defendants  to  pay 

e  so,  that  would 

:n'e  no  direction 

on  his  account.] 

irse  of  business, 

'  h  authorized 


;i;.kcd  for  T- 
1  and  represcr 
wo\ild  have  been  g' 
■R..  Vo].  22.    There 


CONTRACTS.  205 

no  neg-ligence  on  the  part  of  the  defendants,  for  it  is  the  universal 
practice  of  men  in  business  to  trust  to  letters  written  by  clerks. 

Watson  and  Hugh  Hill,  in  support  of  the  rule : 

This  was  a  payment,  in  fact,  to  Earnshaw  &  Co.,  on  behalf  of  the 
plaintiff.  The  defendants  could  not  sue  Tozer  for  this  money  as 
received  to  their  use,  because  he  was  only  the  agent  of  Earnshaw  & 
Co.  The  defendants  never  intended  to  pay  Tozer,  and  he  is  in  the 
same  situation  as  any  third  person  who  might  have  stolen  the  letter. 
The  circumstance  of  his  letters  being  signed  "per  procuration,"  was 
sufficient  notice  to  the  defendants,  and  imposed  upon  them  the  duty 
of  ascertaining  the  extent  of  Tozer's  authority.  Atwood  v.  ]\Iun- 
nings,  7  B.  &  C.  278  E.  C.  L.  R.,  Vol.  14 ;  Alexander  v.  Mackenzie, 
6  C.  B.  766 ;  Id.  60.  It  does  not  appear  from  the  correspondence  that 
there  was  any  implied  authority  to  Tozer  to  receive  the  money ;  but 
the  defendants  treat  him  as  merely  representing  Earnshaw  &  Co. 

Ciir.  adv.  z'lilt. 

Parke,  B.,  now  said  (after  stating  the  facts)  :  The  question  is, 
whether  on  these  facts  the  receipt  of  the  money  by  Tozer  discharged 
the  defendants.  We  are  clearly  of  opinion  that  it  did  not.  Earnshaw 
&  Co.  were  not  authorized  to  receive  the  money,  and  the  statement 
of  Tozer  to  that  effect,  in  the  name  of  Kaye,  was  false,  and  there- 
fore the  remittance  of  the  money  to  and  the  receipt  at  the  counting- 
house  of  Earnshaw  &  Co.,  was  no  payment;  nor  did  the  defendants 
mean  to  pay  the  money  to  Tozer,  nor  was  Tozer  authorized  to  re- 
ceive it  in  the  way  in  which  it  was  remitted.  The  receipt,  therefore, 
by  Tozer,  was  not  a  good  payment  by  the  defendants  to  Kaye.  If 
a  shopman,  who  is  authorized  to  receive  payment  over  the  counter 
only,  receives  money  elsewhere  than  in  the  shop,  that  payment  is  not 
good.  The  principal  might  be  willing  to  trust  the  agent  to  receive 
money  in  the  regular  course  of  business  in  the  shop,  when  the  latter 
was  under  his  own  eye,  or  under  the  eyes  of  those  in  whom  he  had 
confidence,  but  he  might  not  wish  to  trust  the  agent  with  the  receipt 
of  money  elsewhere.  We  think  that  in  this  case  the  payment  was  not 
good,  and  that  the  defendants  must  suft'er  from  the  fraud  of  Tozer ; 
and  consequently,  the  rule  will  be  absolute. 

Rule  absolute.^ 

^  "Every  agency  carries  with  it,  or  includes  in  it  as  an  incident,  all  the  power* 
which  are  necessary,  or  proper,  or  usual,  as  means  to  effectuate  the  purposes 
fpr  which  it  was  created,  and  none  other."  Wheeler,  J.,  in  McAlpin  v.  Cas- 
sidy,  17  Tex.  450,  463. 

"It  is  a  general  principle,  applicable  in  all  such  cases,  whether  the  agency  be 
general  or  special,  unless  the  inference  is  expressly  negatived  by  some  fact  or 
circumstance,  that  it  includes  the  authority  to  employ  all  the  usual  modes  and 
means  of  accomplishing  the  purposes  and  ends  of  the  agency,  and  a  slight 
deviation  by  the  agent  from  the  course  of  his  duty  will  not  vitiate  his  act,  if 
this  be  imm.aterial  or  circumstantial  only,  and  does  not,  in  substance,  exceed 
his  power  and  duty.  Such  an  agency  carries  with  it  and  includes  in  it,  as  an 
incident,  all  the  powers  which  are  necessary,  proper,  usual  or  reasonable,  as 


206  LIABILITY    TO    THIRD    PERSONS. 

KORNEMANN  and  another  v.  MONAGHAN. 
1871.     Supreme  Court  of  Michigan.     24  ]\Iich.  36. 

Error  to  Wayne  circuit. 

This  suit  was  brought  by  Otto  Kornemann  and  Julius  Jungbluth, 
against  William  Monaghan,  to  recover  the  price  of  certain  goods 
sold  by  the  former  to  the  latter,  through  the  means  of  an  order  taken 
by  a  traveling  agent  of  the  plaintiffs',  named  H.  C.  Pearl.  The  trial 
was  by  jury,  and  the  verdict  and  judgment  were  for  the  defendant, 

Campbell,  Ch.  J. — Plaintiffs  forwarded  a  bill  of  goods  to  defend- 
ant, ordered  by  the  latter  from  one  Pearl,  who  did  not  mention  to 
whom  he  intended  to  send  the  order.  The  goods  were  sent  to  de- 
fendant directly,  accompanied  by  a  bill  in  the  name  of  the  plaintiffs. 
A  letter,  sent  at  the  same  time,  directing  the  price  to  be  remitted,  is 
sworn  not  to  have  been  received.  Defendant  gave  evidence  that  after 
receiving  the  bill  he  paid  the  price  to  Pearl,  but  not  till  he  had  asked 
him  if  he  had  authority  to  receive  it.  There  had  never  been  any  deal- 
ings between  plaintiffs  and  defendant,  but  defendant  had  previously 
dealt  with  Pearl  in  agencies  for  other  houses,  and  had  paid  him 
money.  Pearl  disappeared  without  paying  over  the  money.  The 
court  charged  that  plaintiffs,  by  sending  the  goods  on  Pearl's  order, 
authorized  defendant  to  assume  he  was  empowered  to  receive  pay- 
ment. 

There  had  been  no  dealings  whatever  between  defendant  and  plain- 
tiffs whereby  defendant  could  have  been  enabled  to  know  anything 
about  Pearl's  authority.  An  agent  may  have  as  much  or  as  little 
power  as  his  principals  see  fit  to  give  him.  The  evidence  here  showed 
no  agency  whatever  whereby  he  could  lawfully  bind  them  to  any- 
thing. In  the  absence  of  actual  authority,  the  plaintiffs  could  only 
be  held  on  the  ground  that,  by  their  action,  they  had  induced  defend- 
ant to  believe  Pearl  had  full  authority  to  receive  money  for  them. 
If  they  had  sanctioned  such  conduct  before,  that  might  tend  to  sup- 
port the  claim.  But  plaintiffs  and  defendant  had  never  known  each 
other  in  business  before.  The  goods  were  not  even  sent  to  Pearl  for 
delivery,  but  were  sent  direct  to  the  purchaser  from  the  sellers. 
There  was  nothing,  therefore,  to  exonerate  the  purchaser  from  ascer- 
taining the  agent's  powers.  This  he  seems  to  have  supposed  he  was 
bound  to  do,  but  instead  of  inquiring  of  the  principals  he  inquired 
only  of  Pearl  himself.  He  had  no  right  to  act  on  anything  that  did 
not  proceed  from  the  plaintiffs,  either  as  actual  authority  or  in  some 
form  of  binding  admission.    There  was  no  proof  whatever  of  either 

means  to  effectuate  the  purposes  for  which  it  was  created,  and  it  makes  no 
difference  whether  the  authority  is  general  or  special,  express  and  implied;  it 
embraces  all  the  appropriate  means  to  accomplish  the  end  to  be  attained." 
Merrimon,  J.,  in  Huntley  v.  Mathias,  90  N.  Car.  loi.  103. 


Llie  payincnt,  tlierclore,  was  entirely  ui;- 
-  bound  plaintiffs, 
lent  was  erroneous,  and  must  be  rever  :osts  and 

granted 

aher  jus  curred. 


:3i.-iirsjJ. 


■l.AU  <.. 


iS^.i        SuPRtlMF.    C'OUKT 


VlRGINI 


Phis  was  an  action  of  assi 
■  ^"  :.d  &  Co. 


&  Co.  one  1 
two  cents, 
back,  attor- 

payees  ;;     ' 
the  an-' 


die  circuit  court  ■ 
'  berry  E.  Sta: 
introdu  :e  a  bill  of  ext    ,, 

14th  of  Ucceii-bci,  1842.  and  was  > 
.vere  requested  to  pay  to  P.  C.  &  J.  D 
nine  hundred  and  sixty-nine  dollars  and 
was  signed  by  L.  E.  Stainback,  by  F.  C.  S;.i..x 
by  F.  C.  Stainback,  and  was  endorsed  by  the 
ack ;  and  was  paid  by  the  plaintiffs,  who  ch  '  ;    " 

books  to  F.  C.  Stainback  and  the  defe: 
!,  at  the  date  of  the  bill,  any  funds  in  the  hands 


The  plan 
from  T      ■•"■ 

I..'.  ■ 

time  a: 
and  an 

rner'-f',.:  . 


introduced  in  evidence  the  power  of  att 
k  to  F.  C.  Stainback,  set  out  in  the  ni- 
ilso  offered  evidence  to  prove  that  t: 
-    -'■  T842,  the  defendant  and  F.  •  ' 
41,  were  in  business  in 
iback,  S' 
-  to  no 


Son  &  Co.,  and  also  F.  C 
^'  Virginia,  in  Petersburg,  : 
L.  E.  Stainback.  Son  & 
'     TSthofP 

,k,  and  * 


fbted 


vV  Co.,  F, 


C.  Stain bacK  ireqn 
'•ftrol  the  p-'  •'  f iK 
iters,  b<: 


;v  bearni;: 


;vlich.  T,(j 


Jungbluth, 

.  rtain  goods 

ns  ot  an  order  taken 

.    ,  '     !*earl.   The  trial 

the  defendant. 

:oods  to  defend- 

'  not  mention  to 

order.  vere  sent  to  de- 

ly  a  bill  of  the  plaintiffs. 

A  ic  directii.  "  be  remitted,  is 

;,    Defer  idence  that  after 

ice  to  I'.  -ill  he  had  asked 

.\'e  it.  T'  r  been  any  deal- 

•  -ndant.  .■  had  previously 

1  had  paid  him 

;.e  money.     The 

'TV  Pearl's  order, 

t(    receive  pav- 

. a .. ..  V  V  i  .  -v  L  -  .  ^  i.,  lit  and  plai; i 

liave  been  c  know  anything 

it  may  ha>e    u'  jnuch  or  as  little 

'^  him.   The  evidence  here  showed 

lawfully  bind  thern  to  any- 

rity,  the  plaintiffs  could  only 

.  action,  they  liad  induced  defend- 

,,,,.   ,,,  ;,,,  'or  it}'  to  receive  money  for  them. 

If  they  li  :t  l>efore,  that  might  tend  to  sup- 

,,:,„! —  K„  ;  ---.ver  known  each 

ent  to  Pearl  for 

,   ,  the  sellers. 

•'  from  ascer- 

;  e  agent  ;  '.sed  he  was 

/!,,   1,  •,.  he  inquired 

lything  that  did 

^  «v.Li.,v;   ,  ,  uority  or  in  some. 

no  proof  whatever  of  either 

,,,.■,,■  ..  and  it  makes  no 

■al,  express  and  implied:  ■♦ 
•  h  the  end  to  be  attain 


1 


CONTRACTS.  20/ 

of  these  essentials,  and  the  payment,  therefore,  was  entirely  un- 
authorized, and  in  no  way  bound  plaintiffs. 

The  judgment  was  erroneous,  and  must  be  reversed  with  costs  and 
a  new  trial  granted. 

The  other  justices  concurred. 


STAINBACK  v.  READ  &  CO. 
1854.     Supreme  Court  of  Appeals  of  Virginia,     ii  Gratt.  281. 

This  was  an  action  of  assumpsit  in  the  circuit  court  of  Petersburg, 
brought  by  C.  C.  Read  &  Co.  against  Littleberry  E.  Stainback.  Upon 
the  trial  the  plaintiffs  introduced  in  evidence  a  bill  of  exchange,  which 
bore  the  date  of  the  14th  of  December,  1842,  and  was  directed  to 
them,  whereby  they  were  requested  to  pay  to  P.  C.  &  J.  D.  Osborne 
&  Co.  one  thousand  nine  hundred  and  sixty-nine  dollars  and  forty- 
two  cents.  The  bill  was  signed  by  L.  E.  Stainback,  by  F,  C.  Stain- 
back,  attorney,  and  by  F.  C.  Stainback,  and  was  endorsed  by  the 
payees  and  F.  Stainback ;  and  was  paid  by  the  plaintiffs,  who  charged 
the  amount  on  their  books  to  F.  C.  Stainback  and  the  defendant ; 
neither  of  whom  had,  at  the  date  of  the  bill,  any  funds  in  the  hands 
of  the  plaintiffs. 

The  plaintiffs  also  introduced  in  evidence  the  power  of  attorney 
from  L.  E.  Stainback  to  F.  C.  Stainback,  set  out  in  the  next  pre- 
ceding case.  They  also  offered  evidence  to  prove  that  up  to  some 
time  about  the  beginning  of  1842,  the  defendant  and  F.  C.  Stainback 
and  another,  who  died  in  1841,  were  in  business  in  Petersburg  as 
merchants,  under  the  name  of  L.  E.  Stainback,  Son  &  Co.  That  the 
defendant  is  far  advanced  in  life,  attends  to  no  business,  and  that 
F.  C.  Stainback  had  the  management  and  settlement  of  the  business 
of  L.  E.  Stainback,  Son  &  Co.  up  to  the  time  of  his  failure  in  1843. 
That  L.  E.  Stainback,  Son  &  Co.,  and  also  F.  C.  Stainback,  had  an 
account  at  the  Bank  of  Virginia,  in  Petersburg,  in  December,  1842, 
and  previously,  and  that  L.  E.  Stainback,  Son  &  Co.  were  indebted 
to  that  bank  until  1843.  That  on  the  15th  of  December,  1842,  the  bill 
aforesaid  was  discounted  by  said  bank,  and  the  proceeds  passed  to 
the  individual  credit  of  F.  C.  Stainback,  the  draft  not  then  having 
been  accepted  by  the  plaintiffs.  That  in  managing  the  bank  business 
of  L,  E.  Stainback,  Son  &  Co.,  F.  C.  Stainback  frequently  endorsed 
notes  and  bills  last,  that  he  might  control  the  proceeds. 

The  plaintiffs  also  introduced  two  letters,  both  of  them  in  the  hand- 
writing of  F.  C.  Stainback,  and  addressed  to  them.  One  bears  date 
September  21,  1842,  and  is  signed  "L.  E.  Stainback,  Son  &  Co."  The 
only  part  of  it  having  any  bearing  on  this  case  is  as  follows : 


208  LIABILITY    TO   THIRD    TERSONS. 

"I   enclose  some  paper,  for  which  please  send  me  your  notes, 
payable  at  Farmville,  viz : 

My  note  dated  2d  September,  at  90  days,  favor  L,  E.  S.  . .  .$1,619.48 
Do,  do.         7th.         do.  do 1,941.67 


3.561. 15 


For  which  be  pleased  to  send  me  your  notes  in  favor  of  L.  E.  Stain- 
back,  Son  &  Co.,  dated  ist  September,  at  90  days,  for  $1,618.38,  and 
dated  8th  September,  at  90  days,  for  $1,942.77,  which  will  balance. 
You  can  use  the  notes  if  you  wish. 

"L.  E.  Stainback,  Son  &  Co.  have  $15,000  to  pay  on  the  4th  of  next 
month,  and  I  wish  to  provide  myself  with  paper  in  time.  Your  notes 
you  will  make  payable  in  Farmville." 

The  second  letter  bears  date  December  15,  1842,  and  is  signed 
"F.  C.  Stainback."  In  it  he  says,  "I  have  yours  of  loth,  handing 
your  check  for  $1,000.  Your  draft  fell  due  to-day,  not  on  i6th,  and 
I  had  to  alter  the  date  to  15th.  I  would  not  have  used  it  if  I  could 
have  avoided  it. 

P.  S.  The  draft  of  $1,740.92  is  right.  We  had  another  discounted 
to-day  for  about  $1,900.  Will  duly  take  care  of  them." 

The  plaintiffs  also  introduced  in  evidence  certain  bills  or  drafts, 
one  of  which  was  endorsed  by  L.  E.  Stainback,  by  F.  C.  Stain- 
back, attorney,  F.  C.  Stainback,  and  L.  E.  Stainback,  Son  &  Co. ;  and 
another  was  signed  as  the  bill  on  which  this  action  is  founded  is 
signed. 

The  defendant  offered  evidence  to  prove  that  at  the  date  of  the 
power  of  attorney  aforesaid  the  defendant  was  engaged  in  mercan- 
tile business  in  his  own  name  in  Petersburg,  F.  C.  Stainback  being 
a  clerk  in  the  defendant's  house ;  and  that  F.  C.  Stainback  was  at 
that  time  under  age,  and  engaged  in  no  business  on  his  own  account ; 
and  that  the  firm  of  L.  E.  Stainback,  Son  &  Co.  was  formed  about 
1836  or  1837.  The  evidence  being  through,  the  defendant  moved  the 
court  to  instruct  the  jury  as  follows  : 

1,  That  under  the  power  of  attorney  given  in  evidence  in  this 
cause,  F.  C.  Stainback  had  no  authority  to  draw  the  bill  on  the 
plaintiff's,  the  payment  of  which  constitutes  the  foundation  of  this 
action ;  and  that  the  drawing  of  such  bill  on  the  plaintiff's,  and  the 
payment  thereof  by  them,  did  not  authorize  the  said, plaintiffs  to  main- 
tain this  action  against  him. 

2.  That  if  they  believe,  from  the  evidence,  that  the  bill,  the  pay- 
ment of  which  by  the  plaintiffs  constitutes  the  foundation  of  this 
action,  was  drawn  by  F.  C.  Stainback  for  his  own  benefit,  and  the 
proceeds  thereof  went  to  his  own  use,  that  it  was  not  authorized  by 
the  power  of  attorney  in  evidence  in  this  cause,  and  that  it  Avas  the 
duty  of  all  persons  dealing  with  the  said  F.  C.  Stainback  as  attorney 
to  notice  the  limitations  of  his  authority,  as  the  same  was  conferred 


drawn 

tiie  ben; 

idant. 

if  the  jury  i 

il  the  ev 

he  defer: 

Liting  th 

cause 

:■  and  n 

•ney,  to  . 

the  Vir^ 

a  merchant  in  1 

-a  tl 

CONTRAC;  209 

he  could  only  bind  1,  ^al  in  such 

-^  crave 


lit 
a  ok 

paymeiiL  ,,.    ,, 
was  not  drawn  ' 
and  transactin;.: 
;k,  but  for  his  ov. 
.,  ilie  s:ad  aiLunie_y  had  no  po 
n-'T  of  the  «:?.id.bill,  so  as  to  0 

r  the  amount  froni  u 

.   .      ,.-       -/^e  first  and  fourth  ii;. 

:  third  ;  but  qualified  the  same  by  further  instruct- 

"•-Tent,  F.  C.  Stainback,  had  the  }x>wer,  under 

de  evidence  in  the  cause,  to  draw  the  bill  on 


ereof  fr 

■  ...::  ^.  ■  !:  to  find 

iieve  it  Miiodatic 

•-   Uli     I  ■;_:'■  ' 

nn  the 


(if  ther  vould  r. 

ft  refusins:  the  first  and  fourth  i 

-d  to  chi>  court  iur  a  supersede- 
,»er  ana' 


-ixfu 


$1,618.38,  and 
'h  will  balance. 

the  4th  of  next 

Tie.   Yniir  note? 


vou  will  1  ville.'" 


i  loth,  handing 

:  ;-.Ti  jt  •;  •. ,  not  on  i6th,  and 

I  won":  V  e  used  it  if  I  could 

:  -mother  discounted 

bills  or  drafts. 

v  L.  E.  St..  'jy  F.  C.  Stain- 

'  •■'■^  L.  E.  Si  M...-C.  .s  Son  &  Co. ;  and 

which  this  action  is  founded  is 

"yce  to  prove  that  at  the  date  of  the 

iant  was  engaged  in  mercan- 

-burg,  F.  C.  Stainback  being 

rind  that  F,  C.  Stainback  was  at 

-'-'  business  on  his  own  account; 

-on  &  Co.  was  formed  about 

,  I  irough,  the  defendant  moved  '^'^ " 

in  evidence  in  this 

v^w  the  bill  on  the 

onstitut  lion,  of  this 

-.  U  M11  ..., ill's,  and  the 

amtiffs  tomain- 

iiin,  tlie  pay- 
t^c   loiauiation  of   tV  ■ 
his  own  benefit,  and  t 
.  iuat  it  wa.s  not  authe^' 
.'••^  -reraise,   r-'d  that  it 
back  as  :^ 


CONTRACTS.  209 

by  the  said  power,  and  that  he  could  only  bind  his  principal  in  such 
cases  and  upon  such  bills  as  were  included  in  said  authority. 

3.  That  the  power  of  attorney  given  in  evidence  in  this  cause  gave 
no  authority  to  F,  C.  Stainback  to  bind  the  defendant,  by  drawing  or 
endorsing  bills,  etc.,  for  the  benefit  of  F.  C.  Stainback,  nor  unless  the 
same  were  drawn  or  endorsed  for  the  benefit  and  in  the  business 
of  the  defendant. 

4.  That  if  the  jury  believe  from  all  the  evidence  in  the  cause,  that 
the  object  of  the  defendant  in  executing  the  power  of  attorney  in 
evidence  in  this  cause  was  to  enable  and  authorize  his  son,  F.  C. 
Stainback,  the  attorney,  to  attend  to  and  transact  the  bank  business 
of  the  defendant  at  the  Virginia  Bank,  in  Petersburg,  the  defendant 
being  then  a  merchant  in  Petersburg,  and  the  said  F.  C.  Stainback 
being  under  age ;  and  that  the  bill,  the  payment  of  which  by  the 
plaintilts  is  the  foundation  of  this  suit,  w^as  not  drawn  by  the  said 
attorney  in  the  course  of  attending  to  and  transacting  the  bank 
business  of  the  defendant  at  the  said  bank,  but  for  his  ovv'n  use  and 
accommodation,  then  the  said  attorney  had  no  power  to  bind  the  de- 
fendant by  the  drawing  of  the  said  bill,  so  as  to  enable  the  plaintiffs, 
on  the  payment  thereof,  to  recover  the  amount  from  the  defendant. 

The  court  refused  to  give  the  first  and  fourth  instructions,  and 
gave  the  second  and  third ;  but  qualified  the  same  by  further  instruct- 
ing the  jury  that  the  agent,  F.  C.  Stainback,  had  the  power,  under 
the  letter  of  attorney  made  evidence  in  the  cause,  to  draw  the  bill  on 
which  this  suit  is  founded,  and  subscribe  the  name  of  his  principal 
(L.  E.  Stainback)  thereto,  in  the  manner  in  which  it  is  done  ;  and  that 
if  the  jury  shall  believe  that  the  plaintiffs  accepted  the  same,  and  paid 
it  at  maturity,  without  notice  of,  or  just  cause  to  suspect,  any  intended 
fraud  or  misapplication  of  the  proceeds  thereof  from  the  use  or  bene- 
fit of  the  principal,  that  they  then  ought  to  find  for  the  plaintiffs, 
though  they  may  believe  it  was  an  accommodation  acceptance.  And 
further,  that  if  the  jury  shall  believe  that  no  fraud  or  collusion 
with  the  agent  is  chargeable  on  the  plaintiffs,  then  the  fact  that  the 
said  agent  executed  the  bill  in  the  name  of  his  principal,  L.  E.  Stain- 
back, designating  himself  as  attorney,  is  equivalent  to  a  declaration 
on  his  part  that  he  was  acting  in  the  business  and  for  the  benefit  of 
his  principal :  and  that  any  misapplication  of  the  proceeds  by  the 
agent  after  they  came  to  his  hands  (if  there  was  any)  would  not 
defeat  the  plaintiffs'  recoverv. 

To  the  opinion  of  the  court  refusing  the  first  and  fourth  instruc- 
tions, and  instructing  the  jury  as  aforesaid,  the  defendant  excepted. 
There  was  a  verdict  and  judgment  for  the  plaintiffs ;  and  thereupon 
the  defendant  applied  to  this  court  for  a  supersedeas,  which  was 
awarded. 

Samuels,  J. — A  proper  analysis  of  this  case  will  show  that  it 
turns  upon  two  questions  : 
14^Reixhard  Cases. 


210  LIABILITY    TO    THIRD    PERSONS. 

First.  Whether  F.  C.  Stainback  had  the  authority  of  L.  E.  Stain- 
back,  his  principal,  to  draw  the  bill  which  is  part  of  the  foundation 
of  this  suit,  or  to  subject  his  principal  to  an  action  on  a  collateral 
contract  in  regard  thereto  ? 

Second.  If  he  had  no  such  authority,  is  L.  E.  Stainback  still  liable 
for  the  act  of  the  agent,  because  of  anything  in  the  dealing  between 
the  agent  and  the  plaintiffs  ? 

It  may  be  laid  down  as  a  rule  of  law,  sanctioned  alike  by  reason  and 
authority,  that  a  power  of  attorney  given  to  an  agent,  to  act  in  the 
name  and  on  behalf  of  his  principal,  in  the  absence  of  anything  to 
show  a  different  intention,  must  be  construed  as  giving  authority  to 
act  only  in  the  separate,  individual  business  of  the  principal.  See 
Story  on  Agency,  from  g  57  to  §  143  ;  Atwood  v.  ]\Iunnings,  7  Barn. 
&  Cress.  278;  North  River  Bank  v.  Aymar,  3  Hill  (N.  Y.)  262; 
Stainer  v.  Tysen,  3  Hill  (N.  Y.)  262;  Hewes  v.  Doddridge,  i  Rob. 

143-  . 

It  is  equally  well  settled  that  a  party  dealing  with  an  agent,  acting 
under  a  written  authority,  must  take  notice  of  the  extent  and  limits 
of  that  authority.  He  is  to  be  regarded  as  dealing  with  the  power  be- 
fore him ;  and  he  must,  at  his  peril,  observe  that  the  act  done  bv  the 
agent  is  legally  identical  with  the  act  authorized  by  the  power.  See 
cases  above  cited ;  also  i  American  Leading  Cases  392,  in  notes. 

These  rules  of  law.  applied  to  the  facts  of  the  case,  are  decisive  of 
the  first  question.  The  bill  was  not  drawn  in  the  business  of  L.  E. 
Stainback,  but  in  that  of  F.  C.  Stainback  exclusively.  It  v/as  not 
identical  with  a  bill  drawn  in  the  separate  name  of  L.  E.  Stainback. 
A  joint  bill  imposes  a  joint  liability  on  the  drawers  in  case  it  be  not 
honored.  In  case  of  loss  in  the  business  in  which  the  bill  is  drawn, 
both  parties  are  bound  ;  and  in  case  one  of  the  drawers  be  insolvent 
and  the  other  solvent,  as  in  this  case,  the  whole  loss  must  fall  on  the 
solvent  party.  If,  however,  a  profit  be  made,  it  must  be  divided  be- 
tween those  jointly  concerned.  A  contract  such  as  this  is  widely  dif- 
ferent from  one  in  which  the  party  liable  for  a  loss,  if  one  occur,  is 
solely  entitled  to  the  profit,  if  one  result.  Again,  the  power,  in  any 
event,  must  be  held  to  authorize  the  agent  to  draw  such  bills  only  as 
L.  E.  Stainback  might  himself  have  rightly  drawn.  In  the  case  be- 
fore us,  neither  L.  E.  Stainback,  alone,  nor  L.  E.  and  F.  C.  Stain- 
back, jointly,  had  any  right  to  draw  the  bill  in  question,  having  no 
funds  in  the  hands  of  the  drawees ;  and  having,  at  the  time,  no  other 
reason  to  suppose  it  would  be  accepted.  The  drawer  of  a  bill,  when 
he  negotiates  it,  is  to  be  understood  as  affirming  that  he  has  the  right 
to  draw.  In  the  case  before  us,  L.  E.  Stainback  is  made  to  falsely 
affirm  such  right ;  to  commit  a  fraud  by  means  of  the  falsehood ;  and 
all  this  under  color  of  the  authority  conferred  by  him.  Under  certain 
circumstances  a  principal  may  be  bound  by  the  act  of  his  attorney 
going  beyond  his  power,  yet  he  can  be  so  bound  only  to  an  innocent 
holder  for  value.     Read  &  Co.  are  not  holders  at  all ;  thev  knew 


co:v 

rfectly  well  that  L.  E.  Stainback,  either  s<  1  v  with  an- 

-    had  no  right  to  draw  on  them;  that  a  y  Iraw  bills 

Uv  would  not  extend  to  their  house,  in  the  e  of  busi- 

;is  between  them  and  the  drawers,  or  ' •■■\n. 

i  of  attorney  authorized  the  agent  to  l.  ecified 

:ng-  the  drawing  of  bills.    This,  as  already  to  be 

::v^nlying  to  the  rightful  drawing  of  bills  ..  -iness 

i.     Within  these  limits  the  agent  had  g-  ' 

'z  of  his  principal,  and  subject  him  to  *^'  ■>  n 

11  the  case  before  us  the  defendant  is 

i^-  as  drrr  upon  a  liabilitv  -.-^ 

he  is  SI.  in  alleged  contr.';  e 

liie  drawers  anu  acceptors,  to  make  tlie  <'  i- 

ors.    And  all  this  is  said  to  be  implied  in  ti-  i  g 

:  the  circumstances  existing  at  the  time.    It  cannot  be 
.ent  may,  by  implied  contract,  bind  his  pri'-^  ''    '  ^^'*- 
ts  within  which  he  might  bind  him  by  ex; 
be  held  that  a  power  to  draw  a  bill  in  itseli  gn  ^.-s  mc 
=->  make  another  original  and  express  contract  to  in- 
:r  against  his  acceptance.     If  the  attorney  could 
>  contract  of  indemnity,  it  is  impossible  to  supnosc 
iplied  from  his  drawing  the  bill, 
aestion  has,  to  some  extent,  been  anticipated  ii^  ^v. 
':.    There  are,  however,  certain  considerations  peculiar 
.  »f  the  case  which  require  some  notice.     It  is  well- 
lough  an  agent  may  in  fact  exceed  his  power,  yet  if 
-  within  its  Hmits.  and  deals  with  innoc  -^ 

j>al  will  be  bound.    Mann  v.  King.  6 
.  Aymar,  3  Hill  (N.  Y.)  262.    It 
-.  [  suffer  the  consequences  of  his 
;er  than  they  should  fall  on  innocent 
vever  well  established,  can  afford  r  a  a  o; 

icts  of  this  case.     They  dealt  wi  acting 

1   of  attorney,  and  as  already  sai'  led  as 

h  that  power  before  them..    The  t  their 

:ice  the  limits  prescribed  therein,  terms 

ruction  of  la\\ .     With  this  knowlc   .,-,  ...    .idieless 

I  contract,  which  is  not  one  of  those  specihed  in  the  power, 
^i'J^nal  contract  to  subject  the  drawers  to  a  liability  not  inci- 
;r  position  on  the  paper.    They  accepted  the  bill,  having  no 
;K-  drawe,  knew  that  their  acceptance  \\ 

f'-k  an)   -  i  holder  for  value;  they  relie 

F.  C.  for  indemnity ;  this 

■  letter  *;  ember  15,  1842,  the  1 

advising  the  drawees  of  the  bill  an  ;,  and 

'■•'  'ake  care  of  it;"  r>l'-.  '.-•i"^i^'  n-pir.i'r,.  ,.,  ,.    ;..•/,r^■h-^ 

vTnent  at  matin-i,  is  contai 


IRD   PEI 


VVhethe'  uithority  of  L.  E,  Stain- 

11;^  principal  a  is  part  oi  the  foundation 

-  «iiit.  or  tr.  ro  an  artivn  on  a  collateral 


•^tsirbnck  still  liable 

ng  between 

e  by  reason  and 

;'ivcn   : 

it,  to  act  in  the 

1.  m  th. 

of  an\  thing  to 

vjritv  to 

w.il.    "See 

"uiins^fs,  7  Barn. 

.1  (X;  Y.)  262; 

.  Doddridge,  i  Rob. 

ror  the  act  of 

the  agent  pn-i 

It  mav  ! ' 


Slor' 

iv  (>, 

Tty  dea!  nn  agent,  acting 

vtent  and  limits 
•-h  the  power  be- 
ll le  act  done  by  the 
.    .  by  the  power.     See 

^^eading  Ca-^es  392,  in  notes, 
facts  of  the  case,  are  decisive  ut 
1  drawn  in  the  business  of  L.  E. 
.ainback  exclusively.     It  was  not 
jiarate  name  of  L.  E.  Stainback. 
'   on  the  drawers  in  case  it  be  not 
i^iness  in  which  the  bill  is  drawn, 
-jii.  one  of  the  drawers  be  insolvent 

c.  the  whole  loss  must  fall  on  the 

.  be  made,  it  must  be  divided  be- 

>ntract  such  as  this  is  widely  dif- 

Hable  for  a  loss,  if  one  occur,  is 

■        '    V  'n,  the  power,  in  any 

■iw  such  bills  only  as 

iuly  drawn.    In  the  case  be- 

!  .  nor  I..  E.  and  F.  C.  Stain- 

bac-:  •  the  bill  in  question,  having  no 

■'■■    '  '■'•;  having,  at  the  time,  no  other 

.    The  drawer  of  a  bill,  when 

that  he  has  the  right 

':  is  made  to  falsely 

iiicans  of  the  falsehood  ;  and 

1  rr';d  by  him.    Under  cert:;'n 

;::rci!-i: -: ::';r,  the  act  of  Ilis  .•• 

:.r'jiiiir  bc\und  :....  "in'T  unl-,    in  nn  i 


older  for  value. 


CONTRACTS.  '  211 

perfectly  well  that  L.  E.  Stainback,  either  solely  or  jointly  with  an- 
other, had  no  right  to  draw  on  them ;  that  a  power  to  draw  bills 
rightfully  would  not  extend  to  their  house,  in  the  then  state  of  busi- 
ness relations  between  them  and  the  drawers,  or  either  of  them. 

The  letter  of  attorney  authorized  the  agent  to  do  certain  specified 
acts,  including  the  drawing  of  bills.  This,  as  already  stated,  is  to  be 
construed  as  applying  to  the  rightful  drawing  of  bills  in  the  business 
of  the  principal.  Within  these  limits  the  agent  had  authority  to 
pledge  the  credit  of  his  principal,  and  subject  him  to  the  consequent 
liability.  Yet  in  the  case  before  us  the  defendant  is  sued  not  upon 
a  direct  undertaking  as  drawer,  nor  upon  a  liability  incident  to  his 
position  on  the  bill ;  he  is  sued  upon  an  alleged  contract  to  transpose 
the  position  of  the  drawers  and  acceptors,  to  make  the  drawers  lia- 
ble to  the  acceptors.  And  all  this  is  said  to  be  implied  in  the  drawing 
of  the  bill  under  the  circumstances  existing  at  the  time.  It  cannot  be 
held  that  an  agent  may,  by  implied  contract,  bind  his  principal  be- 
yond those  limits  within  which  he  might  bind  him  by  express  con- 
tract ;  nor  can  it  be  held  that  a  power  to  draw  a  bill  in  itself  gives  the 
further  power  to  make  another  original  and  express  contract  to  in- 
demnify the  acceptor  against  his  acceptance.  If  the  attorney  could 
not  make  an  express  contract  of  indemnity,  it  is  impossible  to  suppose 
that  it  can  be  implied  from  his  drawing  the  bill. 

The  second  question  has,  to  some  extent,  been  anticipated  in  con- 
sidering the  first.  There  are,  however,  certain  considerations  peculiar 
to  this  branch  of  the  case  which  require  some  notice.  It  is  well- 
settled  that,  although  an  agent  may  in  fact  exceed  his  power,  vet  if 
he  apparently  keeps  within  its  limits,  and  deals  with  innocent  parties 
for  value,  the  principal  will  be  bound.  Mann  v.  King,  6  ]\Iunf.  428 ; 
North  River  Bank  v.  Aymar,  3  Hill  (N.  Y.)  262.  It  is  but  just  that 
the  principal  should  suffer  the  consequences  of  his  own  misplaced 
confidence,  rather  than  they  should  fall  on  innocent  parties.  This 
rule  of  law,  however  well  established,  can  afford  no  aid  to  Read  & 
Co.  upon  the  facts  of  this  case.  They  dealt  with  an  agent  acting 
under  power  of  attorney,  and  as  already  said,  must  be  regarded  as 
dealing  with  that  power  before  them.  They  were  bound,  at  their 
peril,  to  notice  the  limits  prescribed  therein,  either  by  its  own  terms 
or  by  construction  of  law.  With  this  knowledge,  they  nevertheless 
make  a  contract,  which  is  not  one  of  those  specified  in  the  power, 
but  an  original  contract  to  subject  the  drawers  to  a  liability  not  inci- 
dent to  their  position  on  the  paper.  They  accepted  the  bill,  having  no 
funds  of  the  drawers ;  they  knew  that  their  acceptance  would  make 
them  liable  to  any  subsequent  holder  for  value ;  they  relied  upon  the 
undertaking  of  F.  C.  Stainback  for  indemnity ;  this  undertaking  is 
contained  in  the  letter  dated  December  15,  1842,  the  day  the  bill  was 
discounted,  advising  the  drawees  of  the  bill  and  its  discount,  and 
promising  "to  take  care  of  it ;"  obviously  meaning  thereby  to  provide 
funds  for  its  payment  at  maturity.    This  undertaking  is  contained  in 


212  LIABILITY  TO  THIRD   PERSONS. 

a  letter  from  F.  C.  Stainback  to  Read  &  Co.,  given  in  evidence  upon 
the  trial.  The  letter  is  signed  by  F.  C.  Stainback  with  his  own  name 
only,  is  wholly  upon  his  own  business  with  them,  and  must  be  held 
to  be  an  express  guaranty  by  F.  C.  Stainback  alone.  This  excludes 
all  possibility  of  an  implied  guaranty  by  L.  E.  Stainback,  either  joint 
or  several. 

The  law,  as  here  declared,  required  that  the  first  and  fourth  in- 
structions should  have  been  given ;  and  seeing  that,  by  necessary 
legal  intendment.  Read  &  Co.  did  know  the  limits  of  the  attorney's 
power,  and  that  in  making  the  contract  sued  on  he  was  exceeding  his 
authority,  there  was  no  foundation  in  the  facts  of  the  case  for  the 
qualification  with  which  the  second  and  third  instructions  were  given. 
The  court,  therefore,  erred  in  annexing  such  qualification. 

I  am  of  opinion  to  reverse  the  judgment  of  the  circuit  court,  and 
remand  the  cause  for  a  new  trial,  with  directions  to  give  the  four  in- 
structions as  moved  for,  if  the  evidence  on  the  new  trial  shall  be  sub- 
stantially the  same  as  on  the  former  trial  and  if  the  instructions 
shall  be  again  asked  for. 

Allen  and  Daniel,  JJ.,  concurred. 

MoNCURE  and  Lee,  JJ.,  dissented. 

The  judgment  was  as  follows: 

It  seems  to  the  court  here,  that  the  power  of  attorney  from 
Littleberry  E.  Stainback  to  F.  C.  Stainback,  given  in  evidence  on  the 
trial  in  the  court  below,  did  not  give  authority  to  F.  C.  Stainback  to 
draw  the  bill  given  in  evidence,  binding  said  L.  E.  Stainback  as  a 
joint  drawer  with  F.  C.  Stainback;  and  that  the  circuit  court  erred 
in  refusing  to  give  the  first  instruction  moved  for  by  the  plaintiff  in 
error.  It  further  seems  to  the  court  here,  that  the  power  of  attorney, 
as  between  the  principal  and  agent,  gave  no  authority  to  the  agent  to 
draw  the  bill  aforesaid  for  the  accommodation  of  the  agent ;  and  that 
the  parties  dealing  with  the  agent,  and  having  the  means  of  knowing 
that  the  agent  was  exceeding  his  power  in  thus  drawing  the  bill  for 
his  own  benefit,  cannot  recover  of  the  principal. 

It  further  seems  to  the  court  that  the  facts,  that  F.  C.  Stainback 
held  the  bill  and  had  it  discounted  for  his  own  benefit ;  that  he  wrote 
the  letter  of  December  15,  1842,  addressed  to  the  defendants;  that 
they  accepted,  after  receiving  that  letter,  and  charged  their  accept- 
ance to  F.  C.  Stainback,  if  believed  by  the  jury,  taken  in  connection 
with  the  written  evidence,  were  sufficient  to  show  that  the  defendants 
had  the  means  of  knowing  that  F.  C.  Stainback,  the  agent,  in  pro- 
curing the  acceptance  of  defendants,  was  procuring  it  for  his  own 
accommodation  and  not  that  of  his  principal ;  and  that  the  principal 
was  not  bound ;  that  the  court  below  should  have  so  instructed  the 
jury,  and  that  it  erred  on  plaintiff's  second  motion  to  instruct. 

It  further  seems  to  the  court  here,  that  the  court  below  erred  in  its 
action  on  the  plaintiff's  third  and  fourth  motions  to  instruct ;  that  it 
should  have  given  the  instruction  above  stated  as  proper  to  be  given 


213 


to  instruct.    There^"  ^d-by  the 

'^■•'-■'--nt  be  re"-  ^'^--  ^'  - 

•  dants  h 

.  lor  a 
dl  be 


TOWLE  \ 

£ME  Court  of  New  Hampshire.    23  " 

1  phaeton,  of  tl-.e  v~'>:-  of  fifty  dollars. 

der  an  agreement 
..........  .c.......     ...:   ...  ...J  then  sell  it  if 

e.d  him  to  sell  it  for  forty-five  dollars  if  po 

'    '  much,  to  take  forty  dollars  for  it.    i.ant; 
an  attachment  and  advertised  to  be  sold. 
the  sale  of  his  property  was  over, 
p  the  phaeton  in  suit  for  sale,  ha^- 
a.  person  to  bid,  with  directions  not  to  let 
r,,r-r..  .",-,*!  A r:;^  fhe  Carriage  was  stru^^l^  '-'^ 
.  een  dollars,  and  he  pa; 
riage. 
v^tion,  testified  t; 


struck  oir  at  hib 
..as  made  to  hir- 
h  the  defendant 
^  ^  property  un'  ul 

d  the  defen  same 


ist  Tp);.  Co..  5  B.  &  a.  203.   S- 

•n  thev  Vnovr  to  ^?  an  Tf^mf  ^nd 


-•MX  .'.  ■,    I .,    : 

Assn.  Co.  V. 


ALir. 


dence  upon 

-  own. name 

ust  be  held 

his  excludes 

,  cither  i'^inf 


and  I-  t,  by  necessary 

lov    ;'-  f  the  attorney's 

IS  exceeding  his 

ase  for  the 

were  given. 

t  court,  and 
•ive  the  four  in- 
'•  1  '^hall  be  sub- 
instructions 


-tainback  ;  ■ 

i  .  ...uainback  as  a 

,  circuit  court  erred 

r  by  the  plaintiff  in 

>  power  of  attorney, 

to  the  ; 

acrent ;  . 

ad  havr  of  knowing 

^\V{-r   in:  •  he   li:  I '     1 1  .r 


it  he  wrote 


back,  the  agent,  in  pr- 

,,-,,>,.,■, ,T,^  ;;   ff)r  his  ow\: 

':ie  princir.^i; 


CONTRACTS.  213 

on  the  second  motion  to  instruct.  Therefore,  it  is  considered  by  the 
court,  that  the  said  judgment  be  reversed  and  annulled;  that  the 
plaintiff  recover  of  the  defendants  his  costs  in  this  court  expended ; 
that  the  verdict  of  the  jury  be  set  aside,  and  the  cause  remanded  for  a 
new  trial  to  be  had  therein  ;  upon  which  trial,  if  the  evidence  shall  be 
the  same  in  substance  as  that  at  the  former  trial,  the  circuit  court 
shall  conform  its  action  to  the  principles  hereby  declared.^ 


TOWLE  V.  LEAVITT. 
1851.     Supreme  Court  OF  New  Hampshire.    23  N.  H.  360. 

Replevin  for  a  phaeton,  of  the  value  of  fifty  dollars.  Plaintiff,  the 
owner,  left  the  carriage  with  one  Lane,  under  an  agreement  by  which 
he  was  to  make  some  repairs  on  it,  and  then  sell  it  if  he  could. 
Plaintiff  instructed  him  to  sell  it  for  forty-five  dollars  if  possible,  and 
if  he  could  not  get  that  much,  to  take  forty  dollars  for  it.  Lane's 
property  was  then  under  an  attachment  and  advertised  to  be  sold. 
It  consisted  of  carriages.  When  the  sale  of  his  property  was  over, 
Lane  told  the  auctioneer  to  put  up  the  phaeton  in  suit  for  sale,  hav- 
ing previously  employed  a  person  to  bid,  with  directions  not  to  let 
the  phaeton  go  for  under  forty  dollars.  The  carriage  was  struck  off 
to  the  defendant,  Leavitt,  for  seventeen  dollars,  and  he  paid  the 
amount  and  took  possession  of  the  carriage. 

Lane,  against  the  defendant's  objection,  testified  that  he  had  no 
authority  to  sell  for  less  than  forty  dollars.  Ricker,  the  person 
employed  by  Lane  to  bid,  testified  that  he  bid  seventeen  dollars,  and 
that  when  he  heard  the  carriage  struck  off  at  his  bid  left  the  place, 
under  the  belief  that  the  sale  was  made  to  himself.  The  court  in- 
structed the  jury  that  although  the  defendant  was  a  bona  fide  bidder, 
he  would  not  acquire  title  to  the  property  unless  he  was  in  fact  the 
highest  bidder ;  that  if  Ricker  and  the  defendant  both  bid  the  same 
sum,  and  the  auctioneer  did  not  notice  Picker's  bid  and  struck  off 
the  property  to  the  defendant,  and  no  objection  was  made  thereto,  be- 
cause Ricker  supposed  it  to  be  struck  off  to  himself,  still  he  acquired 
no  title,  unless  he  was  in  fact  the  highest  bidder ;  that  Towle,  having 

*  See  Murray  v.  East  India  Co.,  5  B.  &  A.  203.  See  also  Veatch  v.  Gilmer, 
(Tex.),  Ill  S.  W.  746. 

"Persons  dealing  with  one  whom  they  know  to  be  an  agent  and  to  be  exer- 
cising his  authority  for  his  own  benefit,  acquire  no  rights  against  the  principal 
by  the  transaction.  Such  a  transaction  is  usually  and  perhaps  properly  spoken 
of  by  the  courts  as  fraudulent,  but  however  honest  the  intention  of  the  parties, 
the  agent's  act  is  invalid  mainly  because  circumstances  known  to  both  prove 
it  to  be  ultra  vires."  Dixon,  J.,  in  Dowden  v.  Cryder,  55  N.  J.  L.  329,  331.  See 
also  Equitable  Life  Assn.  Co.  v.  Poe,  53  Md.  28. 


214  LIABILITY   TO  THIRD   PERSONS. 

instructed  Lane  not  to  sell  the  property  for  less  than  forty  dollars,  he 
had  no  authority  to  sell  it  for  less,  unless  the  limitation  was  intended 
to  be  kept  secret,  and  that  unless  it  appeared  that  the  limitation  was 
not  to  be  disclosed,  the  authority  of  Lane  was  limited  by  it,  and  un- 
less the  price  paid  for  the  property  was  forty  dollars,  he  could  not 
give  title  to  it.  Verdict  for  the  plaintiff,  which  the  defendant  moved 
to  set  aside. 

Eastman,  J.  (After  disposing  of  another  point) — The  questions 
connected  with  the  agency  of  Lane,  which  are  presented  by  the 
case,  are  more  intricate  than  the  one  already  considered,  and  it  has 
not  been  without  some  difficulty  that  the  court  have  arrived  at  a  con- 
clusion in  regard  to  them. 

Upon  the  facts  reported,  it  does  not  appear  that  Leavitt  knew  that 
the  carriage  had  ever  belonged  to  the  plaintiff.  This,  however,  would 
be  material  only  as  making  it,  or  not,  necessary  for  Leavitt  to  inquire 
into  the  nature  of  Lane's  agency  in  selling  the  property.  If  an 
agency  be  known,  and  it  is  special,  it  is  the  duty  of  the  party  who 
deals  with  the  agent  to  inquire  into  the  nature  and  extent  of  the 
authority  conferred  by  the  principal,  and  to  deal  with  the  agent  ac- 
cordingly. Snow  V.  Perry,  9  Pick.  542 ;  Story  on  Agency,  §  133 ; 
Deming  v.   Smith,  3  Johns.   Ch.   344;   Schimmelpenic  v.    Bayard, 

1  Pet.  264,  290 ;  Hatch  v.  Taylor,  10  N.  H.  547. 

But  where  the  agency  is  not  known,  and  the  principal  has  clothed 
the  agent  with  powers  calculated  to  induce  innocent  third  persons  to 
believe  that  the  agent  owned  the  property  or  had  power  to  sell,  the 
principal  is  bound,  and  strangers  will  not  suffer.  Story  on  Agency, 
§  93.  In  like  manner,  an  implied  authority  may  be  deduced  from  the 
nature  and  circumstances  of  the  particular  act  done  by  the  principal. 
If  the  principal  sends  his  commodity  to  a  place  where  it  is  the  or- 
dinary business  of  the  person  to  whom  it  is  confided  to  sell,  it  will 
be  intended  that  the  commodity  is  sent  thither  for  the  purpose  of 
sale.  And  where  an  article  is  sent  in  such  a  way,  and  to  such  a 
place,  as  to  exhibit  an  apparent  purpose  of  sale,  the  principal  will  be 
bound  and  the  purchaser  will  be  safe,  although  the  agent  may  have 
acted  wrongfully,  and  against  his  orders  or  duty,  if  the  purchaser  has 
no  knowledge  of  it.    Story  on  Agency,  §  94 ;  Paley  on  Agency,  167 ; 

2  Kent's  Com.  621 ;  Pickering  v.  Busk,  15  East  38;  Saltus  v.  Everett, 
15  Wend.  267;  Dyer  v.  Pearson,  3  Barn.  &  Cress.  42;  Hern  v.  Nich- 
ols, I  Salk.  288 ;  Sandford  v.  Handy,  23  Wend.  260. 

Lane  was  a  carriage-maker.  His  business  was  to  make  and  sell 
carriages,  and  also  to  repair  them  when  brought  to  his  shop  for  that 
purpose,  as  was  the  case  with  this  carriage  of  Towle.  If  Lane's  sole 
business  had  been  to  make  and  sell  carriages,  the  deposit  of  the  one 
in  question  with  him  might  come  within  the  principle  of  the  preced- 
ing cases ;  but  such  was  not  the  fact ;  and  a  purchaser  would  have  no 
such  right  to  presume  that  a  second-hand  carriage  in  Lane's  posses- 
sion was  his  as  would  protect  him  from  the  claim  of  a  bo}ia  fide 


ihat  thi-  .'  ;  ' 

',  ot  Lane,  which  had  be< 

.     c./disi-v  — ^        ■•      --     ''•-     •■•- 

n  terms,  but  ;ind 

■It  that  the  carr;a^,L  ue;:;!'  .jver 

,0  been,  we  think  that  tlie  was 

'      '            ■  b  Lane's  circ;  ich- 

-  ■property,  a;  oon 

.  ..^.......  ......... ...ana  was  '-i'' 

in  selling-  the  property,  or 
i..'   property  was  ■        ■  ■  '^cd  as  to  piu 
uestion  arises,  ^  he  private  1 

i     ivitt,  not  to  sell  :iK;  carnage  under  { 
■  a  limitation  \r>  bis  atitborit-v',  or 

j, 

.general  agent.      .  .  c.  ,  .^     - 

tters  coming  within  the  proper  and  legitimate  scOi 
♦o  i>-  transacted,  although  he  violates  by  these  cv .     i.i^ 
'  1 '        ns ;  for  his  authority  cannot  be  limited  by  any  pri- 
.   unless  known  to  the  person  dealing  with  him- 
ckett,  15  East  400;  Lightboy  v.  North  American 
I.  22;  Lobdell  V.  Baker,  i  Met.  202  (35  Am.  Dec. 
-<iv..  620;  Allen  V.  Ogden,  i  Wash.  174;  Story  on 
Agency,  200 ;  Penn  v.  Harrison,  3  T.  R. 
,..  M. -•-.... 1  Co.,  15  Johns.  44  (8  Am.  Dec.  2T''> 
a  special  agent,  the  law  appears  to  be  eqi 
'      '  "      above  quoted^  that  if  he  ex 
not  bind  hi?  principal.     Btit 
between 
specific  i 
1  the  private  instructions  given  t 
s  limited  in  a  bona  Ude  m-'  ■  '    - 
by  the  agent,  and  is  d) 
-   ""rture  from  such  auf 
! :  but  where  the  am 


•  of  sucii  a  nativ  vould  not 

.y  was  made  (e\  i.i^  i-l^<~-  •' 

!  the  agent  to  m. 
;  made,  for  it  w^.'ui.    1,1  u 
r.  10  N.  H.  538;  Bryant 
')i  the  qvu'    ' 

•rre   for  '■ 


1  w     ( 


^n    i'KRSONS. 

s  than  forty  dollars,  he 

„  Hmitatiou  was  intended 

lied  that  the  limitation  was 

J  was  limited  by  it,  and  un- 

forty  dollars,  he  could  not 

which  the  defendant  moved 

point) — The  questions 

II  are  presented  by  the 

c  more  .  already  considered,  and  it  has 

I  ..-^ii.,  ^h  '  .--Miri  !-.M,-,.  irrived  at  ■'  '^■'T- 

■s  !)'  •;  ;.;  uvitt  knew  mat 

)  the  pki  : ! owever,  would 

be  ni;:  not,  net  .  avitt  to  inquire 

into  ;■  iCy  in  s.  roperty.     If  an 

agenc\  ial,  it  i$  the  duty  of  the  party  who 

■ipi'-  into  the  nature  and  extent  of  the 

,  and  to  deal  with  the  agent  ac- 

IV  i^-  54-"  '''^ ^n  Agency,  §  133; 

'1.   344;  ilpenic  V.   Bayard, 

T,  10  N.  li.  . 

Known,- and  ;.  :})al  has  clothed 

I  to  induce  inn<xeat  third  persons  to 

■  "toiKitv  Mr  had  power  to  sell,  the 

ff er.    Story  on  Agency, 

i  ....lu...  M  ,  liiay  be  deduced  from  the 

particular  act  done  by  the  principal. 

'■     ;  ;  a  place  where  it  is  the  or- 

it  is  confided  to  sell,  it  will 

^ent  thither  for  the  purpose  of 

'  in  such  a  way,  and  to  such  a 

-ose  of  sale,  the  principal  will  be 

:  e,  although  the  agent  may  have 

lers  or  duty,  if  the  purchaser  has 

"^       •  ">  '        ,T  Agency,  167; 

Itus  V.  Everett, 

42  ;  Hern  v,  Niclr 

make  and  sell 

)  s  shop  for  that 

v  iowle.    If  Lane's  sole 

-.,  the  deposit  of  the  one 

principle  of  the  preced- 

.  r:  purchaser  would  have  no 

:•■  'i  carriage  in  Lane's  posses- 

.  ptoicci  'le  claim  of  a  bona  fide 


CONTRACTS.  21 5 

owner.  It  is  to  be  observed,  too,  that  this  carriage  was  set  up  and 
sold  after  the  property  of  Lane,  which  had  been  previously  attached 
and  advertised,  was  disposed  of  by  the  officer.  The  case  does 
not  so  state  in  terms,  but  probably  it  was  well  known  to  Leavitt  and 
others  present  that  the  carriage  belonged  to  Towle.  But,  however 
that  mav  have  been,  we  think  that  the  situation  of  the  property  was 
such,  taken  in  connection  with  Lane's  circumstances  and  the  attach- 
ment and  advertisement  of  his  property,  as  to  put  a  purchaser  upon 
inquiry. 

Assuming  that  Leavitt  knev/  that  Lane  was  acting  as  the  special 
agent  of  Towle  in  selling  the  property,  or  proceeding  upon  the 
ground  that  the  property  was  so  situated  as  to  put  a  purchaser  upon 
inquiry,  the  question  arises,  whether  the  private  instructions  given 
by  Towle  to  Leavitt.  not  to  sell  the  carriage  under  forty  dollars,  were 
in  the  nature  of  a  limitation  to  his  authority,  or  were  instructions 
not  to  be  disclosed. 

The  acts  of  a  general  agent,  known  as  such,  govern  his  principal 
in  all  matters  coming  wuthin  the  proper  and  legitimate  scope  of  the 
business  to  be  transacted,  although  he  violates  by  these  acts  his 
private  instructions ;  for  his  authority  cannot  be  limited  by  any  pri- 
vate instructions,  unless  known  to  the  person  dealing  with  him. 
Whitehead  v.  Tuckett,  15  East  400;  Lightboy  v.  North  American 
Ins.  Co.,  23  Wend.  22;  Lobdell  v.  Baker,  i  Met.  202  (35  Am.  Dec. 
358)  ;  2  Kent's  Com.  620;  Allen  v.  Ogden,  i  Wash.  174;  Story  on 
Agency,  §  126;  Paley  on  Agency,  200;  Penn  v.  Harrison,  3  T.  R. 
757;  Mann  v.  Commission  Co.,  15  Johns.  44  (8  Am.  Dec.  219). 

With  regard  to  a  special  agent,  the  law  appears  to  be  equally  well 
settled,  by  the  authorities  above  quoted,  that  if  he  exceeds  the  au- 
thority given,  his  acts  will  not  bind  his  principal.  But  it  is  to  be  ob- 
served that  a' distinction  is  to  be  taken  between  the  limited  authoritv 
of  a  special  agent,  one  appointed  for  a  specific  purpose,  to  do  certain 
and  specified  acts,  and  the  private  instructions  given  to  such  agent. 
Where  the  authority  is  limited  in  a  bona  Ude  manner,  and  the  limita- 
tion is  to  be  disclosed  by  the  agent,  and  is  disclosed  either  with  or 
without  inquiry,  any  departure  from  such  authority  or  instructions 
w'ill  not  bind  the  principal :  but  where  the  authority  or  instructions 
given  are  in  the  nature  of  private  instructions,  and  so  designed  to  be, 
they  will  not  be  binding  upon  the  parties  dealing  with  the  agent. 
And  if  the  instructions  are  of  such  a  nature  that  they  would  not  be 
communicated  if  an  inquiry  w^as  made  (even  though  it  be  the  duty 
of  the  person  dealing  with  the  agent  to  make  the  inquiry),  it  is  not 
necessary  that  it  should  be  made,  for  it  would  not  be  communicated 
if  made.  Hatch  v.  Taylor,  10  N.  H.  538 :  Bryant  v.  Moore,  26  Me. 
84  (45  Am.  Dec.  96).  L^pon  this  view  of  the  question,  it  w'ould  seem 
that  the  directions  not  to  sell  the  carriage  for  less  than  forty  dollars 
would  be  in  the  nature  of  private  instructions.  The  fact  does  not 
.seem  to  us  to  have  been  intended  to  be  communicated.    This,  how'- 


2l6  LIABILITY   TO  THIRD   PERSONS. 

ever,  may  admit  of  some  doubt,  and  were  the  case  to  turn  upon  this 
point,  a  more  minute  examination  would  perhaps  be  necessary. 

But  it  appears  to  the  court  that  there  is  one  point  that  must  settle 
the  case  for  the  plaintifif.  This  carriage  was  sold  at  auction  ;  and  this 
we  think  must  be  regarded  as  exceeding  any  authority  or  instructions 
given,  that  could  bind  the  plaintiff.  The  defendant,  knowing  the 
property  to  be  the  plaintiff's,  or  if  he  did  not  know  it,  the  situation 
of  the  property  being  such  as  to  render  it  incumbent  on  him  to  make 
all  necessary  inquiries,  was  bound,  on  seeing  it  exposed  to  sale  in  an 
unusual  manner,  to  inquire  as  to  the  right  of  Lane  thus  to  sell  it. 
Had  he  done  this  probably  all  difficulty  would  have  been  avoided; 
and  whether  the  directions  not  to  sell  for  less  than  forty  dollars  be 
considered  as  a  limitation  upon  the  agent's  authority  or  as  private 
instructions,  nothing  was  said  about  Lane's  selling  at  auction,  and  no 
inquiries  made  in  regard  to  it.  A  sale  at  auction  implies  a  sale  at 
any  price  that  may  be  offered.  It  is  ordinarily  the  last  resort  to  re- 
duce property  into  money,  and  we  should  be  slow  to  ratify  the  doings 
of  an  agent  clothed  with  the  usual  powers  to  sell  who  should  pursue 
such  a  course. 

Had  there  been  any  evidence  that  Towle  authorized  Lane  to  sell 
the  carriage  at  auction,  so  that  the  question  could  have  been  properly 
submitted  to  the  jury,  this  obstacle  in  the  defendant's  case  might 
perhaps  have  been  overcome  ;  but  we  find  nothing  that  would  warrant 
the  court  in  giving  the  instructions  desired  in  this  respect.  A  court 
cannot  be  required  to  instruct  the  jury  upon  any  supposed  state  of 
facts. 

The  sale,  then,  must  be  held  void,  and  as  a  necessary  consequence, 
the  defendant  has  no  right  to  the  property,  and  cannot  sustain  his 
defense,  notwithstanding  there  may  have  been  error  in  some  of  the 
rulings  made  against  him.^     *     *     * 

Judgment  on  the  verdict.- 


BAKER  V.  KANSAS  CITY,  ETC.,  R.  R.  CO. 

1886.     Supreme  Court  of  Missouri.     91  Mo.  152. 

Brace,  J. — This  action  was  brought  to  recover  damages  for  the 
failure  of  defendant  to  furnish  a  certain  number  of  cars,  at  certain 
stations,  on  a  specified  day.  The  petition  alleges,  "that  at  the  times 
hereinafter  mentioned  the  defendant  was,  and  it  still  is,  a  corpo- 

^A  portion  of  the  opinion  is  omitted. 

^  "The  authority  of  an  agent  must  be  determined  by  the  nature  of  his  busi- 
ness and  the  apparent  scope  of  his  employment  therein.  _  It  cannot  be  nar- 
rowed by  private  or  undisclosed  instructions,  unless  there  is  something  in  the 
nature  of  the  business  or  the  circumstances  of  the  case  to  indicate  that  the 


y  cl  in  the 
mon  carrier  for  the  271; 

.,  :u  consicU""    '■"•••■•  •'•■■I  ^;->e^- 

that  he  wc 

City  and  Man.Ki.uG,  .. mj-^lu!. 
,  i88r,  rr-adv  for  shipment,  r. 


'^aid  stations  of  ity  ana 

V,  i88r,  23  oars  .  .  .  ness  to  r.  . 

id  cattle  and  iiop^s  as  aforesaid;  that  : 
ertaking  anc        •  ^^    drove  his  ? 

iOns.  afid  on  rst  day  of  Vi. 

■  be  shipped  ov 
..tie  and  hogs  si.^ 
^i:ates  that  the  defen  : 
_,  ..reement,  failed  to  prov:... 

I  ess,  at  its  said  stations  or  either  of  them,  o 

1 88 1,  any  cars  in  which  to  receive  and  t..-,  - 
IS  aforesaid,  and  did  not  furnish  or  provide  such 
,  1881,  by  reason  of  which  said  failure 
ars,  at  the  time  and  places  agreed  iipon 
:"5  said  cattle  were  detained  at  said  stat 
'uld  not,  be  sIvd- ■'  therefrom  on  their  -•, 
day  of  Jun.  >  plaintiff's  dam;: 

then  specific  ticulars  of  tb"  • 

;  defendant"  Defendant' 


he  Dnngs  the  co 

*    ih;-    .-rvirt    It,     '■ 


nt,  and  that  he  had 
—  committed  by  tht 


,•;     -^•-    Mrr,^U'A    ,,nv 


4^/-44J 


2l6 


'-:  ■  ii:     v.'i  .  .i  1  •  ,     L..|ll.J  1     LI  M  - 

c  niinul  cessary. 

point,  that  nnist  settle 

•  id  at  auction  ;  and  this 

rity  or  instructions 

ilant,  knowing  the 

1  not  know  it,  the  situation 

...  incumbent  on  him  to  make 

seeing  it  exposed  to  sale  in  an 

c  right  of  l.ane  thus  to  sell  it 

'  nltv  would  have  been  avoided, 

''  rty  dollars  be 

or  as  private 

12V  it  auction,  and  no 

m.  .  j.._.i  implies  a  sale  at 

an  V  the  last  resort  to  re - 

on:  -■  to  ratify  the  doings 

ot  \'ho  should  pursue 

that  To\  '^i?ed  Lane  to  sell 

been  properly 
.    •  :<  ;s  case  might 

we  iind  nothinj.;  ihat  would  warrant 
ns  desired  in  this  respect.  A  court 
le  jury  upon  any  supposed  state  of 

necessary  consequence, 
l\,  and  cannot  sustain  his 
been  error  in  some  of  the 


iS'^  lissouRi.    91  Mo.  132. 

~  recover  damages  for  tlu 
:'   :'    -  of  cars,  at  certain 
,  ''that  at  the  time- 
he  ,  and  it  still  is,  a  corpo 


<y  the  nature  of  his  busi 
Ml  the 


CONTRACTS.  217 

ration  organized  and  existing  under,  and  by  virtue  of  the  laws  of  the 
state  of  Missouri,  and  engaged  in  the  business  of  transporting  goods 
and  chattels  as  a  common  carrier  for  hire ;  that  on  or  about  the  27th 
day  of  May,  1881,  in  consideration  of  the  promise  then  and  there 
made  by  plaintiff  that  he  would  drive  to  defendant's  stations  in  the 
towns  of  Mound  City  and  Maitland,  Missouri,  and  have  there  on  the 
31st  day  of  May,  1881,  ready  for  shipment,  and  to  be  shipped  over 
defendant's  railroad  to  Chicago,  Illinois,  cattle  and  hogs  sufficient  to 
fill  23  cars,  the  defendant  undertook  and  agreed  to  provide,  furnish, 
and  have  at  its  said  stations  of  Mound  City  and  Maitland,  on  the 
30th  day  of  May,  1881,  23  cars  in  readiness  to  receive  and  trans- 
port plaintiff's  said  cattle  and  hogs  as  aforesaid ;  that  plaintifif,  rely- 
ing on  said  undertaking  and  agreement,  drove  his  said  cattle  and 
hogs  to  said  stations,  and  on  said  thirty-first  day  of  May,  1881,  had 
at  said  stations,  ready  for  shipment  and  to  be  shipped  over  defend- 
ant's said  railroad  to  Chicago,  Illinois,  cattle  and  hogs  sufficient  to 
fill  twenty-three  cars.  Plaintiff  further  states  that  the  defendant,  dis- 
regarding its  said  undertaking  and  agreement,  failed  to  provide,  fur- 
nish, or  have  in  readiness,  at  its  said  stations  or  either  of  them,  on  said 
thirtieth  day  of  May,  1881,  any  cars  in  which  to  receive  and  trans- 
port plaintiff's  cattle  as  aforesaid,  and  did  not  furnish  or  provide  such 
cars  until  the  3d  day  of  June,  1881,  by  reason  of  which  said  failure 
of  defendant  to  provide  said  cars,  at  the  time  and  places  agreed  upon 
as  aforesaid,  plaintiff's  said  cattle  were  detained  at  said  stations, 
and  were  not,  and  could  not,  be  shipped  therefrom  on  their  way  to 
Chicago  until  the  4th  day  of  June,  1881,  to  plaintiff's  damage  in  the 
sum  of  $3,000 ;"  and  then  specifies  the  particulars  of  the  losses  and 
damages  by  reason  of  defendant's  failure.  Defendant's  answer  was, 
in  effect,  a  denial  that  the  defendant  ever  entered  into  the  contract 
set  out  in  the  petition.  After  the  testimony  was  all  in,  the  court  in- 
structed the  jury  to  find  for  the  defendant ;  thereupon  plaintiff  took 
a  nonsuit,  with  leave,  and  afterwards  moved  to  set  the  same  aside, 
which  motion  being  overruled,  he  brings  the  case  here  by  appeal,  and 
assigns  for  error  the  action  of  the  court  in  instructing  the  jury  to 
find  for  the  defendant. 

The  only  question  presented  for  our  consideration  on  the  record  is, 
was  there  evidence  introduced  upon  the  trial  tending  to  prove  that  de- 
fendant entered  into  the  contract  with  the  plaintiff  set  out  in  the 
petition?  It  is  claimed  by  the  plaintiff  that  the  contract  was  made 
with  James  E.  Smith,  the  defendant's  general  freight  agent ;  and  un- 
less  there  was  evidence  tending  to  prove  that  such  contract  was  made 
with  said  general  freight  agent,  and  that  he  had  authority  to  make 
the  contract,  there  was  no  error  committed  by  the  trial  court.    The 

agent  is  acting  under  special  instructions  or  limited  powers."  Wells,  J.,  in 
Markey  v.  Mutual  Benefit  Life  Insurance  Co.,  103  Mass.  78,  92. 

See  article,  "Nature  and  Extent  of  an  Agent's  Authority,"  by  Floyd  R. 
Mechem,  in  4  Mich.  Law  Rev.  433,  437-443. 


'2l8  LIABILITY   TO   THIRD    PERSONS. 

•evidence  of  plaintiff  is  relied  upon  to  show  that  the  contract  was 
made.  He  states,  substantially,  as  follows,  in  chief :  "On  May  27  I 
came  from  home  up  to  Holt  county,  and  stopped  in  St.  Joe.  I  met 
Mr.  Smith.  Mr.  Smith  was  general  freight  agent  of  the  Kansas  City 
■&  Council  Bluff's  Railroad.  I  told  him  I  wanted  twenty-three  cars  on 
.the  30th,  eight  at  Mound  City  and  fifteen  at  iMaitland,  for  Chicago. 
I  asked  him  if  he  could  get  the  cars,  and  he  said  he  could,  and  called 
a  clerk  to  take  down  the  order,  and  asked  me,  would  I  have  the  cat- 
tle there  ?  I  said  I  would,  and  wanted  the  cars  on  Monday,  so  that  I 
could  bed  them.  I  told  him  I  wanted  the  cars.  He  asked  me  if  I 
could  have  the  cattle  there.  I  said  I  would.  He  then  said  I  could  have 
the  cars,  and  called  the  clerk  to  take  the  order,  and  then  told  me  to 
see  the  agents  at  Mound  City  and  Maitland.  I  went  to  Mound  City 
and  Maitland,  and  spoke  to  them  as  Smith  had  requested  me  to  do. 
I  made  the  arrangements  with  Mr.  Smith.  I  did  not  see  any  other 
party;"  and  on  cross-examination:  "I  told  him  (Smith)  I  wanted 
twenty-three  cars  at  Mound  City  and  Maitland — eight  at  Mound 
City  and  fifteen  at  Maitland;  asked  if  I  could  have  the  cars.  He 
said  I  could,  and  asked  me  if  I  would  bring  the  cattle  in;  I  said 
I  would,  and  he  called  the  clerk  and  gave  him  the  order.  I  told 
him  I  wanted  the  cars  May  30,  and  that,  if  I  had  the  assurance  of 
•cars,  the  stock  would  be  there.  He  then  said  he  would  have  the 
cars  there.  I  am  sure  he  made  that  expression.  He  then  called  the 
clerk  to  take  down  the  number  of  cars.  I  suppose  the  clerk  did  take 
it  down.  Saw  him  write  at  Smith's  dictation.  Nothing  further 
occurred  at  the  time." 

We  think  this  evidence  tends  to  prove  the  contract  between  plain- 
tiff and  Smith.  It  shows  a  concurrence  of  the  minds  of  both  parties 
at  the  same  time,  in  a  mutual  undertaking  having  the  same  object  in 
view,  /.  e.,  the  shipment  of  plaintiff's  cattle  to  Chicago  in  defendant's 
cars ;  and,  interpreted  in  the  light  of  common  sense  and  ordinary 
.good  faith,  mutual  and  reciprocal  promises  from  each  to  the  other — 
the  promise  of  Smith  being  to  furnish  the  cars  at  the  stations  named 
at  the  time  stated,  and  the  promise  of  plaintiff  being  to  have  his  cattle 
at  the  stations  named  at  the  time  stated,  the  promise  of  each  being 
a  good  consideration  for  the  promise  of  the  other,  and  upon  which 
each  had  a  right  to  rely  and  act. 

The  inquiry  remains,  did  the  evidence  tend  to  show  that  Smith 
had  authority  to  make  the  contract  ?  It  appears  unequivocally  from 
the  evidence  that  during  the  months  of  May  and  June,  1881,  Smith 
was,  and  for  a  year  and  more  prior  to  that  date  had  been,  de- 
fendant's general  freight  agent ;  that  his  office,  as  such,  was  at  St. 
Joseph ;  that  the  city  of  Chicago  is  beyond  the  terminus  of  defend- 
ant's line  of  railroad ;  that  its  freight  was  carried  to  that  city  from 
"Burlington  Junction,  Missouri,  by  the  Chicago,  Burlington  &  Quincy 
Railroad,  by  virtue  of  a  traffic  arrangement  existing  between  these 
companies ;  that  Maitland  and  Mound  City  are  stations  on  defend- 


iroad  at  mce  irom  m 

..>  iendatit  b;...  ....  .  n  agents  at  ea...     .    .-  - 

\  J  prove  that  the  contract  was  made  between  Smith  at 

the  office  of  the  sr-eneral  freight  agent  at  St.  Jv  sv.  -^   ^  '^-e 

vjou';;  occasion  plaintiff's  cattle  had  been  shipped  i 

road  upon  a  contract  ma<le  on  a 

'  pbantiff  had  apphed  by  ma'  f^'-e 

oi  trie  geat-r  The  foregoing 

lied  upon  in  ■.  that  Smith  had 

contract  sued  on.     it  may  be  conceded  that  thert.  -: 

evidence  tending  to  show  that  authority  to  make 

on  had  been  expressly  conferred  upon  the  agent,  ." 

cz-irdine;  ::;>  '1  •.  ^'•eneral  usage  and  cu.>(.ora  of  defen'; 

rnaku--  -    -         contract  was  with-t-  Oie  apparent 

and   or'iin -. '  ,     ':.\>}:>;  and  if  he  Mi  authority   ;l 

tnc   '!eic;ia:  !;       l  .[   him   out,   vi  ited   Smith    to   I 

self  out,  to  piauitiff  and  the  world  as  naving  such  power.    Th 

tract  itself  slv  '\\  s  that  Smith  held  himself  out  to  plaintiff  as  1; 

the  power. to  nake  the  contract,  and  also  that  plaintiff  l>eiiev€f 

Smith  did  have  such  power. 

Was  he  justified  in  entertaining  that  belief,  and  acting  upon  it  bv 
reason  of  the  apparent  authority  with  which  the  defendant  had 
clothed  him  I*  At  the  time  this  contract  was  made  the  defendant 
was  h(  '  :ith  out  to  plaintiff  and  the  world  as  its  general 

freight  ..„ ^^  it  had  been  doing  for  more  than  a  year  immediit^-Mv 

preceding  that  date.    It  had  conferred  upon  him  the  title,  and  - 

him  in    '  ■    ".  in  that  department  of  its  business,  r] 

the  trai  freight  from  one  place  to  another  fo-  i 

in   ■  :  ■  '   .  ss  it  held  Sr     '  '" 

liv  It,  as  one  au  ; 

(U  in  .that  particular  line  or  de 

lin         ^  .  jsiness  Smith  was  held  out, 

ing  authority,  but  as  having  general  authority; 

good  fairii  requires  tiiat  the  principal  should  be  ^ 

of  the  atjeut  within  tlie  scope  of  his  general 


id  can  have  no  effect  on  the  r  remedies 

lio  have  no- knowledge  of  the  .>....  .v  ti'^r^'^  '^'-  ■''^' 
apparent  authority.     Grafius  v.  Land 

.  and  can  be  no  legal  : 

,1  on  any  different  foe. 
.  iii  regard  to  the  same  business.    AU^iin.^ 


"■>  Baker  a  v.  Mo.  P 


uat  the  contract  was 

.    hief:   "On  May  27  I 

1    •      in  St.  Joe.   I  mei 

...   -vxi  .^.iu  igeiii.  ui'  the  Kansas  City 

'.  Bluffs  '  wanted  twenty -three  cars  on 

\':itn  at  Maitland,  for  Chic.";' 

id  he  said  he  could,  and  c<i.. 

^  ed  me,  would  I  have  the  cat- 

,  ihe  cars  on  Monday,  so  that  1 

iittd  the  cars.    He  asked  me  if  1 

'  would.  He  then  said  I  could  have 

1;.^    ars  ke  the  order,  and  then  told  me  to 

M, /'I'lnd.    I  went  to  Mound  Cit} 
>!  had  requested  me  to  do. 
r.  Smith.    I  did  not  see  any  ot'.' 
•1:    ''T  toV)  him  (Smith)   I  wa:.  . 

:iid — eig'ht  at  Moun<' 

:...  ;.  .    ...  1  have  the  cars.    He 

!    would  bring  the  cattle  in ;  I  said 

';  and  gave  him  the  order.    I  toUl 

id  that,  if  I  had  the  assurance  of 

■  ■>.   c'    :\  said  he  would  have  th*. 

.  ..vision.    He  then  called  the 

cars.    I  suppose  the  clerk  did  '■  : 
.iitir^   ('ir^Mlinn.      Nolhine  fn''\ 

r^nce  of  the  minds  of  both  parties 

ertaking  having  the  same  object  iii 

't's  cattle  to  Chicago  in  defendant's 

'^t  of  coinmon  sense  and  ordinary 

promises  from  each  to  the  other — 

;iish  the  cars  at  the  staciolis  named 

of  plaintiff  being  to  have  his  cattle 

stated,  the  promise  of  each  being 

lise  of  the  p'--   1  upon  wl    ^'• 

■  '     -       .:.  that  S- 

.  .:  ,...-.  .-  .m/  .:.;vocally  I.  ■ 
j'  May  and  June,  1881,  Smith 
:  to  that  date  had  been,  de- 
iiis  office,  as  such,  was  at  St. 
yond  the  terminus  of  defend- 
was  carried  to  that  city  from 
'  ■  jgo.  Bur!"  '  "  ■  ' 
■t:  exict-' 

oil  dcfeau- 


I 


CONTRACTS.  2ig 

ant's  railroad  at  some  distance  from  St.  Joseph,  and  from  each  other ; 
that  defendant  had  station  agents  at  each  of  said  stations ;  and  tended 
to  prove  that  the  contract  was  made  between  plaintiff  and  Smith  at 
the  office  of  the  general  freight  agent  at  St.  Joseph;  that  on  a  pre- 
vious occasion  plaintiff's  cattle  had  been  shipped  from  Kansas  City 
over  defendant's  road  upon  a  contract  made  with  Smith,  and  on  a 
previous  occasion  plaintiff  had  applied  by  mail  for  cars  to  the  office 
of  the  general  freight  agent.  The  foregoing  is  all  the  evidence  re- 
lied upon  in  this  case  to  show  that  Smith  had  authority  to  make  the 
contract  sued  on.  It  may  be  conceded  that  there  is  nothing  in  the 
evidence  tending  to  show  that  authority  to  make  the  contract  sued 
on  had  been  expressly  conferred  upon  the  agent,  Smith,  or  that,  ac- 
cording to  the  general  usage  and  custom  of  defendant's  railroad,  the 
making  of  such  contract  was  within  the  apparent  scope  of  his  usual 
and  ordinary  duties ;  and  if  he  had  such  authority  it  is  because 
the  defendant  held  him  out,  or  permitted  Smith  to  hold  him- 
self out,  to  plaintiff  and  the  world  as  having  such  power.  The  con- 
tract itself  shows  that  Smith  held  himself  out  to  plaintiff  as  having 
the  power  to  make  the  contract,  and  also  that  plaintiff  believed  that 
Smith  did  have  such  power. 

Was  he  justified  in  entertaining  that  belief,  and  acting  upon  it  by 
reason  of  the  apparent  authority  with  which  the  defendant  had 
clothed  him?  At  the  time  this  contract  was  made  the  defendant 
was  holding  Smith  out  to  plaintiff  and  the  world  as  its  general 
freight  agent,  as  it  had  been  doing  for  more  than  a  year  immediately 
preceding  that  date.  It  had  conferred  upon  him  the  title,  and  placed 
him  in  that  position,  in  that  department  of  its  business,  devoted  to 
the  transportation  of  freight  from  one  place  to  another  for  hire,  and 
in  that  particular  line  of  its  business  it  held  Smith  out  to  the  plaintiff 
and  the  world  as  its  general  agent,  as  one  authorized  to  transact  all 
defendant's  business  in  that  particular  line  or  department.  In  that 
line  of  defendant's  business  Smith  was  held  out,  not  merely  as  hav- 
ing authority,  but  as  having  general  authority;  "and  in  such  cases 
good  faith  requires  that  the  principal  should  be  held  bound  by  the  acts 
of  the  agent  within  the  scope  of  his  general  authority."  Story  Ag., 
§  127.  When  the  principal  puts  the  agent  forward  as  a  general  agent, 
or  places  him  in  a  position  where  others  are  justified  in  the  belief  that 
his  powers  are  general,  the  restrictions  that  may  be  imposed  pri- 
vately on  the  agent  will  be  immaterial,  except  as  between  him  and 
the  principal,  and  can  have  no  effect  on  the  rights  or  remedies  of 
third  persons  who  have  no  knowledge  of  the  restrictions  or  limita- 
tions upon  his  apparent  authority.  Grafius  v.  Land  Co.,  3  Phila. 
447.  And  there  is  no  reason,  and  can  be  no  legal  principle,  that  will 
put  the  agent  of  a  corporation  on  any  different  footing  than  an  agent 
of  an  individual  in  regard  to  the  same  business.  Adams  M.  Co,  v. 
Senter,  26  Mich.  yT,. 

Henry,  J.,  in  Grover  &  Baker  S.  M.  Co.  v.  "Slo.  Pac.  Ry,  Co.,  70 


220  LIABILITY   TO   THIRD   PERSONS. 

Mo.  672,  in  distinguishing  the  powers  of  a  special  from  those  of  a 
general  freight  agent,  approved  the  doctrine  laid  down  by  Suther- 
land, J.,  in  Burtis  v.  Buffalo  &  S.  L.  R.  Co.,  24  N.  Y.  274,  "that  if 
defendant  had  the  power  to  make,  or  authorize  the  making  of, 
such  a  contract,  then  the  person  acting  as  the  general  freight  agent 
should  be  deemed  to  have  been  clothed  with  all  the  power  to  make 
contracts  for  freight,  or  in  respect  to  the  carrying  and  delivery  of 
freight  that  the  principal  had."  There  is  no  question  as  to  the  power 
of  the  defendant  to  make  the  contract  in  this  case,  and  it  was  a  con- 
tract for  freight — a  contract  having  for  its  object  the  shipment  of 
plaintiff's  stock  over  defendant's  road  for  him,  on  a  certain  day, 
from  two  of  its  stations  to  Chicago.  The  leaving  the  cars  and  the 
cattle  at  those  stations  on  that  day  was  not  the  end  and  object  of  the 
contract,  but  means  by  which  the  object  was  to  be  accomplished.  "A 
grant  of  general  authority  includes  within  it  all  the  necessary  and 
usual  means  of  executing  it  with  effect,  and  all  the  mediate  pow- 
ers necessary  to  the  end,  and  incident  to  the  primary  power, 
although  not  expressly  given."    Story,  Ag.,  §  58. 

From  the  foregoing  it  appears  that  the  defendant,  having  put 
Smith  before  the  world  as  its  general  freight  agent,  clothed  him 
with  the  apparent  power  to  make  all  necessary  contracts  in  the  line 
of  business  committed  to  his  general  control.  A  necessity  of  that 
line  of  business  being  that  shippers  shall  have  furnished  them  at  par- 
ticular stations,  at  certain  dates,  cars  for  the  shipment  of  their 
freight.  Pruitt  v.  Hannibal  &  St.  J.  R.  Co.,  62  Mo.  528.  He  was 
clothed  with  apparent  authority  to  make  the  contract  sued  on ;  and 
when  plaintiff,  having  freight  which  he  desired  to  ship  on  defend- 
ant's road  from  two  of  its  stations  on  the  same  day,  to  a  point  be- 
yond the  terminus  of  defendant's  line  of  road,  needed  cars  for  its 
transportation  at  such  stations  on  that  day  he  had  a  right  to  assume 
that  such  general  freight  agent  had  authority  to  make  the  contract. 
On  a  former  occasion  when  plaintiff  desired  to  ship  this  same  stock 
on  defendant's  road,  on  application  to  Smith  it  was  shipped.  The  evi- 
dence fails  to  show  that  any  other  officer  or  agent  was  held  out  as 
authorized  to  make  the  contract.  Plaintiff  had  no  right  to  assume 
that  either  of  defendant's  station  agents  could  make  a  contract  for 
cars  at  the  station  of  the  other,  or  that  either  or  both  of  them  had 
such  authority  as  would  enable  them  to  have  the  cars  at  both  sta- 
tions at  the  same  time ;  so  that  on  the  face  of  the  transaction  Smith 
not  only  had  apparent  authority  to  make  the  contract,  but  there  was 
no  ground  for  an  assumption  on  the  part  of  plaintiff  that  any  other 
officer  or  agent  of  defendant  had  that  authority.  It  follows  that,  if 
the  defendant  had  imposed  any  limitations  upon  this  apparent  au- 
thority of  its  general  freight  agent,  such  limitations  could  not  affect 
the  plaintiff  unless  brought  to  his  knowledge,  and  this  was  a  ques- 
tion of  fact  to  be  submitted  to  the  jury;  and  the  evidence  in  the 
case  tending  to  show  that  Smith,  the  general  freight  agent,  had  au- 


thority  contraci 

^^'^ct   Wn-.^  '"■"    ■!■ 

.    !  s  for  the 


aad  tiu.  liiclcu  i 


1867.     Suj^REME  Court  of  , 

,ie  plaintiff  brought  this  action  to  ^eco^ 
iii  a  bill  Oi  goous,  sold  by  him  to  the  defendant.    Tb-. 
■    i  \      f  n.i    i'iods  were  not  denied,  and  the  only  qu.. 
•;"  lal  was  whether  the  defendant  had  paid  f''- 

ut  the  time  of  the  tr-- ■  ^'-'-^     ■  ^     mi  inip^i.t...   ■  i 
ig-  business  in  the  c  -.  and  tlie  de- 

.   0  store  of 

i.iv  jew  i'ork,  oi  one  j.  a  uiii  of  ea*' 

^v"  o  the  sum  of  ^'t;  ce  1  wenty  dollar: 

't  appea:  le  evidence  in  the  cause  thai 

>.,  .....V,,  ,  .  '^'^  '■■^'  ■  •'  •■-^  -•■']  goods  f'-"'  '■''"■'    '"'*"''  ■ 

out  any  sal,!  The  ^ 


!ie. 

r.  irc    rr-,  (^ 


ana  to< 
for  11. 

ititf,  an^ 


IIRD  PERSONS. 


special  from  those  of  a 

0  laid  down  by  Suther- 

. .  24  N.  Y.  274,  "that  if 


vvitii  ail  tijc  power  tv  make 

ihe  carrying  and  delivery  of 

re  is  no  question  as  to  the  power 

'Ct  in  this  case,  and  it  was  a  con- 

■  z  for  its  object  the'  shipment  of 

.  '    '       '     :.  on  a  certain  day, 

1?  the  cars  and  the 

•  of  the 

vd.    "A 

try  and 

.,,  1;^  ...^-..a.te  pow- 

•id   incident   to   the   primary    power, 
""'"—■  Ag.,  §  58. 

the  defendant,  having  put 

nt,  clothed  him 

racts  in  the  line 

•i.     A  necessity  of  that 

f  urn*:-hed  them  at  pai'- 

;)ment  of  their 

>.  528.   He  was 

:t  sued  on ;  and 

ro  ship  on  defend- 

day,  to  a  point  be- 

«d,  needed  cars  for  its 

;^  had  a  right  to  assume 

■  make  the  contract. 

;  ihip  this  same  stock 

;  0  Smith  it  was  shipped.  The  evi- 
*^'---  '--    -•  •■'^  -  -■  held  out  as 
to  assume 
could  make  a  contract  for 
either  or  both  of  them  had 
:^  have  the  c  th  sta- 

nce of  the  tr  .  Smith 

the  contract,  but  there  was 
'  f  plaintiif  that  any  other 
rity.     It  follows  that,  if 
''  '  tnt  au- 

affect 
■•  ixa  a  ques- 
.;nce  in  the 
uuiijg  to  show  tliat  i  freight  agent,  had  au- 


CONTRACTS.  221 

thority  to  make  the  contract,  and  that  he  did  enter  into  such  con- 
tract with  plaintiff,  and  the  failure  of  defendant  to  furnish  the 
cars  for  the  shipment  of  plaintiff's  stock,  to  his  damage,  having  been 
satisfactorily  shown,  we  think  the  court  committed  error  in  taking 
the  case  from  the  jury;  for  which  cause  the  judgment  is  reversed, 
and  the  case  remanded  for  new  trial. 


LAW  V.  STOKES. 
1867.     Supreme  Court  of  New  Jersey,    32  N.  J.  L.  249. 

Depue,  J. — The  plaintiff  brought  this  action  to  recover  the  amount 
of  a  bill  of  goods,  sold  by  him  to  the  defendant.  The  sale  and  de- 
livery of  the  goods  were  not  denied,  and  the  only  question  in  con- 
troversy at  the  trial  was  whether  the  defendant  had  paid  for  them. 

The  plaintiff,  at  the  time  of  the  transaction,  was  an  importer  of 
earthenware,  doing  business  in  the  city  of  New  York,  and  the  de- 
fendant the  keeper  of  a  hotel  at  Long  Branch,  in  this  state. 

On  the  fifth  of  July,  1865,  the  defendant  purchased,  at  the  store  of 
the  plaintiff,  in  New  York,  of  one  J.  B.  Sheriden,  a  bill  of  earthen- 
ware amounting  to  the  sum  of  three  hundred  and  twenty  dollars  and 
thirty-seven  cents.  It  appears  from  the  evidence  in  the  cause  that 
Sheriden  was  employed  by  the  plaintiff  to  sell  goods  for  him,  with- 
out any  salary,  for  a  commission  on  his  sales.  The  goods  in  ques- 
tion were  sold  on  a  credit,  and  were  to  be  paid  for  on  the  first  day  of 
the  next  August.  The  goods  were  shipped  to  the  defendant  on  the 
sixth  day  of  July,  1865,  and  on  the  same  day  the  plaintiff"  wrote  the 
defendant  a  letter,  of  which  the  following  is  a  copy : 

"Mr.  \V.  Stokes,  Long  Branch : 

"Dear  Sir — I  beg  to  hand  you  bill  of  ware  purchased  by  you,  and 
duly  forwarded  as  per  direction.  I  trust  you  will  find  all  satisfac- 
tory.   Please  remit  amount  direct  to  me. 

"$320.37.  Yours  truly, 

"Henry  D.  Law. 

"August  I,  1865." 

Enclosed  with  the  letter  was  a  bill  of  the  goods,  in  the  name  of 
Henry  D.  Law,  as  vendor,  in  the  heading  of  which  was  printed 
plainly  and  conspicuously,  in  red  letters,  "all  remittances  on  account, 
or  in  settlement  of  bills,  must  be  made  direct  to  the  principal ;  sales- 
men not  authorized  to  collect."  On  the  sixteenth  of  August,  1865, 
the  defendant  paid  Sheriden  for  the  goods,  at  the  defendant's  hotel, 
at  Long  Branch,  and  took  from  him  a  receipt  for  the  same,  signed, 
"J.  B.  Sheriden,  for  Henry  D.  Law."  Sheriden  never  paid  the 
money  to  the  plaintiff,  and  has  left  the  country. 


222  LIABILITY   TO  THIRD   PERSONS. 

The  fact  of  this  payment  to  Sheriden  is  not  disputed,  but  the 
plaintiff  insists  that  Sheriden  had  no  authorit}-  to  collect  the  money, 
and,  therefore,  the  payment  to  him  is  no  discharge. 

Sheriden  was  a  mere  salesman  for  a  commission.  As  such  he  had 
authority  to  sell  goods  on  credit,  but  not  to  discharge  purchasers 
from  debts  incurred  by  them  in  purchasing  goods  through  him,  of 
the  plaintiff.  An  agent  employed  to  make  sales,  and  selling  on 
credit,  is  not  authorized  subsequently  to  collect  the  price  in  the  name 
of  the  principal,  and  payment  to  him  will  not  discharge  the  pur- 
chaser, unless  he  can  show  some  authority  in  the  agent  other  than 
that  necessarily  implied  in  a  mere  power  to  make  sales.  Seiple  v 
Irwin,  30  Penn.  (6  Casey)  513.  Such  authority  may  be  shown  by 
proof,  either  that  the  agent  was  expressly  authorized  to  receive  and 
discharge  debts,  or  that  he  was  held  out  by  his  principal  to  the  pub- 
lic, or  to  the  defendant,  as  having  such  authority. 

A  principal  is  bound  by  the  acts  of  his  agent  within  the  authority 
he  has  actually  given  him,  which  includes  not  only  the  precise  act 
which  he  expressly  authorizes  him  to  do,  but  also  whatever  usually 
belongs  to  the  doing  of  it,  or  is  necessary  to  its  performance.  Be- 
yond that,  he  is  liable  for  the  acts  of  the  agent  within  the  appear- 
ance of  authority  which  the  principal  himself  knowingly  permits  the 
agent  to  assume,  or  which  he  holds  the  agent  out  to  the  public  as 
possessing.  For  the  acts  of  his  agent,  within  his  express  authority, 
the  principal  is  liable,  because  the  act  of  the  agent  is  the  act  of  the 
principal.  For  the  acts  of  the  agent,  within  the  scope  of  the  author- 
ity he  holds  the  agent  out  as  having  or  knowingly  permits  him  to 
assume,  the  principal  is  made  responsible,  because  to  permit  him  to 
dispute  the  authority  of  the  agent  in  such  cases  would  be  to  enable 
him  to  commit  a  fraud  upon  innocent  persons.  In  w^hichever  way 
the  liability  of  the  principal  is  established,  it  must  flow  from  the 
act  of  the  principal.  And  when  established  it  cannot,  on  the  one 
hand,  be  qualified  by  the  secret  instructions  of  the  principal,  nor, 
on  the  other  hand,  be  enlarged  by  the  unauthorized  representations 
of  the  agent.  These  principles  find  ample  illustrations  in  the  elemen- 
tary books  and  in  decided  cases,  i  Parsons  on  Cont.,  44,  45 ;  2 
Kent  620,  621 ;  Mechanics'  Bank  v.  N.  Y.  &  N.  H.  R.  R.  Co.,  3  Ker- 
nan,  p.  632,  per  Comstock,  J. ;  F.  &  M.  Bank  of  Rens.  Co.  v.  Butch- 
ers' and  Drovers'  Bank,  16  N.  Y.  (2  Smith)  125;  Story  on  Agency, 
§  127;  Dunning  v.  Roberts,  35  Barb.  463;  Thurman  v.  Wells,  18 
Barb.  500;  i  Am.  Leading  Cases  567  (fourth  edition). 

Where  an  agent  is  entrusted  with  the  possession  of  goods,  with  an 
unrestricted  power  to  sell,  (Higgins  v.  Aloore,  6  Bosw.  344),  or  pay- 
ments are  made  over  the  counter  of  the  principal's  store  to  a  shop- 
man accustomed  to  receive  money  there  for  his  employer — Kaye  v. 
Brett,  5  Exch.  269 — the  authority  to  receive  payment  will  be  implied 
in  favor  of  innocent  persons,  because  the  principal,  by  his  own  act, 
gives  to  the  agent  an  apparent  authority  to  receive  such  payment. 


CONTiL.\CTf 


---.S 


it  the  principal  forbids  such  payments,  lyments 

•  made  to  himself  personally,  or  to  a  i_.;v  .  -  cus- 

:   notice  thereof,  the  customer  would  ha^  sist 

I  rather  than  - 
before  the 
The  sale  was  m.!.iic  on  a  err' 
■    not  over  the  plaintiff's  coun'     , 
ess,  but  at  the  defendant's  hotel.    In  most  resf 
i-  ^o  that  of  Seiple  v.  Irwin,  where  the  payment 
ined.    He  had  no  express  authority  to  col: 
oi\  nor  was  there  any  :      '  that  the  pla;v.' 

>  the  public,  or  to  the  c;  as  having  such    - 

the  plaintift'  ex  Is,  that  the  Viioj 

.  d  be  remitted  dn  -  That  letter,  it 

received  by  the  defendant.    The  weight  of  the  evi; 
,  tirr  ^v  i;  -r^nt  and  was  received  before  the  paymen.  .. 
independent  of  that,  the  evidence  on  the 
A's  that  the  bill,  which  was  produced  by  him  ;■• 
before  the  goods  were  unpacked,  and  that  hi?  ^on. 
keeper,  and  had  charge  of  r^ 
ds  on  the  bill,  and  told  the  o. 
orrtct. 

The  defendant  testified  that  he  never  saw  the  bill,  ur.. the 

ayment  was  made  to  Sheriden,  and  the  son  says  that  he  did  not  read 
'    '  '•    ■•    '■  •■     bill — that  he  had  not  time  to  do  it.    The  r^--  --^ 
nee  and  good  faith  required  of  him,  to 
r  in  regard  to  the  rr  ■ 
the    shipment  of  tl' 
•  tiie  dciendant,  ,  him  tc 

!n  it  the  bill  of  th .  ^      _   .  on  the  fa 
printed  a  notice,  that  salesmen  w^ere  not  authorized 
hv.)     •  i.nst^  Yvas  in  the  hands  of  the  defendant"- 
er,  and  authorized  to  pay  bills,  and 
the  bill,  and  who 


mu  wno 

-^y 

len.     X 

■.T'ns 

■rt^r 

e  to 

',  and  open  the 

1,  espe- 

-■<^  bound  to  sc 

c  the  per- 

3S,  as  an  a^ 

the  author- 

'L-  a.— .,  another  v.   luoriiujn,  3  C.  &  P. 

't  a  par  is.     In  that  case  the  defendq^nt 

ai  principal,  wit; 
the  price  of 
ii,  and  the  u' 

was  the  vendor's  tic 


IBD  PERSONS. 

.    fact  of  thk  pr  eriden  is  not  disputed,  but  the 

;.,  :  ^.,  ^j^^j  gj^,  ^^  authority  to  collect  the  money, 

,  the  pay  ^s  no  discharge. 

;  was  a  m  ■;  -  ommission.    As  such  he  had 

to  sell  gr  lot  to  discharg'e  purchasers 

iioiii  (i^u'ts  incurred  goods  through  him,  of 

t'lv   . ':  ririff.     An  :c  sales,  and  selling  on 

■  to  collect  the  price  in  the  name 

liim  will  not  discharge  the  pur- 

•e  authority  in  the  agent  other  than 

IV- .  -  .    ■  ;re  powv"         -jke  sales.     Seiple  v 

i.w-.!;    >>;  T'oTi!  ..     Sucf  '•  may  be  shown  by 

■  I  to  receive  and 
-ipal  to  the  pub- 
;ig  such 

icts  of  li.    .-,      -  within  the  authority 

•ch  includes  not  only  the  precise  act 

urn  to  do,  but  also  whatever  usually 

r.  necessary  to  its  performance,     Be- 

acts  of  r  r  within  the  appear- 

iicipal  hi  wingly  permits  the 

ne  holds  the  aj^^nt  out  to  the  public  as 

his  agent,  within  his  express  authority, 

he  act  of  the  agent  is  tlie  act  of  the 

.gent,  within  the  scope  of  the  author- 

iiaving  or  knowingly  permits  him  to 

responsible,  because  to  permit  him  to 

ent  in  such  cases  would  be  to  enable 

hiiii  .  unocent  persons.     In  whichever  way 

the  li       .  -  ''stah]i«'hcd,  it  must  flow  from  the 

act  of  th  1  it  cannot,  on  the  one 

h7n\^    T.f  .„ ii  of  the  principal,  nor, 

the  unauthorized  representations 
;  ample  illustrations  in  the  elemen- 
I  Parsons  on  Cont.,  44,  45 ;  2 
^     "   '^  ^     TI.  R.  R.  Co.,  3  Ker- 
,  j^ens.  "Co.  V.  Butch- 
■  125;  Story  on  Agency, 
^,  ^,    Thurman  v.  Wells,  18 

,300;  I  Am.  fourth  edition). 

•-^  •'.n  .agent  possession  of  goods,  with  2.^, 

d  power  Loore,  6  Bosw.  344),  or  pay- 

principal's  store  to  a  shop 
:  for  his  employer— Kay e     . 
DroLt,  5  Exch.  :^v.>9 — ll  payment  will  be  implied 

:n  fn^-o^  r,f  -nnoccnt  r  •  inrion,].  by  his  own  act, 

such  paymc 


CONTRACTS.  223 

But  if  the  principal  forbids  such  payments,  and  requires  all  payments 
to  be  made  to  himself  personally,  or  to  a  cashier,  and  gives  a  cus- 
tomer notice  thereof,  the  customer  would  have  no  right  to  insist 
upon  the  apparent  rather  than  the  real  authority  of  the  agent. 

In  the  case  now  before  the  court,  Sheriden  had  not  the  possession 
of  the  goods.  The  sale  was  made  on  a  credit,  and  the  payment  was 
made  to  him,  not  over  the  plaintiff's  counter,  at  his  place  of  busi- 
ness, but  at  the  defendant's  hotel.  In  most  respects,  the  case  is  simi- 
lar to  that  of  Seiple  v.  Irwin,  where  the  payment  to  the  agent  was  not 
sustained.  He  had  no  express  authority  to  collect  the  debt  in  ques- 
tion, nor  was  there  any  evidence  that  the  plaintiff  held  him  out 
to  the  public,  or  to  the  defendant,  as  having  such  authority.  The 
letter  of  the  plaintiff  expressly  directs,  that  the  mone}-  for  this 
bill  should  be  remitted  directly  to  him.  That  letter,  it  is  said,  was 
never  received  by  the  defendant.  The  weight  of  the  evidence  is  that 
that  letter  was  sent  and  was  received  before  the  payment  was  made 
to  Sheriden.  But  independent  of  that,  the  evidence  on  the  part  of 
the  defendant  shows  that  the  bill,  which  was  produced  by  him  at  the 
trial,  was  received  before  the  goods  were  unpacked,  and  that  his  son, 
who  was  his  book-keeper,  and  had  charge  of  receiving  those  goods, 
ticked  off  the  goods  on  the  bill,  and  told  the  defendant  that  it  was 
correct. 

The  defendant  testified  that  he  never  saw  the  bill,  until  after  the 
payment  was  made  to  Sheriden,  and  the  son  says  that  he  did  not  read 
the  heading  of  the  bill — that  he  had  not  time  to  do  it.  The  plaintiff 
did  all  that  prudence  and  good  faith  required  of  him,  to  prevent 
the  defendant  falling  into  an  error  in  regard  to  the  authority  of 
his  salesman.  Immediately  upon  the  shipment  of  the  goods,  he 
wrote  the  letter  to  the  defendant,  requiring  him  to  remit  direct  to 
him,  and  enclosed  in  it  the  bill  of  the  goods,  on  the  face  of  which  was 
printed  a  notice,  that  salesmen  were  not  authorized  to  collect.  That 
bill,  at  least,  was  in  the  hands  of  the  defendant's  son,  who  was  his 
book-keeper,  and  authorized  to  pay  bills,  and  had  charge  of  com- 
paring the  goods  with  the  bill,  and  who  was  present  when  the  money 
was  subsequently  paid  to  Sheriden.  Not  to  have  seen  the  directions 
in  the  bill-head  was  the  grossest  negligence,  and  to  permit  a  party 
to  defend  under  the  protection  of  his  own  carelessness,  would  be  to 
offer  a  premium  for  negligence,  and  open  the  door  to  fraud,  espe- 
cially so  when  the  party  is  himself  bound  to  see  to  it,  that  the  per- 
son with  whom  he  transacts  business,  as  an  agent,  has  the  author- 
ity which  he  assumes.  Capel  and  another  v.  Thornton,  3  C.  &  P. 
352,  is  not  a  parallel  case  with  this.  In  that  case  the  defendant 
dealt_  with  Ellsworth,  the  agent,  as  principal,  without  any  knowledge 
of  his  agency.  The  coal,  for  the  price  of  which  the  suit  was 
brought,  was  ordered  of  Ellsworth,  and  the  defendant  paid  Ells- 
worth. The  only  evidence  of  notice  of  his  agency,  before  the  bill 
was  paid,  was  the  vendor's  ticket,  sent  with  the  coal,  and  delivered 


224  LIABILITY   TO   THIRD   PERSONS. 

to  the  defendant's  footman,  and  not  shown  to  have  reached  the  de- 
fendant. After  the  payment  was  made,  a  notice  was  sent  to  the 
defendant,  by  the  plaintiffs,  to  pay  the  amount  to  them,  or  to  their 
clerk  and  not  to  Ellsworth.  The  defendant  had  no  knowledge  of  the 
agency,  and  the  footman  w-as  not  her  agent  in  relation  to  that 
business,  and  the  notice  which  the  defendant  did  receive  came  after 
the  payment  was  made.  These  circumstances  render  that  case 
wholly  unlike  the  case  now  before  the  court. 

It  was  further  insisted,  on  the  argument,  that  there  was  evidence 
of  a  subsequent  ratification,  sufficient  to  go  to  the  jury.  It  does  not 
appear  that  any  such  question  was  raised  at  the  trial,  and  if  it  had 
been,  there  is  no  evidence  in  the  cause  that  would  have  justified 
the  jury  in  finding  a  ratification  by  the  plaintiff  of  the  unauthorized 
payment  to  Sheriden. 

The  verdict  is  against  the  evidence,  and  contrary  to  law,  and 
should  be  set  aside  and  a  new  trial  granted ;  costs  to  abide  the 
event. 


DAYLIGHT  BURNER  CO.  v.  ODLIN. 

1871.     Supreme  Judicial  Court  of  New  Hampshire. 
51  N.  H.  56. 

Assumpsit,  by  the  Daylight  Burner  Company  against  James  W. 
Odlin,  an  expressman,  for  delivering  goods  marked  "C.  O.  D." 
without  receiving  the  price.  The  plaintiff  is  a  corporation,  doing 
business  in  the  city  of  New  York.  The  defendant  is  an  express- 
man, between  Boston  and  Exeter.  The  plaintiff'  sent  from  New 
York,  by  Adams's  express,  a  package  of  goods  directed  to  one 
Berry,  Exeter,  N.  H.,  and  a  bill  of  the  same,  for  $55.80,  from  the 
plaintiff*  to  Berry,  marked  "C.  O.  D.,"  which,  by  the  usage  of 
express  business,  means  "cash  on  delivery,"  and  imports  an  order 
that  the  goods  are  not  to  be  delivered  to  the  consignee  unless  he 
pays  the  amount  of  the  bill,  which  the  expressman  is  to  return  to 
the  consignor ;  and  such  was  the  understanding  of  the  plaintiff  and 
the  defendant.  The  defendant  carried  the  goods  and  bill  from  Bos- 
ton to  Exeter,  and  Berry  refused  to  pay  the  price,  alleging  that,  by 
the  terms  of  the  bargain  under  which  he  was  to  receive  them,  he 
was  not  to  pay  for  them  cash  on  delivery.  The  bargain  with  Berry 
was  made  by  one  Moore.  Upon  the  refusal  of  the  defendant  to  de- 
liver the  goods  to  Berry  without  payment  of  the  bill,  a  correspond- 
ence ensued  between  Berry  and  Aloore ;  and  Berry  received  from 
Moore,  and  gave  to  the  defendant,  a  written  order  from  Moore  to 
the  defendant,  directing-  the  defendant  to  deliver  the  goods  to  Berry 
"without  C.  O.  D.,"  and  the  defendant  delivered  them  accordingly 
without  payment. 


the  sec- 
u'cr,  u-iivl  gr  1  one  of 

cctors  of  the  ^  cIp,  find 

rs  for  some  of  the  plaintitt  s 
,.,  ■ , \.  .i  jm  the  plaintiff  ten  per  cent,  oi  -. 
plaintiff's  goo- Is;  that  he  made  several  sa 
no  interest  in  the  corporation  or  its  good:^ ,  t 
itv  to  sell  the  plaintiff's  goods  on  anv  other  f^ 
!'     ry ;  that  he  had  no  authority  ' 
a!  i  that  the  order  was  given  an. 
of  the  plnintif'^. 

The  defendants  evidence  .tend. -^^.I  t, ,  =;how  that,  ; 
made  by  Moore  with  Berry,  Bc:  lOt  to  pay  • 

■cash  on  delivery.  . 

The  court  instructed  the  jury  that  there  was  evidence 
to  cn-i'Icr  '  .''"'-'  was  an  age' 

rlni':*  :'■      ■  ds;  that  if  ti. . 

;  between  uic  plctiutilf  and  Moore,  that  Moorv 
....      ..     ...1   the  plaintiff's  goods   for  cash  on  delivery,, 

t!'  it  he  was  to  receive  from  the  plaintiff"  ten  per  cent,  of  the  amount 
n;M  by  him,  as  payment  for  his  services,  he  was  an  agent  of  the 
plaintiff,  and  authorized  to  sell  the  plaintiff's  goods  for  cash  on 
d'^li'.v-ry-  •  ;id  that,  as  between  him  and  the  plaintiff,  the  1 
thi*^    "  Id  sell  only  fo^  rash  rin  deliverv  vas  binding 

SU'.' 
pe!:.     • 

of  the!:  if  he  knew  nothi'  ore's  author;  ■ 

he  ■     -  '  "o  sell,  an'  '  v^cndant,  i"  ''■ 

1;\  out  pa\-  ids  sold  by  2 

loore  orcicrta  me  defendant 
-!nt  is  not  liable;  that  the  d<^ 
if  he  w:- 
lave  asct;. 
r  he  was  put  upon  inquiry,  tiie 

as  marked  "C.  O.  D."  was  .    the 

"-.  ^  these  instructions  the  plaini 

"'  "    *'"  •  refusal  of  the  r-  me  fol- 

rdi...    was  not  sufficient  autl  UJun  to  de- 

that   Moore   v. 

-       '^    the  contract  of  tn    , 

had  the  right  to  sell  the  goods,  1 
-  the  contract  with  Odlin.  '" 
.vment. 


224 

':'■■    '  •.   'Ici'  .lijiii  have  reached  the  de- 

^Viler  !  c    notice  was  sent  to  the 

-.  by  th'  onnt  to  them,  or  to  theif 

no  knowledge  ci 
,         in   relation   to 
defendant  did  receive  came  after 
circumstances   render  that  cast 
the  court. 

•■••-.     '    ''it  there  was  evidence 
.-;  .  .he  jury.    It  does  not 

-i;/;.c.,ii     I  ivas  raised  a;  Uie  trial,  and  if  it  ' 

t>:^t.'i).  t'  .  the  cause  thr-^  vould  have  justii 

the  J '  )n  by  the  pi.'  ihc  unauthorized 

evidence,  and  contrary  to  law,  and 


)DLIN. 
ouRT  OF  New  Hampshire. 


r      -    •.:    V.  .1.  marked  "C.  O.   D." 
i  is  a  corporation,  d'  ' 
i:      defendant  is  an  expi - 
.  xeter.     The  plaintiff  sent  from  New 
nark?"^^     <n*    -nods  directed  to  one 
for  $55.80,  from  the 
'3.   JL^.;      \\;Hch,  by   the  usage  oi 
:i  delivery,"  and  imports  an  order 
'vered  to    '  '  "        '^ 

i'  the  e- 

lIjc  plaintiii 
:d  bill  from  i 
alleging  that, 
■  lic   i._i-.  (J  receive  thcr.i. 
^■ry.    The  bargain  with  V> 
.1  of  the  defenda;  ' 
,    of  the  bill,  a  cor 
re;  and  Berry  received  x. 
■ .  ritten  order  from  Moor 
ihe  uerendaiu.  direciing  :  r  the  goods  to  B 

"without    C.    O.    Tj    ■■    ai  ,'  ,1    ihr-yy-i    ■Arrr,r,V 

without  payment 


CONTRACTS.  225 

The  plaintiff's  evidence  tended  to  show  that  Moore  traveled  to  sell 
his  own  goods,  and  that  he  said  to  one  Ludlow,  who  was  the  sec- 
retary, treasurer,  and  general  business  agent,  manager  and  one  of 
the  tiiree  directors  of  the  plaintiff,  that  he  might,  in  his  travels,  find 
customers  for  some  of  the  plaintiff's  goods ;  that  Moore  was  to  re- 
ceive from  the  plaintiff  ten  per  cent,  of  the  amount  of  his  sales  of  the 
plaintiff's  goods ;  that  he  made  several  sales  for  them ;  that  he  had 
no  interest  in  the  corporation  or  its  goods ;  that  he  had  no  author- 
ity to  sell  the  plaintiff's  goods  on  any  other  terms  than  cash  on  de- 
livery ;  that  he  had  no  authority  to  give  said  written  order  to  Odlin, 
and  that  the  order  was  given  and  executed  without  the  knowledge 
of  the  plaintiff. 

The  defendant's  evidence  tended  to  show  that,  by  the  bargain 
made  by  Moore  with  Berry,  Berry  was  not  to  pay  for  the  goods 
■cash  on  delivery. 

The  court  instructed  the  jury  that  there  was  evidence  for  them 
to  consider  upon  the  question  whether  Moore  was  an  agent  of  the 
plaintiff,  authorized  to  sell  the  plaintiff's  goods ;  that  if  there  was 
an  understanding  between  the  plaintiff  and  Moore,  that  Moore  had 
authority  to  sell  the  plaintiff's  goods  for  cash  on  delivery,  and 
that  he  was  to  receive  from  the  plaintiff  ten  per  cent,  of  the  amount 
sold  by  him,  as  payment  for  his  services,  he  was  an  agent  of  the 
plaintiff,  and  authorized  to  sell  the  plaintiff's  goods  for  cash  on 
delivery ;  and  that,  as  between  him  and  the  plaintiff,  the  limitation 
that  he  should  sell  only  for  cash  on  delivery  was  binding;  but  that 
such  limitation  of  his  authority  would  not  necessarily  conclude  other 
persons  who  had  no  notice  of  it ;  that  if  the  defendant  had  no  notice 
of  the  limitation,  if  he  knew  nothing  of  Moore's  authority  except  that 
he  was  authorized  to  sell,  and  if  the  defendant,  in  good  faith,  de- 
livered to  Berry  without  payment  goods  sold  by  Moore  as  agent  of 
the  plaintiff,  which  Moore  ordered  the  defendant  to  deliver  without 
payment,  the  defendant  is  not  liable ;  that  the  defendant  is  held  to 
have  had  notice  of  the  limitation  if  he  was  put  upon  inquiry,  and  if 
by  reasonable  inquiry  he  would  have  ascertained  it ;  and  that,  upon 
the  question  whether  he  was  put  upon  inquiry,  the  fact  that  the 
bill  of  the  goods  was  marked  "C.  O.  D."  was  evidence  for  the 
jury  to  consider.    To  these  instructions  the  plaintiff  excepted. 

The  plaintiff  excepted  to  the  refusal  of  the  court  to  give  the  fol- 
lowing instructions : 

1.  Moore's  order  was  not  sufficient  authority  to  Odlin  to  de- 
liver the  goods. 

2.  There  is  no  evidence  that  Moore  was  the  agent  of  the 
plaintiff  authorized  to  change  the  contract  of  the  plaintiff  with  Odlin. 

3.  If  Moore  had  the  right  to  sell  the  goods,  he  would  not  have 
the  right  to  change  the  contract  with  Odlin,  and  order  the  goods 
•delivered  without  payment. 

15 — Reixhard  Cases. 


226  LIABILITY   TO  THIRD   PERSONS. 

4.  The  bill  marked  "C.  O.  D."  was  notice  to  the  defendant  of 
Moore's  limited  authority. 

5.  If  the  bill  was  not  notice,  it  was  sufficient  to  put  the  defend- 
ant on  inquiry. 

Verdict  for  the  defendant,  and  the  plaintiff  moved  to  set  it  aside. 

Bellows,  C.  J. — From  the  uncontradicted  testimony  of  the 
plaintiff  and  the  finding  of  the  jury,  it  may  be  assumed  that  Moore 
was  clothed  by  the  plaintiff  with  an  apparent  authority,  like  that  of  a 
factor,  to  sell  all  the  goods  of  the  plaintiff  he  could  sell  within  his 
business  circuit,  on  a  commission  of  ten  per  cent. 

As  incident  to  that  general  authority,  he  had  power  to  fix  the 
terms  of  sale,  including  the  time,  place,  and  mode  of  delivery,  and 
the  price  of  the  goods,  and  the  time  and  mode  of  payment,  and  to 
receive  payment  of  the  price,  subject  of  course  to  be  controlled  by 
proof  of  the  mercantile  usage  in  such  trade  or  business. 

There  is  some  conflict  in  the  adjudged  cases  upon  the  question  of 
the  authority  of  a  factor  to  sell  on  credit,  but  we  think  the  weight 
of  modern  authority  is  in  favor  of  the  position  that  he  may  sell 
on  credit,  unless  a  contrary  usage  is  shown.  Goodenow  v.  Tyler,  7 
Mass  36;  Hapgood  v.  Batcheller,  4  Met.  576;  Greely  v.  Bartlett,  i 
Greenl.  178;  Van  Alen  v.  Vanderpool,  6  John.  70;  Robertson  v. 
Livingston,  5  Cow.  473 ;  Leland  v.  Douglass,  i  Wend.  490 ; — and 
see  I  Am.  Lead.  Cases  (4th  ed.)  662,  note,  where  it  is  said  that  it 
is  universally  established  as  the  law-merchant  that  a  factor  may 
sell  on  credit.  So  in  Laussatt  v.  Lippincott,  6  S.  &  R.  386,  and  May 
V.  Mitchell,  5  Humph.  365,  and  Story  on  Agency,  §  209. 

The  same  views  are  recognized  in  Scott  v.  Surman,  Willes  406 ; 
Russell  V.  Hankey,  6  T.  R.  12;  Haughton  v.  Mathews,  3  B.  &  P.  489, 
per  Chambre,  J, ;  3  Selw.  N.  P.  719. 

In  the  case  before  us,  Moore  stands  much  on  the  same  footing 
as  a  factor.  The  most  marked  distinction  is,  that  he  is  a  traveling 
merchant,  and  did  not  apparently  have  his  principal's  goods  with 
him ;  but  this,  we  think,  cannot  affect  the  rule. 

The  reason  of  that  rule  in  the  case  of  factors  is,  that  it  is  found, 
by  experience  and  repeated  proofs  in  courts  of  justice,  that  it  is  ordi- 
narily the  usage  of  factors  to  sell  on  credit ;  and  the  same  reason 
will  apply  in  this  case. 

We  have  a  case,  then,  where  the  agent  was  apparently  clothed 
with  the  authority  to  sell  the  plaintiff's  goods,  without  limitation 
as  to  the  quantity,  and  on  commission,  for  cash  or  on  credit  as  he 
might  think  proper ;  and  this  being  so,  Moore  must  be  regarded,  in 
respect  to  third  persons,  as  the  plaintiff's  general  agent,  whose  au- 
thority would  not  be  limited  by  instructions  not  brought  to  the 
notice  of  such  third  persons.  Backman  v.  Charlestown,  42  N.  H. 
125,  and  cases  cited. 

As  Moore,  then,  in  respect  to  third  persons,  had  the  power  to 
sell  on  credit,  the  authority  to  control  the  delivery  of  the  goods  so 


:ox' 


22: 


-.     !  and  sent  to  his  order,  for  the  purp* 

, — act  of  sale,  wonl  '  • •' 

v :  and  we  thir 
of  the  g 
ifit  of  ^ 
was  real  autho- 

,.  ,-irkin.->-   of  the   pc._ 

to  the  e.  t  cash  was 

notice  ol  -u>_4i  vvant  of  aut' 
to  put  the  defendant  upon  i 
■   '  '.e  jury. 

The  n 


conform 


nother  asc'r 
on  deli, 
•hough  11 
That,  howe 
t  not  to  be 
-  in  that  w;s 
•lorit}'  t' 
,  so  ma 

be  considered  ic 
the  delivery  ^^" 


•  for  cash.  And  it  m 
■t  of  Moore's  agency 
of  sale. 

'-  nt,  therefore,  is  i\)\\\v.\  to  have  had  iio  nuuc'.- 
•  in  Moore,  and  was  not  put  upon  inquiry,  V\. 

lent  on  the  verdict. 


IHURBER  &  CO.  V.  ANDERSON. 

iK;S     Supreme  Court  of  Illinois.    88  111,  167. 

e  controver?v  in  this  case  i'^ 
a  bill  of  cig"  :ted  ale 

^-  on  an  or  .     :i  his  nat; 

The  SO!  \  the  goods 

the  knov.  1.  i^t  of  appelle-^ 
t  his  son  had  any  author 
r  had  3 
;s  ;  but  it 
ny    leasou   to  suspect  that   the 

.1  December  4,  1875, 
.  and  prior  and  snl 
rocery,  and  that,  du 

rders  to  rur 

ted,  in  bi5  i 


cfc   not 


notice  to  Uie  defendant  of 


it  the  bill  w 
''I'fuiry. 
for  the 


terms  of 

the  p'^"" 


in 


him ;  out 


notice  of  such  third  p 
125,  and  cases  cited. 

As  Moore,  then,  in 
fell  on  credit,  the  autl. 


>ut  the  defend- 

e  plaintiff  moved  to  set  it  aside. 

'  tradicted    testimony    of   the 

!;iav  be  assumed  that  Moore 

■V,  like  that  of  a 

sell  within  his 

»ii  01  ten  per  cent. 

rthority,  he  had  power  to  fix  the 

^lace,  and  mode  of  delivery,  and 

luiie  and  niotie  of  payment,  and  to 

abject  of  course  to  be  controlled  by 

Iness. 

.  the  question  of 

■  '•  un  cieJii,  l>ui.  wc  think  the  weight 

ir  of  the  position  that  he  may  sell 

t^e  is  shown.    Goodenow  v.  Tyler,  7 

;  r,  4  Met.  576;  Greely  v.  Bartlett,  i 

"(derpool,  6  John.  70;  Robertson  v. 

d  V.  Douglass.  I  Wend.  49(3; — and 

;  )  662.  note,  where  it  is  said  that- it 

'     !  a   factor  may 

.    j.  _  • .  386,  and  May 

;  Story  on  Agency,  §  209. 

:;'ed  in  Scott  v.  Surman,  Willes  406; 

ilaughton  v.  Mathews,  3  B.  &  P.  489, 

719. 
(•  stands  much  on  the  same  footing 
'on  is,  that  he  is  a  traveling 
J  his  principal's  goods  with 
a  tlie  rule. 

ise  of  factors  is,  that  it  is  found, 

'.  courts  of  justice,  that  it  is  ordi- 

,,•  .-.-...iif-  -,-■;  ti.^  '-'ame  reas6i> 

!j);'arently  clothea 

.  without  limitation 

ash  or  on  credit  as  he 

re  must  be  regarded,  in 

1  s  general  agent,  whose  au- 

(fions  not  brought  to  the 

Charlestown,  42  N.  H. 

oersons,  had  the  power  ' 
ilelivery  of  the  goods  . 


CONTRACTS.  22/ 

sold  and  sent  to  his  order,  for  the  purpose  of  making  it  conform 
to  the  contract  of  sale,  would  necessarily  come  within  the  scope 
of  his  agency;  and  we  think  his  order  to  the  defendant  would 
justify  a  delivery  of  the  goods  without  payment,  unless  he  had  notice 
of  the  agent's  want  of  authority.  As  to  him  the  agent's  apparent 
authority  was  real  authority. 

The  marking  of  the  package  by  another  agent  of  the  plaintiff, 
to  the  effect  that  cash  was  required  on  delivery,  was  not  in  law 
notice  of  such  want  of  authority,  although  it  might  be  sufficient 
to  put  the  defendant  upon  inquiry.  That,  however,  was  properly 
left  to  the  jury,  and  they  have  found  it  not  to  be  sufficient  for  that 
purpose.  The  marking  of  the  package  in  that  way  does  not  neces- 
sarily imply  that  the  agent  had  no  authority  to  sell  on  credit,  but  it 
might  indicate  merely  that  the  person  so  marking  it  supposed  the 
sale  to  be  for  cash.  And  it  might  well  be  considered  to  come  within 
the  scope  of  Moore's  agency  to  make  the  delivery  conform  to  the 
contract  of  sale. 

As  the  defendant,  therefore,  is  found  to  have  had  no  notice  of  any 
want  of  authority  in  Moore,  and  was  not  put  upon  inquiry,  there 
must  be 

Judgment  on  the  verdict. 


THURBER  &  CO.  v.  ANDERSON. 
1878.     Supreme  Court  of  Illinois.     88  111.  167. 

ScHOLFiELD,  C.  J. — The  controversy  in  this  case  is,  whether  ap- 
pellee is  liable  for  a  bill  of  cigars  and  imported  ale  shipped  by  appel- 
lants to  his  address,  on  an  order  drawn  in  his  name  by  his  son,  on 
them,  to  that  effect.  The  son  received  the  goods  and  made  use  of 
them  himself,  without  the  knowledge  of  appellee. 

Appellee  denies  that  his  son  had  any  authority  to  purchase  goods 
for  him,  and  also  denies  that  he  ever  had  any  knowledge  of  his 
having  ordered  or  received  these  goods ;  but  it  does  not  appear  that 
appellants  had  any  reason  to  suspect  that  the  goods  were  not 
ordered  by  him. 

The  goods  were  ordered  December  4,  1875,  and  several  witnesses 
testify,  that  at  that  time,  and  prior  and  subsequent  thereto,  ap- 
pellee's son  was  in  his  grocery,  and  that,  during  the  time  he  was 
there,  he  sold  goods,  gave  orders  to  runners  for  goods,  received 
money  for  goods  sold,  receipted,  in  his  father's  name,  for  express 
packages,  ordered  goods  from  other  houses  in  his  father's  name, 
ajid  corresponded  with  reference  thereto ;  and,  also,  that  during  that 
time,  he  did  not  profess  to  be  doing  business  for  himself.  And  of  all 
this,  the  reasonable  presumption,  from  the  evidence,  is,  appellee  had 
full  knowledge. 


228  LIABILITY   TO   THIRD   PERSONS. 

We  do  not  think  it  necessary  to  inquire  precisely  what  authority 
appellee,  in  fact,  conferred  upon  his  son  in  regard  to  his  business,  be- 
cause, in  our  opinion,  the  decided  preponderance  of  the  evidence  is, 
that  he  was  suffered  to  act  as  a  general  agent  both  in  buying  and 
selling,  and  the  public  were,  therefore,  justified  in  assuming  that  he 
possessed  all  the  powers  requisite  to  a  general  agent  in  buying  and 
selling.  It  is  true,  as  contended  by  counsel  for  appellee,  that  an 
authority  to  buy  can  not  be  inferred  simply  from  an  authority  to 
sell ;  yet  where  a  clerk  or  shopman  has  been  accustomed  to  buy 
as  well  as  to  sell,  the  presumption  of  full  authority  is  equally  ap- 
plicable to  both.  Story  on  Agency,  §  89.  By  permitting  another  to 
hold  himself  out  to  the  world  as  his  agent,  the  principal  adopts  his 
acts,  and  will  be  held  bound  to  the  person  who'  gives  credit  thereafter 
to  the  other,  in  the  capacity  of  his  agent.    2  Kent's  Com.  (8th  ed.) 

799-  . 

It  is  suggested,  however,  that  the  goods  here  ordered  were  not 
such  as  were  suited  to  the  business  in  which  appellee  was  engaged, 
and  that,  in  no  view,  could  the  son  bind  apellee  by  contracts  for 
goods  not  in  the  line  of  his  trade. 

The  evidence  fails  to  show  that  the  goods  ordered  were  not  such 
as  are  within  the  line  of  business  in  which  appellee  was  engaged. 
His  evidence  was :  "Am  in  grocery ;  general  stock ;  keep  tobacco, 
etc."  Another  witness,  Benjamin  Kinkly,  speaks  of  his  having  a 
"grocery  and  saloon." 

No  witness  says  that  imported  ale  and  cigars,  such  as  were 
ordered,  are  articles  not  adapted  to  such  business,  and  we  are  not 
warranted  in  so  presuming  in  the  absence  of  evidence. 

We  are  of  opinion  that,  under  the  evidence  before  us,  the  judg- 
ment does  injustice  to  appellants,  and  that  it  should,  therefore,  be 
reversed.    The  judgment  is  reversed  and  the  cause  remanded. 

Judginent  reversed.^ 

^  Compare  Hirshfidd  v.  Waldron,  54  Mich.  649. 

"A  principal  is  responsible  for  the  acts  of  one  who  is  his  agent,  or  appears 
to  be,  if  responsibility  is  asserted  on  the  ground  of  apparent  authority  in  the 
agent  to  do  the  acts,  only  in  case  the  principal  has  clothed  the  agent  with  the 
appearance  of  power,  and  not  when  the  agent's  own  conduct  creates  the  ap- 
pearance."   Goode,  J.,  in  Taylor  v.  Sartorious,  130  Mo.  App.  23,  34. 

"In  determining  the  extent  of  an  agent's  authority,  it  is  more  important  to 
look  to  the  nature  of  the  duties  he  is  accustomed  to  perform  than  to  the 
name  by  which  he  is  called.  If  these  duties  are  those  of  a  manager  or  an  assist- 
ant manager,  it  is  immaterial  that  he  is  referred  to  by  his  principal  as  a  book- 
keeper. By  a  course  of  dealing  Huggins  had  been  held  out  as  having  author- 
ity to  deliver  and  to  refuse  to  deliver  meal  and  to  receive  payment  therefor; 
he  was  thereby  clothed  with  apparent  authority  to  that  extent."  Powell,  J., 
in  Fitzgerald  Cotton  Oil  Co.  v.  Farmers'  Supply  Co.,  3  Ga.  App.  212,  214. 

See  particularly  Lightbody  v.  North  American  Insurance  Co.,  23  Wend.  (N. 
Y.)   18. 


CONTIL\C  \  229 

DICKERING  V.  BUSK  and  another. 

1812.    Court  of  King's  Bench.     15  East  38. 

Trover  for  hemp.  At  the  trial  before  Lxird  Ellenl) 
at  tlie  sittings  after  Trinity  term  in  London,  it  apper.- 
low,  a  brol<er  in  London,  en,s:aged  in  the  hemp  trade,  .        ,  cd 

for  the  plaintiff,  a  merchant  at  Hull,  a  parcel  of  hemp  then  lying 
at  Symonds'  wharf  in  Southwark.  The  hemp  v/as  delivered  to 
Swallow,  at  the  desire  of  the  plaintiff,  by  a  transfer  in  the  books 
of  the  wharfmg-er  from  the  name  of  the  seller  t'  '  '  '  Swallow. 
Shortly   afterwards   Swallow  purchased   for   th(  anotlier 

parcel  of  hemp,  lying  at  Brown's  quay,  Wapping,  el 

was  transferred  into  the  names  of  Pickering  (the  \  ;- 

low.  Both  these  parcels  of  hemp  were  duly  paid  for  by  me  piamtiff. 
Swallow,  however,  whilst  the  hemp  remained  thus  in  his  "  ■'  ■  '•-'^- 
ing  contracted  with  Hay  ward  and  Co.  as  the  broker  of 
and  Co.  for  the  sale  of  hemp,  and  having  none  of  his  owu  ■  -le- 
liver,  transferred  into  the  names  of  Hayward  and  Co.  the  above 
parcels  in  satisfaction  of  that  contract,  for  which  they  paid  him  the 
value.  Hayward  and  Co.  shortly  after  became  bankrupts;  and  the 
plaintiff,  discovering  these  circumstances,  demanded  the  hemp  of  the 
defendants  their  assignees,  and  upon  their  refusal  to  deliver  it 
the  present  action  was  brought.  His  Lordship  was  of  opinion  upon 
this  evidence,  that  the  transfer  of  the  hemp,  by  direction  of  the 
plaintiff,  into  Swallow's  name,  authorized  him  to  deal  with  it  as 
o^\rA:i,  with  respect  to  third  persons;  and  that  the  '"  '    who 

liad  iluis  enabled  him  to  assume  the  appearance  o:'  'p  to 

the  world,  must  abide  the  consequence  of  his  own  ■■■  t 

was  thereupon  found  for  the  (!•.  fi'iblants,  with  liber' 
tc  move  to  set  it  aside. 

Lord  Ellenborough,  v-  j. —  n.  idunot  fairly  be  .   .  ^  ;  ...u  ,,.  ,     . 

case  but  that  Swallow  had  an  implied  authority  to  sell.     Strangers 

can  only  look  to  the  acts  of  the  parties,  and  ,to  the  external  indicia 

of  property,   and   not  to  the  private   communications  which   may 

tween  a  principal  and  his  broker:  and  if  a  person  authorize 

.  to  assume  the  apparent  right  of  disposing  of  property  in  the 

.-:    M.  )!-y  course  of  trade,  it  must  be  presumed  that  the  apparent  au- 

thofivy  is  the  real  authority.     I  cannot  subscribe  to  tlie  doctrine, 

that  a  broker's  engagements  are  necessarily  and  in  all  cases  limited 

actual  authority,   the  reality  of  which  is  aftr-         '     '      ^? 

the  fact.     It  is  clear  that  he  may  bind  his  p-  ^  a 

ilu  limits  of  tlie  authority  with  which  he  has  been  n  J 

1''    the  principal  in  respect  of  the  subject-matter  i 

1.0   ,1  safety  in  mercantile  transactions  if  he  could 

pal  S'.nd  his  commodity  to  a  plac-    ■••'i  v,-  W-  U.  i':-    ,. 

of  the  person  to  whom  it  is  conf:  -t  be  int 


[RD  VEJli 


We  do  not  thinl 


.5  sufler- 

'  the  r.L :' 

1' 

autliority  to  h'-: 
sell ;  yet  v  ■* 
a?  well  a~ 

V 

h 

acts,  and  >' 

to  the  <^i'- 

799- 
It  ; 


nauire  precisely  what  authority 

■  I  to  his  business,  be- 

.:  of  the  evidence  is, 

1  agent  both  in  buying  and 

justified  in  assuming  that  he 

■  a  general  agent  in  buying  and 

/  counsel  for  appellee,  that  an 

vd  simply  from  an  authority  to 

n  has  been  accustomed  to  buy 

■   of  full  authority  is  equally  ap- 

,v:y,  §  89.    By  permitting  another  to 

i.-i  his  agent,  the  principal  adopts  his 

ne  person  who  gives  credit  thereafter 

his  agent.    2  Kent's  Com.  (8th  ed.) 

it  the  goods  here  ordered  were  not 
iiess  in  which  appellee  was  engaged, 
r.e.  son  bind  apeliee  by  contracts  for 
le. 

:iat  the  goods  ordered  were  not  such 
:  ess  in  which  appellee  was  engaged, 
vocery;  general  stock;  keep  tobacco, 
njin    uTirni-Kr    c;peaks  of  his  having  a 


i\G     ■WJ 

ordered.  • 


ment  doc 

reversed. 

Judgm 

*  Compare  H) 

A     r,:,nr-;T,-,i 


r  and  t',' 

rebv  clot 

.1(1  Cottov 

iciilarlvi; 


iteci  rik  ri]i(i  cigars,  such  as  w^ere 
ed  to  such  business,  and  we  are  not 
■he  absence  of  evidence. 
ier  the  evidence  before  us,  the  judg- 
its,  and  that  it  should,  therefore,  be 
.,rv,-il  'Ani'i  the  cause  remanded. 


54  Mich.  649. 

-n  ts  of  one  who  is  his  agent,  or  appears 
ground  of  apparent  authority  in  the 
hicipal  has  clothed  the  agent  with  the 
agent's  own  conduct  creates  the  ap- 
;ious,  130  Mo.  App.  23,  34. 
I's  authority,  it  is  more  important  to 
accustomed  to  perform  than  to  the 
•  those  of  a  manager  or  an  assist- 
ed to  by  his  principal  as  a  book- 
'  been  held  out  as  having  author- 
.  lid  to  receive  payment  therefor; 
.ity  to  that  extent."    Powell,  T.. 
^ly  Co.,  3  Ga.  App.  212,  214. 
u.an  Insurance  Co.,  23  Wend. 


CONTRACTS.  229 

PICKERING  V.  BUSK  and  another. 
1812.     Court  of  King's  Bench.     15  East  38. 

Trover  for  hemp.  At  the  trial  before  Lord  Ellenborough,  C.  J., 
at  the  sittings  after  Trinity  term  in  London,  it  appeared  that  Swal- 
low, a  broker  in  London,  engaged  in  the  hemp  trade,  had  purchased 
for  the  plaintifif,  a  merchant  at  Hull,  a  parcel  of  hemp  then  lying 
at  Symonds'  wharf  in  Southwark.  The  hemp  was  delivered  to 
Swallow,  at  the  desire  of  the  plaintifif,  by  a  transfer  in  the  books 
of  the  wharfinger  from  the  name  of  the  seller  to  that  of  Swallow. 
Shortly  afterwards  Swallow  purchased  for  the  plaintiff  another 
parcel  of  hemp,  lying  at  Brown's  quay,  Wapping,  which  latter  parcel 
was  transferred  into  the  names  of  Pickering  (the  plaintiff),  or  Swal- 
low. Both  these  parcels  of  hemp  were  duly  paid  for  by  the  plaintiff. 
Swallow,  however,  whilst  the  hemp  remained  thus  in  his  name,  hav- 
ing contracted  with  Hayward  and  Co.  as  the  broker  of  Blackburn 
and  Co.  for  the  sale  of  hemp,  and  having  none  of  his  own  to  de- 
liver, transferred  into  the  names  of  Hayward  and  Co.  the  above 
parcels  in  satisfaction  of  that  contract,  for  which  they  paid  him  the 
value.  Hayward  and  Co.  shortly  after  became  bankrupts ;  and  the 
plaintiff,  discovering  these  circumstances,  demanded  the  hemp  of  the 
defendants  their  assignees,  and  upon  their  refusal  to  deliver  it 
the  present  action  was  brought.  His  Lordship  was  of  opinion  upon 
this  evidence,  that  the  transfer  of  the  hemp,  by  direction  of  the 
plaintiff,  into  Swallow's  name,  authorized  him  to  deal  with  it  as 
owner,  with  respect  to  third  persons ;  and  that  the  plaintiff,  who 
had  thus  enabled  him  to  assume  the  appearance  of  ownership  to 
the  world,  must  abide  the  consequence  of  his  own  act.  A  verdict 
was  thereupon  found  for  the  defendants,  with  liberty  to  the  plaintiff 
to  move  to  set  it  aside. 

Lord  Ellenborough,  C.  J. — It  cannot  fairly  be  questioned  in  this 
case  but  that  Swallow  had  an  implied  authority  to  sell.  Strangers 
can  only  look  to  the  acts  of  the  parties,  and  to  the  external  indicia 
of  property,  and  not  to  the  private  communications  which  may 
pass  between  a  principal  and  his  broker:  and  if  a  person  authorize 
another  to  assume  the  apparent  right  of  disposing  of  property  in  the 
ordinary  course  of  trade,  it  must  be  presumed  that  the  apparent  au- 
thority is  the  real  authority.  I  cannot  subscribe  to  the  doctrine, 
that  a  broker's  engagements  are  necessarily  and  in  all  cases  limited 
to  his  actual  authority,  the  reality  of  which  is  afterwards  to  be 
tried  by  the  fact.  It  is  clear  that  he  may  bind  his  principal  within 
the  limits  of  the  authority  with  which  he  has  been  apparently  clothed 
by  the  principal  in  respect  of  the  subject-matter;  and  there  would 
be  no  safety  in  mercantile  transactions  if  he  could  not.  If  the  princi- 
pal send  his  commodity  to  a  place,  where  it  is  the  ordinar}'^  business 
of  the  person  to  whom  it  is  confided  to  sell,  it  must  be  intended  that 


230  LIABILITY   TO  THIRD   PERSONS. 

the  commodity  was  sent  thither  for  the  purpose  of  sale.  If  the 
owner  of  a  horse  send  it  to  a  repository  of  sale,  can  it  be  implied  that 
he  sent  it  thither  for  any  other  purpose  than  that  of  sale?  Or  if 
one  send  goods  to  an  auction-room,  can  it  be  supposed  that  he  sent 
them  thither  merely  for  safe  custody?  Where  the  commodity  is 
sent  in  such  a  way  and  to  such  a  place  as  to  exhibit  an  apparent  pur- 
pose of  sale,  the  principal  will  be  bound,  and  the  purchaser  safe. 
The  case  of  a  factor  not  being  able  to  pledge  the  goods  of  his  princi- 
pal confided  to  him  for  sale,  though  clothed  with  an  apparent  owner- 
ship, has  been  pressed  upon  us  in  the  argument,  and  considerably  dis- 
tressed our  decision.  The  court,  however,  will  decide  that  question 
when  it  arises,  consistently  with  the  principle  on  which  the  present 
decision  is  founded.  It  was  a  hard  doctrine  when  the  pawnee  was 
told  that  the  pledger  of  the  goods  had  no  authority  to  pledge  them, 
being  a  mere  factor  for  sale ;  and  yet  since  the  case  of  Paterson  v. 
Tash,  that  doctrine  has  never  been  overturned.  I  remember  Mr. 
Wallace  arguing,  in  Campbell  v.  Wright,  4  Burr.  2046,  that  the 
bills  of  lading  ought  to  designate  the  consignee  as  factor,  otherwise 
it  was  but  just  that  the  consignors  should  abide  by  the  consequence 
of  having  misled  the  pawnees.  The  present  case,  however,  is  not 
the  case  of  a  pawn,  but  that  of  a  sale  by  a  broker  having  the  pos- 
session for  the  purpose  of  sale.  The  sale  was  made  by  a  person  who 
had  all  the  indicia  of  property :  the  hemp  could  only  have  been  trans- 
ferred into  his  name  for  the  purpose  of  sale ;  and  the  party  who  has 
so  transferred  it  cannot  now  rescind  the  contract.  If  the  plaintiff 
had  intended  to  retain  the  dominion  over  the  hemp,  he  should  have 
placed  it  in  the  wharfinger's  books  in  his  own  name. 

Grose_,  J. — The  question,  whether  the  plaintiff  is  bound  by  the 
act  of  Swallow,  depends  upon  the  authority  which  Swallow  had. 
This  being  a  mercantile  transaction,  the  jury  were  most  competent  to 
decide  it ;  and  if  I  had  entertained  any  doubt,  I  should  rather  have 
referred  the  question  to  them  for  their  determination :  but  I  ain 
perfectly  satisfied :  I  think  Swallow  had  a  power  to  sell. 

Le  Blanc,  J. — The  law  is  clearly  laid  down,  that  the  mere  posses- 
sion of  personal  property  does  not  convey  a  title  to  dispose  of  it ;  and, 
which  is  equally  clear,  that  the  possession  of  a  factor  or  broker  does 
not  authorize  him  to  pledge.  But  this  is  a  case  of  sale.  The  ques- 
tion then  is  whether  Swallow  had  an  authority  to  sell.  To  decide 
this  let  us  look  at  the  situation  of  the  parties.  Swallow  was  a  gen- 
eral seller  of  hemp ;  the  hemp  in  question  was  left  in  the  custody  of 
the  wharfingers,  part  in  the  name  of  Swallow,  and  part  in  the  name 
of  plaintiff  or  Swallow,  which  is  the  same  thing.  Now  for  what  pur- 
pose could  the  plaintiff  leave  it  in  the  name  of  Swallow,  but  that 
Swallow  might  dispose  of  it  in  his  ordinary  business  as  broker ;  if  so, 
the  broker  having  sold  the  hemp,  the  principal  is  bound.  This  is  dis- 
tinguishable from  all  the  cases  where  goods  are  left  in  the  custody  of 
persons,  whose  proper  business  it  is  not  to  sell. 


I 


COXT  2ZL 

ii.EY,  J. — It  may  be  admitted  that  the  ■   not  give 


Swallow  any  express  authority  to  sell;  but  .... 
may  be  g-ivei:  ;  rnd  if  a  person  put  goods  into  the 
''3se  common  business  it  is  to  -^r''     •  '  'out  limiin.i.' 
thereby  confers  an  implied  uoon  him 

•'    was  in  the  habit  of  buyuig;  aii 
ng  their  names.     And  now  the  jk 
rt-ci  ;  1  the  contract,  because  no  express  au: 
S\vali':'vv  to  sell.    But  is  it  competent  to  him  S'    c 
ant  of  a  horse-dealer,  with  express  directions  not  t' 
rant,    the    master    is    bound ;    because    the    st 
general  authority' to   sell,   is  in  a  condition  to 
master  has  not  j/otified  to  the  world  that  the  ge: 
circ!im?cr'b',d.    T'hii  case  dGe=  fi''^t  ^proceed  on  the 
ill  •  ert,  but  it  proc  ^he  principle,  ilia- 

tia-  Swallow  an  aut  •  sell,  he  is  not  at 

wards,  re  has  been  a  sale,  to  deny  the  authorit 


.869.     Court  of  Appeals  01  .Marylaind.    31  ,\ia.  543. 

Appeal  from  the  Baltimore  City  Court. 

The  facts  are  sufficiently  detailed  in  the  opinion  of  t'  •■ 

Bartol.  C.  J. — The  appellee,  plaintiff  below,  was 
'■■.  as  widow  of  Richard  Allen, 
my,  to  receive  from  the  trcr^ 
ihice  1.;  ■  for  bo  •  the  dece? 

Her  r  ;>ut  in  dv.     ,  of  law,  -'quisite  affi- 

davits and  proof  annexed,  was  placed  by  her  ^n  in  the 

hands  of  William  E.  Hanson,  and  .appendec  '^  •'    *'  1- 

lowing  order  or  draft: 

;  e  the  true  owner  holds  oat  another,  or  allows  him  to  aijpear,  as  the 


lom  they 
'1  precluc 
r  power  wiucii,  \.\ 


Public  St.au- "-'s,  c.  71.  §  I. 


230 


MATiyi  IVY  TO  THIRD  PERSONS. 


'lie  commodity  wi. 
•■■  -  of  a  horse  se 
:t  it  thither  ; 
.nc  >Ciid  i;ood^  ' 
[lieni  thither  ',■ 
sent  in  such  a  a- 
pose  of  sale,  tl 
The  case  of  a  ♦ 
pal  confided  tr 
ship,  has  b- 
tressed  our 
Avhen  it  ar,' 
decisiov 
told  th 
be- 


the  broi^ei  hav 
tinguishable  ft 
persons,  whos^ 


i;  purpose  of  sale.     If  the 

,  sal"  ■        '  he  implied  that 

'    u  t  sale?     Or  if 

■au  It  i-  '    '       lie  sent 

iv>     "VN  Jity  is 

it  piir- 

•  safe. 

his  princi- 

.  ,  .v.x  ..:..     -eat  owner- 

•  t,  and  ocr.siderably  dis- 

o>.v„-ii,  will  decide  tliat  question 

the  principle  on  wliich  the  present 

"    '"  *  •      ^^ee  was 

,;.  them, 

i>aie ;  ajj'i  yet  sitice  liie  cast-  ot  Paterson  v. 

ne  ( ;    been  overturned.     I  remember  Mr. 

.'.  Wright,  4  Burr,  2046,  that  the 

'' e  consignee  as  factor,  otherwise 

iiould  abide  by  the  consequence 

i  he  present  case,  however,  is  not 

•<  sale  by  a  broker  having  the  pos- 

'  sale  was  made  by  a  person  who 

omp  could  only  have  been  trans- 

c  of  sale ;  and  the  party  who  has 

1  the  contract.     If  the  plaintiff 

over  the  hemp,  he  should  have 

m  his  own  name. 

I  the  plaintiff  is  bound  by  the 

authority  which  Swallow  had. 

ihe  jury  were  most  competent  to 

itiy  doubt,  I  should  rather  have 

their  determination :  but  I  air, 

'ad  a  power  to  sell. 

laid  dov.'*    ■^■'  *  'he  mere  posses- 

avey  a  t  /)Ose  of  it ;  and, 

■  .1  of  a  iuci'-/r  or  broker  does 

-  a  case  of  sale.    The  ques- 

tity  to  sell.    To  decide 

s.     Swallow  was  a  gen- 

1  was  left  in  the  custody  of 

illow,  and  part  in  the  name 

thing.    Now  for  what  pur- 

-  le  of  Swallow,  but  that 

'  nsiness  as  broker;  if  so, 

:  •     'Mi.  This  is  dis- 

I'l  the  custody  of 


CONTRACTS.  23I 

Bayley,  J. — It  may  be  admitted  that  the  plaintiff  did  not  give 
Swallow  any  express  authority  to  sell ;  but  an  implied  authority 
may  be  given ;  and  if  a  person  put  goods  into  the  custody  of  another 
whose  common  business  it  is  to  sell,  without  limiting  his  authority, 
he  thereby  confers  an  implied  authority  upon  him  to  sell  them. 
Swallow  was  in  the  habit  of  buying  and  selling  hemp  for  others, 
concealing  their  names.  And  now  the  plaintiff  claims  a  liberty  to 
rescind  the  contract,  because  no  express  authority  was  given  to 
Swallow  to  sell.  But  is  it  competent  to  him  so  to  do  ?  If  the  serv- 
ant of  a  horse-dealer,  with  express  directions  not  to  warrant,  do  war- 
rant, the  master  is  bound ;  because  the  servant,  having  a 
general  authority  to  sell,  is  in  a  condition  to  warrant,  and  the 
master  has  not  notified  to  the  world  that  the  general  authority  is 
circumscribed.  This  case  does  not  proceed  on  the  ground  of  a  sale 
in  market  overt,  but  it  proceeds  on  the  principle,  that  the  plaintiff 
having  given  Swallow  an  authority  to  sell,  he  is  not  at  liberty  after- 
wards, when  there  has  been  a  sale,  to  deny  the  authority. 

Rule  discharg-ed.^ 


LISTER  AND  SUPPLEE  v.  ALLEN. 
1869.     Court  of  Appeals  of  Maryland.     31  Md.  543. 

Appeal  from  the  Baltimore  City  Court. 

The  facts  are  sufficiently  detailed  in  the  opinion  of  the  court. 

Bartol,  C.  J. — The  appellee,  plaintiff  below,  was  entitled  under 
the  laws  of  the  state,  as  widow  of  Richard  Allen,  late  a  soldier  in 
the  United  States  army,  to  receive  from  the  treasury  the  sum  of 
three  hundred  dollars  for  bounty  due  the  deceased. 

Her  claim,  made  out  in  due  form  of  law,  with  the  requisite  affi- 
davits and  proof  annexed,  was  placed  by  her  for  collection  in  the 
hands  of  William  E.  Hanson,  and  appended  thereto  was  the  fol- 
lowing order  or  draft: 

^  "Where  the  true  owner  holds  out  another,  or  allows  him  to  appear,  as  the 
owner  of,  or  as  having  full  power  of  disposition  over  the  property,  and  inno- 
cent third  parties  are  thus  led  into  dealing  with  such  apparent  owner,  they  will 
be  protected.  Their  rights  in  such  cases  do  not  depend  upon  the  actual  title 
or  authority  of  the  party  with  whom  they  deal  directly,  but  are  derived  from 
the  act  of  the  real  owner,  which  precludes  him  from  disputing,  as  against 
them,  the  existence  of  the  title  or  power  which,  through  negligence  or  mis- 
taken confidence,  he  caused  or  allowed  to  appear  to  be  vested  in  the  party 
making  the  conveyance."  Rapallo,  J.,  in  McNeil  v.  Tenth  National  Bank,  46 
N.  Y.  325..  329. 

The  decision  of  Pickering  v.  Busk  was  incorporated  into  the  English  Fac- 
tor's Acts :  4  Geo.  IV,  c.  83,  5  and  6  Victoria,  c.  39,  §  4,  and  52  and  53  Vic- 
toria, c.  45,  §  I-  See  also  Laws  of  New  York,  1830,  c.  179,  §  3,  and  Massa- 
chusetts Public  Statutes,  c.  71,  §  i. 


232  LIABILITY    TO   THIRD   PERSONS. 

"$300.  186—. 

"The  treasurer  of  the  State  of  Alaryland,  pay  to  the  order  of 
WilHam  E.  Hanson  the  sum  of  Three  Hundred  Dollars,  being  bal- 
ance of  state  bounty  due  me  as  the  widow  of  Richard  Allen,  a 
volunteer  in  Company  H,  in  30th  Regiment,  U.  S.  C.  troops.  Under 
the  act  of  the  general  assembly  of  Maryland  of  1864,  chapter  15,. 
and  amendments  thereto." 

her 
"Emeline  +  Allen." 
mark. 
"Witnessed  by  Jos.  B.  Ruth,  J.  P." 

Evidence  was  offered  to  prove  that  Hanson  paid  nothing  to  the 
plaintiff  for  the  claim ;  that  he  passed  it  over  to  one  James  Camp- 
bell, a  bounty  broker,  but  for  what  consideration  does  not  appear. 
Campbell  sold  it  to  the  appellants  for  $165,  and  they  received  the 
amount  ($300)  from  the  treasury.  The  object  of  the  suit  is  to 
recover  from  them  this  sum,  as  money  had  and  received  for  the  use 
of  the  plaintiff. 

At  the  trial  the  defendants  asked  the  court  to  instruct  the  jury 
"that  if  they  found  the  defendants  purchased  the  claim  for  bounty  in 
question  at  a  fair  market  price,  without  any  collusion  with  Hanson 
or  his  agent,  and  paid  their  money  for  the  same,  then  the  plaintiff 
is  not  entitled  to  recover." 

This  prayer  was  refused  and  the  prayer  of  the  plaintiff  was 
granted,  instructing  the  jury  substantially,  "that  if  they  believed 
from  the  evidence  the  plaintiff  placed  her  claim  in  the  hands  of  Han- 
son, a  claim  agent,  with  an  understanding  that  the  same  should  be 
collected  in  the  usual  mode,  and  paid  over  to  her,  but  without  au^ 
thority  to  sell  the  said  claim,  and  that  Hanson  sold  the  same,  or 
caused  it  to  be  sold,  without  her  authority  or  consent,  to  the  defend- 
ants, who  afterwards  collected  the  full  amount  from  the  state,  then 
the  plaintiff  is  entitled  to  recover  said  three  hundred  dollars,  with 
interest  from  the  date  of  its  payment." 

The  jury  found  a  verdict  in  favor  of  the  plaintiff;  and  the  appeal 
brings  up  for  review  the  ruling  of  the  court  below  on  the  prayers. 

The  defendants  claim  exemption  from  liability,  on  the  ground  that 
they  were  bona  fide  purchasers  of  the  claim  for  value.  But  the  court 
asserted  the  right  of  the  plaintiff'  to  recover,  provided  the  jury  found 
that  Hanson  was  her  agent  only  to  collect,  without  any  authority  to 
sell,  and  if  he  sold  without  her  knowledge  or  consent,  the  purchasers 
acquired  no  title  as  against  her,  although  they  may  have  acted  in 
good  faith. 

In  support  of  this  position,  we  have  been  referred  to  Chitty  on 
Contracts,  200,  and  to  Batty  v.  Carswell,  2  Johns.  48,  and  Rossiter  v. 
Rossiter,  8  Wend.  494  (24  Am.  Dec.  62). 


CONTRACTS. 

announce  the  doctrine  thr 
.1  liis  principal,  unle?"  "■'--♦^' 
he  rule  as  follows ; 
.ted  onl\ 

•;rs.  Of.  '. 

.e  duty  of  persoi 
'.f  his  authorit} . 

}■  any  act  of  the  a^ent  not  Avarranted  <. 
...:cessarv  implic'-"-"    ''"'^^   '''■'■'^  i.  .-r-i  ot 
•  him." 
■"'ieral  rule  is  ccn^'^i;   uit   ;i;   cu-  :a)p;ic;iULn 
,^  rights  of  third  nersons  who  have  dealt 
i.  iaith,  care  mu;-'  "t  to  bind  them 

n  the  authority  by  the  private  i 

',  which  are  not  icnuwn  to  such  third  personb,  n  ■:   prop- 
_  .„ie  from  the  nature  of  the  agent's  employment 
't^rkin's  note  to  the  text  of  Chitty,  above  quoted, 
■-    tly  said:    "A  general  authority  arises  from  a  l' 
in  a  specific  capacity,  such  as  factor,  broker,  att 
"■     *     *     "  ■"  .1  authority  of  this  kind  empowers  the 

o  bind  the  e-  ;jy  all  acts  within  tb.e  scope  of  his  em- 

nt,  and  that  power  cannot  be  limited  by  any  private  order  or 
:i  not  known  to  the  party  dealing  with  the  agent." 
e  Story,  in  his  work  on  Agency,  §  443,  says : 
'^e  responsibility  of  the  principal  to  third  persons  is   i.'r- 
cases  where  the  contract  has  been  actually  made  under 
'    :■    I 'i^d  authority. 

.        ler,  and  binds  the  principal  in  all  ca'^^s  where 
•  acting-  within  the  scope  of  his  usual 
the  public  or  to  the  other  party  as 
Ithough  in  fact  he  has,  in  the  particular 
;  1,  I  )n,;s  instructions  and  acted  withn"^ 
b.ere  one  of  two  innocent  pe 
•   r  who  !   "  '    '    '       '■■.er  into  the  ( 
as   coni;  ,   and   as    c 

"incipal  should  clothe  the  agent, 

ill  the  apparent  muniments  *  -  title 

•-'T- -If,  the  principal  wouU'  ''•■'"  >..c  acts 

imple,  if  he  should  r  h  the  ap- 

■y  ,>y  a  bill  c"  '•'■--     ■  '  ■"  r 

to  he  an  a  t 
!  blank. 

,■171     of     1 

corres)' 
.  .'na  fi('f' 
nst  him 


f   state  \> 

*;r  in  Co. 

of  the  . 


RD   PERSO:-. 

i86~. 

'  order  oi 

i>eing  bal- 
Allen,  a 

!'"'•.!    :l    , 

.-.  Under 

Alarylaii 

•apter  15 

imessei 


be; 


xc:--  -  ■ 
of  the 


thorif.v 


•I'Uiiui;    in    Liic 

James  Carnp- 

3  not  appear, 
received  the 

irv.      i i 

the  suit  is  to 

n.ir..-v  V 

V  i1  for  the  use 

"1  was  h'. 
he  sold  "» 
acnuir<.<i   p.o  title  a- 
g-ood  faith. 

In  support  of  this  p 
Contracts,  200,  and  '^  ' 
Rossiter,  8  Wend. 


M-.'_'i     u:r    .v.-;;;     u_.    iu^t:.;Ct    the    jurv 

cs  purchased  the  claim  for  bounty  in 

■  '  '''ision  with  Hanson 

,  then  the  plaintiff 

■"       1'    .  -■     '  '    the  plaintiff  was 

mtially,  "that  if  they  believed 

-.  .^l  her  claim  in  the  hands  of  Han- 

erstanding  that  the  same  should  be 

i  paid  over  to  her,  but  without  aU' 

•id  that  Hanson  sold  tl^ie  same,  or 

■    '  or  consent,  to  the  defend- 

mount  from  the  state,  then 

aid  three  hundred  dollars,  with 

of  the  plaintiff;  and  the  appeal 

e  court  below  on  the  prayers. 

•  om  liability,  on  the  ground  that 

claim  for  value.    But  the  court 

■cfvver,  prov-ided  the  jury  found 

•jt  any  authority  to 

^ent;,  the  purchasers 

h  they  may  have  acted  in 

been  referred  to  Chitty  on 
'^■'^hns,  48,  and  Rossiter  v. 


CONTRACTS.  233 

These  authorities  announce  the  doctrine  that  the  acts  of  a  special 
agent  do  not  bind  his  principal,  unless  strictly  within  his  authority. 

Chitty  states  the  rule  as  follows : 

"If  the  agent  is  appointed  only  for  a  particular  purpose,  and  is  in- 
vested with  limited  powers,  or,  in  other  words,  is  a  special  agent, 
then  it  is  the  duty  of  persons  dealing  with  such  agent  to  ascertain 
the  extent  of  his  authority,  and  the  principal  or  master  will  not 
be  bound  by  any  act  of  the  agent  not  warranted  expressly  by,  or  by 
fair  and  necessary  implication  from,  the  terms  of  the  authority  dele- 
gated to  him." 

This  general  rule  is  correct ;  but  in  the  application  of  it  to  cases 
affecting  the  rights  of  third  persons  who  have  dealt  with  the  agent 
in  good  faith,  care  must  be  taken  not  to  bind  them  by  limitations 
placed  on  the  authority  of  the  agent  by  the  private  instructions  of 
the  principal,  which  are  not  known  to  such  third  persons,  nor  prop- 
erly inferable  from  the  nature  of  the  agent's  emplo3'ment. 

In  Perkin's  note  to  the  text  of  Chitty,  above  quoted,  page  200, 
it  is  correctly  said :  "A  general  authority  arises  from  a  general 
employment  in  a  specific  capacity,  such  as  factor,  broker,  attorney, 
etc."'  *  *  *  "  \  general  authority  of  this  kind  empowers  the 
agent  to  bind  the  employee  by  all  acts  within  the  scope  of  his  em- 
ployment, and  that  power  cannot  be  limited  by  any  private  order  or 
direction  not  known  to  the  party  dealing  with  the  agent." 

Judge  Story,  in  his  work  on  Agency,  §  z^43,  says : 

"But  the  responsibility  of  the  principal  to  third  persons  is  not 
confined  to  cases  where  the  contract  has  been  actually  made  under 
his  express  or  implied  authority. 

"It  extends  further,  and  binds  the  principal  in  all  cases  where 
the  agent  is  acting  within  the  scope  of  his  usual  employment,  or  is 
held  out  to  the  public  or  to  the  other  party  as  having  competent 
authority,  although  in  fact  he  has,  in  the  particular  instance,  ex- 
ceeded or  violated  his  instructions  and  acted  without  authority.  For 
in  all  such  cases,  where  one  of  two  innocent  persons  is  to  sufifer, 
he  ought  to  suffer  who  misled  the  other  into  the  contract  by  holding 
out  the  agent  as  competent  to  act,  and  as  enjoying  his  confi- 
dence.   *    *    *" 

"So  if  the  principal  should  clothe  the  agent,  although  a  mere 
special  agent,  with  all  the  apparent  muniments  of  an  absolute  title 
to  the  property  in  himself,  the  principal  would  be  bound  by  the  acts 
of  the  latter;  as,  for  example,  if  he  should  clothe  him  with  the  ap- 
parent title  to  property  by  a  bill  of  lading  of  shipment,  as  by  making 
the  shipment  appear  to  be  an  account  of  the  agent,  or  should  trust 
him  with  negotiable  securities  indorsed  in  blank,  a  sale  or  disposal 
thereof  by  the  agent,  although  in  violation  of  his  private  orders, 
would  bind  the  principal,  and  give  correspondent  rights  and  remedies 
to  third  persons  who  became  bona  fide  possessors  under  such  sale 
or  other  act  of  disposal  against  him." 


234  LIABILITY   TO  THIRD   PERSONS. 

The  principle  thus  stated  by  Judge  Story  is  supported  by  the  au- 
thority both  of  elementary  writers  and  of  adjudged  cases,  and  seems 
to  be  applicable  to  the  present  case. 

Hanson  was  acting  as  the  attorney  in  fact  for  the  plaintiff,  she 
placed  in  his  hands  the  evidence  of  her  bounty  claim,  and  by  her 
written  order  on  the  treasurer  directed  that  the  same  should  be  paid 
to  the  order  of  Hanson. 

As  between  the  original  parties,  the  effect  of  this  transaction 
was  to  constitute  Hanson  as  the  mere  agent  or  attorney  in  fact 
of  the  plaintiff  to  collect  the  money ;  and  he  would  be  liable  to  her 
for  any  violation  of  duty  by  the  sale  or  conversion  of  her  property 
without  her  authority  or  consent.  But  it  does  not  follow  that  such 
liability  would  attach  to  third  persons  who  have  dealt  with  the  agent 
in  good  faith,  with  no  other  knowledge  as  to  the  limits  of  his  agency 
except  what  the  written  papers  disclose.  On  the  contrary,  the  claim 
being  in  its  nature  assignable,  as  was  decided  in  Eichelberger  v.  Sif- 
ford,  27  Md.  320,  the  possession  by  Hanson  of  the  written  evidence 
of  the  claim,  and  the  order  or  check  of  the  plaintiff  thereon  directing 
the  same  to  be  paid  to  his  order,  placed  in  his  hands  such  muniments 
of  title  as  authorized  the  appellants  to  deal  with  him  as  owner,  or 
as  having  the  power  of  disposition ;  and  if  they  so  dealt  with  him 
in  good  faith,  and  purchased  for  a  valuable  consideration,  they 
are  entitled  to  be  protected  against  the  claim  of  the  principal,  al- 
though Hanson  may  have  violated  his  instructions. 

In  such  case  the  loss  must  fall,  not  upon  the  appellants,  but  upon 
the  plaintiff,  who  inadvertently,  or  perhaps  ignorantly,  placed  it  in 
the  power  of  her  agent,  to  violate  her  confidence,  or  to  impose  upon 
third  persons. 

If  the  plaintiff's  check  upon  the  treasurer,  making  the  money  pay- 
able to  Hanson's  order,  be  regarded  as  an  ordinary  negotiable  se- 
curity, then,  by  the  law-merchant,  the  appellants,  if  they  took  it 
in  good  faith,  and  without  notice  of  the  nature  of  Hanson's  agency, 
would  clearly  be  entitled  to  protection  as  bona  fide  indorsees  for 
value. 

But  without  placing  the  case  upon  this  ground,  treating  the 
claim  as  mere  chose  in  action  assignable,  the  appellants  are  equally 
entitled  to  protection,  if  they  acquired  the  same  bona  fide  and  for 
value  from  Hanson  or  his  agent,  with  no  other  notice  of  the  rights 
of  Hanson,  or  the  nature  of  his  agency,  except  that  furnished  by  the 
papers  themselves. 

Being  of  opinion  that  there  was  error  in  the  instruction  given  to 
the  jury,  the  judgment  will  be  reversed,  with  leave  to  the  appellee  to 
take  out  writ  of  procendendo. 

Judgment  reversed,  with  leave  to  take  out  procendendo. 


TORTS.  235 

Section  2. — Torts. 

\UD  AND  DECt  I  I 

iHRKETT  V.  POSTAL  TELEGRAPH-CABLi. 

Appellate  Decision  of  Supreme  Court  of 
\pp.  Div.  115. 

Appeal  by  the  defendant,  al  Telegrapl 

frnir  1  judgment  of  the  Suj-  -. im<:   vJourt  in  favoi   «■ 
tnxti'  '  in  the  office  of  the  clerk  of  the  County  of  Yat 
'vr        '       .  1904,  upon  the  t  "1  referee. 

laut  from  1899  i  d  in  its  employ  as  •T'-^r;'. 

ai,  one  Hanington.     in*-,  uuiuiess  carried  on 
ice  was  quite  extensive  for  a  country  village 
c  r      '  -ited  by  the  plaintiff  was  large.    Harrington  was  in  full  con- 
fr   :         his  business  for  the  defendant.    A  rule  of  the  company  re- 
cjui         hat  he  deposit  the  funds  of  the  company  in  the  bank  "in  his 
or  to  the  credit  of  the  company  in  its  corporate  nam.e.'' 
e  first  of  these  alternatives  and  deposited  in  the  local 
credit  as  manager  the  money  he  received  belonging  to 
:.it.    He  only  had  one  account  at  this  bank  and  checked 
t  ro  meet  the  expenses  of  the  defendant  at  the  Penn  Yan 
'"ding  his  own  salary. 
'  n    rendered    itemized    statements    each    mont^ 

p!-  blanks  furnished  by  the  defendant  for  tha^ 

'Ik  paid  him  mainly  by  chpck  as  they  were  r> 

overch:=. 
ji-  ten  systt 

•  ' .  n,  who  confessed  nis  guilt  and  absconi  > 

r-  proved  that  the  extent  of  these  false  a^ 

items  and  excessive  charges,  was  $2 
i  ' -d  remitted  p-  —     -ms  and  r  - 

i'l'  unts  to  the  ■■'  X. 

he  rule  of  . 
'■  '  ',>le  to  a  thin; 

/ii'..i,i  .:  line  of  his  cnipioymcni,  ev 

••'' i    ii;  his  authority  ''and  the  pn/ 

ize,  justitv  of  it."     (Nowack  v.  ^  !<y.  Co.,  i6t'> 

N^    Y.    '''  irvis  V.    Manhattan   Beav.i.    ......    148   id.   '''" 

ding  this  rule  of  law,  the  appellant  cor 
'.    .t    Hnrnr  ^   in   the  line   of   his  em 

'  •  in^kitu--  ccounts  rendered  to  th- 

ndence  of  the  df~ 
ive  handling  of   r 
iige.    H  h  the  rendition  of  the  a-. 


1   PERSONS. 


-e  pnno: 

•'-  Mth  w  v.. 

I  i cable  h 

-.1  orde 

.  e  order  ^ 

As   bt: 

was  to  c 

of  the  pi 

for  rr-- 

^yi&  _ 

|h!r 


■    is  supported  by  the  au- 

i;  ,  i,r(.,i    '...f-g^  and  seenas 

;>laintiflt,  she 

and  by  her 

..  should  be  paid 

-s,  the  e^tect  of  this  transaction 

mere  agent  or  attorney  in  fact 

:y;  and  he  would  be  habie  to  her 

'r     -       -  of  her  property 

•  follow  that  such 

'  .kalt  with  the  ag-ent 

limits  of  his  agency 

disclose.    K./11  Uie  contrary,  the  claim 

,  as  was-  decided  ni  Eichelberger  v.  Sif- 

i>n  by  Hanson  of  the  written  evidence 

■:heck  of  the  plaintiff  thereon  directing 

r,  placed  in  hii»  hands  such  muniments 

:h  him  as  owner,  or 

y  so  dealt  with  him 

I    H   valuawe   consideration,   they 

•t  the  claim  of  the  principal,  al- 

.'.led  his  instructions. 

fill,  not  upon  the  appellants,  but  upon 

!y,  or  perhaps  ignorantly,  placed  it  in 

'       ronfidence,  or  to  impose  upon 

I  eusurer,  making  the  money  pay- 
ed as  an  ordinary  negotiable  se- 
,  tlie  appellants,  if  they  took  it 
't  the  nature  of  Hanson's  agency. 
<ction  as  bona  fide  indorsees  for 

upon  this   ground,  treating  the 

Mc,  the  appellants  are  equally 

the  same  bona  fide  and  for 

no  other  notice  of  the  rights 

except  that  furnished  by  the 

the  instruction  given  Ui 
•  1  leave  to  the  appelle 


ludinnent  revei 


procendendo. 


TORTS.  235 

Section  2. — Torts. 

(a)    FRAUD  AND  DECEIT. 

BIRKETT  V.  POSTAL  TELEGRAPH-CABLE  COMPANY. 

1905.    Appellate  Decision  of  Supreme  Court  of  New  York. 
107  App.  Div.  115. 

Appeal  by  the  defendant,  the  Postal  Telegraph-Cable  Company, 
from  a  judgment  of  the  Supreme  Court  in  favor  of  the  plaintiff, 
entered  in  the  office  of  the  clerk  of  the  County  of  Yates  on  the  27th 
day  of  June,  1904,  upon  the  report  of  a  referee. 

The  appellant  from  1899  to  1903  had  in  its  employ  as  manager  at 
Penn  Yan,  one  Harrington.  The  business  carried  on  at  the  defend- 
ant's office  was  quite  extensive  for  a  country  village  and  the  part 
contributed  by  the  plaintiff  was  large.  Harrington  was  in  full  con- 
trol of  this  business  for  the  defendant.  A  rule  of  the  company  re- 
quired that  he  deposit  the  funds  of  the  company  in  the  bank  "in  his 
official  name  or  to  the  credit  of  the  company  in  its  corporate  name." 
He  chose  the  first  of  these  alternatives  and  deposited  in  the  local 
bank  to  his  credit  as  manager  the  money  he  received  belonging  to 
the  defendant.  He  only  had  one  account  at  this  bank  and  checked 
against  it  to  meet  the  expenses  of  the  defendant  at  the  Penn  Yan 
office,  including  his  own  salary. 

Harrington  rendered  itemized  statements  each  month  to  the 
plaintiff  on  blanks  furnished  by  the  defendant  for  that  purpose  and 
the  plaintiff  paid  him  mainly  by  check  as  they  were  rendered. 

In  1903  he  accidentally  discovered  an  overcharge  which  led  to 
an  investigation  disclosing  that  he  had  been  systematically  mulcted 
by  Harrington,  who  confessed  his  guilt  and  absconded.  An  extended 
examination  proved  that  the  extent  of  these  false  accounts,  consisting 
of  fictitious  items  and  excessive  charges,  was  $2,480.24. 

Harrington  had  remitted  proper  sums  and  rendered  correct  state- 
ments of  the  accounts  to  the  defendant. 

Spring,  J. — The  rule  of  law  governing  this  case  is  elementary. 
A  principal  is  liable  to  a  third  person  for  the  misconduct  of  his  agent 
committed  in  the  line  of  his  employment,  even  though  the  offense 
was  in  excess  of  his  authority  "and  the  principal  did  not  author- 
ize, justify  or  know  of  it."  (Nowack  v.  Met.  St.  Ry.  Co.,  166 
N.  Y.  433,  440;  Jarvis  v.  Manhattan  Beach  Co.,  148  id.  652, 
657  et  seq.)  Conceding  this  rule  of  law,  the  appellant  contends 
that  Harrington  was  not  acting  in  the  line  of  his  employment 
in  making  false  entries  in  the  accounts  rendered  to  the  plaintiff. 
Harrington  had  general  superintendence  of  the  defendant's  office  in 
Penn  Yan.  He  had  the  exclusive  handling  of  its  funds  at  that 
village.    He  was  charged  with  the  rendition  of  the  accounts  to  the 


236  LIABILITY   TO   THIRD   PERSONS. 

plaintiff  and  with  collecting  for  the  telegrams  and  cablegrams  sent 
by  the  plaintiff  and  upon  which  there  were  charges  for  transmission. 
He  was  acting  within  the  scope  of  his  agency  in  receiving  the  money 
for  the  benefit  of  the  defendant.  If  the  plaintiff  had  paid  the  exact 
amount  due  and  Hariington  had  misappropriated  it  the  plaintiff 
could  not  have  been  compelled  to  respond  over  again  on  account 
of  the  misconduct  of  Harrington.  Of  course,  Harrington  was  not  au- 
thorized to  collect  money  of  the  plaintiff  for  telegrams  never  trans- 
mitted, but  it  was  his  duty  to  collect  the  sums  actually  due  for  their 
transmission.  If  he  collected  more  than  was  due  he  did  that  because 
of  his  agenc3\  The  agent  in  his  dealings  with  the  plaintiff  turned 
out  to  be  dishonest  while  acting  in  that  capacity.  His  delinquency 
does  not  exonerate  the  defendant  to  the  plaintiff  who  relied  upon 
the  manifest  authority  of  Harrington.  The  principal  cannot  so 
easily  evade  liability  for  the  misdeeds  of  its  agent.  The  general 
line  of  employment  is  fixed  by  the  agency,  and  whatever  an  agent 
does  to  an  innocent  third  person  within  that  general  line,  al- 
though ultra  vires,  he  represents  his  principal.  If  a  conductor  uses 
undue  violence  in  removing  a  passenger  from  a  train  the  railroad 
company  is  liable.  The  company  does  not  authorize  the  conductor 
to  handle  the  passenger  harshly,  but  it  does  empower  him  in  cer- 
tain cases  to  eject  the  passenger,  and  it  must  be  held  civilly  responsi- 
ble for  whatever  the  conductor  does  in  carrying  out  the  authority 
intrusted  to  him  even  though  he  oversteps  his  instructions.  The 
rule  here  applicable  is  founded  on  the  old  maxim  that  the  principal 
is  responsible  for  his  agent,  not  the  innocent  third  person. 

The  plaintiff  was  furnished  with  the  tariff  books  of  the  defendant, 
and  by  examination  of  each  statement  with  the  tariff  rates  could 
have  ascertained  that  he  was  being  cheated.  It  is  urged  that  he  was 
negligent  in  failing  to  make  these  examinations  and  should  not, 
therefore,  be  permitted  to  recover.  The  plaintiff  was  not  obliged  to 
act  on  the  assumption  that  Harrington  was  defrauding  him.  The 
defendant  had  placed  its  agent  in  the  responsible  position  of  man- 
ager of  its  business.  It  vouched  for  his  integrity  to  its  patrons. 
They  had  a  right  to  assume  he  was  honest  and  were  not  called  upon 
to  enter  into  any  inspection  of  the  items  of  his  accounts  for  the 
purpose  of  discovering  either  fraud  or  mistake. 

The  judgment  should  be  affirmed  with  costs. 

All  concurred. 

Judgment  affirmed,  with  costs. ^ 

'  Affirmed  by  Court  of  Appeals  in  186  N.  Y.  591. 

Accord:  McCord  v.  Western  Union  Telegraph  Co.,  39  Minn.  iSi.  On  page 
185  Vanderburgh,  J.,  says :  "It  was  the  business  of  the  agent  to  send  dis- 
patches of  a  similar  character,  and  such  acts  were  within  the  scope  of  his 
employment,  and  the  plaintiff  could  not  know  the  circumstances  which  made 
the  particular  act  wrongful  and  unauthorized.  As  to  him,  therefore,  it  must 
be  deemed  the  act  of  the  corporation." 


TORTS.  237 

HASKELL  V.  STARBIRD 

Supreme  Judicial  Court  of  Massach  -,2  Mass. 

117. 

.rt  for  false  and  fraudulent  representatioiiv  nd. 

iai  in  the  Superior  Court,  before  Brigl;<xni,  l 
a  verdict  for  the  plamtiif :  and  the  defendant 
which  appear  in  the  opinion. 
-,  J. — There  was  evidence  that  the  purcb"' 
ind  in  Canada,  in  w'hich  purchase  the  plai. 
've  been  deceived,  was  made  through  on 
he  agent  for  the  defendant :  and  that  the 
the  representations  1'  "     "well  that  Ui. 

>f  tv.-elve  hundred  dc  ..:;d  a  large  an,. 

'cent  to  a  flounsliiug  village,  which  repre-:; 
was  also  evidence  that  Rockwell  made  the;, 
■  as  the  agent  of  the  defendant.  Rockwell  also  testitieci  i^  ;>t 
dant  made  these  representations  to  him,  that  he  thereiuro 
n  to  the  plaintiff,  and  that  before  the  conveyance  was  made 
(he  defendant  that  he  had  so  made  them.    While  the 
■o  the  value  of  the  land  might  be  treated  as  an  expres- 
n,  only  those  in  reference  to  the  locality  of  the  land  and 
■  timber  on  it  were  statements  of  fact  of  importance  to 
)sing  to  purchase  it;  nor  does  the  land  appear  to  have 
.ccessible,  so  that  their  accuracy  could  have  been  tested 
I.  The  defendant  denied  that  he  ever  made  any  repre- 
iceming  the  condition  or  location  of  tl) 
ice  that  at  the  time  the  conveyance  was  1 
tiff  that  he  had  never  seen  the  lar, 
pt  what  he  had  been  informed, 
tant  requested  the  court  to  instruct  the 
'■^ry  shall  find  that  Rockwell  was  *.  . 
.\g  the  land  in  question,  and  that  as  ^' 
?sentations  relied  on,  and  that  after  ti  v.c 

time,  but  before  the  deed  of  thivS  ^  de- 

!f,  in  answer  to  inquiry  mad'  Ly  the 

lie  had  never  seen  the  land .  r  ■  nothing 

had  been  told  him,  and  without 

ed  the  deed  and  paid  the .1  agreed 

2.     If  tlie  jury  shall  find  that  Rockwell  was 
,.^cin.  ..I  iM.„  ..     .:dant  in  selling  the  land  in  question,  the  plaintitf 
'ot  recover,  unU-s>  it  is  proved  that  the  defendant  was  privy  to 
'    '    '  :'ons  relied  on." 

ib'^se  instructions,  3nd  instnirfed  th? 
i      ■  ed   and  aut 

Lii'.-   !  Hi'..  ^  of  that  ami 

Sand  and  did  ir.duce  the  plamtiff  to  buy,  and  made  false  and 


236 


PERSONS. 


ntiff  and  with  collect! 


•tnt  due 
i-i  not  hi 
:  :ne  miser 
thorized  ; 
vnitted,  i  . 
transrais 
-.-A  h\ 
out  • 
doe;- 
the 
eas; 


tiicTefore,  bf 

;;cr  on  the  'd 
t'tl'jndant  h;. 
:r-:rr  of  its  > 
i   :  V  had  a  : 


ams  and  cablegrams  sent 

1  e  'vwrc  charoft's  for  transmission. 

ills  agencv  in  '-.  .civing-  the  mone\ 

If  the  pP'  "l  paid  the  exact 

rnisapr  :    i^   the  plaintiff 

on  account 

,    awas  not  au- 

,ms  never  trans- 

lly  due  for  their 

did  that  because 

plaintiff  turned 

flis  delinquenc} 

relied  Upon 

^  a  I   cannot   s(j 

!t.     The  general 

iiatever  an  agent 

that   general   line,    al- 

'      If  a  conductor  uses 

a  train  the  railroad 

iithorize  the  conductor 

empower  him  incer- 

held  civilly  responsi- 

\ng  out  the  authority 

!  he  oversteps  his  instructions.     The 

1  on  the  old  maxim  that  the  principal 

lot  the  innocent  third  person. 

with  the  tariff  books  of  the  defendant, 

statement  with  the  tariff  rates  could 

T  cheated.    It  is  urged  that  he  wa? 

I'-e  examinations  and   should  not, 

ver.    The  plaintiff  was  not  obliged  tc 

.arrington  was  defrauding  him.     The 

t  in  the  responsible  position  of  man- 

'  ^^i  for  his  integrity  to  its  patrons. 

:  honest  and  were  not  called  upon 

le  items  of  his  accounts  for  the 

■  1  or  mistake. 

i  with  costs. 


le  plain ti 

collect  t"t 

nore  tha- 

an  his  dea' 

HCtino;-  in  tit 

to  the 
ngton. 
the  misdeeds  o! 
■.>.'d  by  the  agenc) , 
ird   person   within 
"resents  his  p"-  — 
,  mgr  a  passer;: 

■nny  does  aoL  . 
iily,  but  it  d'^e 
/-r,  and  i^ 
or  does  : 


atfinned. 


^l  by  Court  c 

M(  Col  ;1  V.   '. 


employ  ill  I 
the  partic 
be  deemc' 


v.  591. 

laoh  Co.,  39  Minn.  181.    On  rac-' 
-3  of  tile  agent  to  send    ' 
ere  within  the  scope  of 
'.;■  circnmstance.s  which  ir      " 
.\s  to  him,  therefore,  it  ' 


TORTS.  237 

HASKELL  V.  STARBIRD. 

1890.     Supreme  Judicial  Court  of  Massachusetts.     152  Mass. 

117. 

Tort  for  false  and  fraudulent  representations  in  the  sale  of  land. 
At  the  trial  in  the  Superior  Court,  before  Brigham,  C.  J.,  the  jury 
returned  a  verdict  for  the  plaintiff;  and  the  defendant  alleged  ex- 
ceptions, which  appear  in  the  opinion. 

Devens,  J. — There  was  evidence  that  the  purchase  of  a  certain 
tract  of  land  in  Canada,  in  which  purchase  the  plaintiff  alleged  him- 
self to  have  been  deceived,  was  made  through  one  Rockwell,  who 
acted  as  the  agent  for  the  defendant ;  and  that  the  plaintiff  was  de- 
ceived by  the  representations  made  by  Rockwell  that  the  land  was  of 
the  value  of  twelve  hundred  dollars,  contained  a  large  amount  of  tim- 
ber, and  was  adjacent  to  a  flourishing  village,  which  representations 
were  false.  There  was  also  evidence  that  Rockwell  made  these  repre- 
sentations as  the  agent  of  the  defendant.  Rockwell  also  testified  that 
the  defendant  made  these  representations  to  him,  that  he  therefore 
made  them  to  the  plaintiff',  and  that  before  the  conveyance  was  made 
he  informed  the  defendant  that  he  had  so  made  them.  While  the 
statement  as  to  the  value  of  the  land  might  be  treated  as  an  expres- 
sion of  opinion,  only  those  in  reference  to  the  locality  of  the  land  and 
the  amount  of  timber  on  it  were  statements  of  fact  of  importance  to 
any  one  proposing  to  purchase  it;  nor  does  the  land  appear  to  have 
been  readily  accessible,  so  that  their  accuracy  could  have  been  tested 
by  the  plaintiff.  The  defendant  denied  that  he  ever  made  any  repre- 
sentations concerning  the  condition  or  location  of  the  land,  and 
offered  evidence  that  at  the  time  the  conveyance  was  made  by  him 
he  informed  the  plaintiff'  that  he  had  never  seen  the  land,  and  knew 
nothing  about  it  except  what  he  had  been  informed. 

The  defendant  requested  the  court  to  instruct  the  jury  as  follows : 

I.  *Tf  the  jury  shall  find  that  Rockwell  was  the  agent  of  the 
defendant  in  selling  the  land  in  question,  and  that  as  such  agent  he 
made  the  misrepresentations  relied  on,  and  that  after  the  same  were 
made,  and  at  the  time,  but  before  the  deed  of  this  land  was  de- 
livered, the  defendant,  in  answer  to  inquiry  made  of  him  by  the 
plaintiff,  replied  that  he  had  never  seen  the  land,  and  knew  nothing 
about  it  except  what  had  been  told  him,  and  the  plaintiff  without 
further  inquiry  accepted  the  deed  and  paid  the  consideration  agreed 
on,  he  cannot  recover.  2.  If  the  jury  shall  find  that  Rockwell  was 
the  agent  of  the  defendant  in  selling  the  land  in  question,  the  plaintiff 
cannot  recover,  unless  it  is  proved  that  the  defendant  was  privy  to 
or  adopted  the  misrepresentations  relied  on." 

The  court  declined  to  give  these  instructions,  and  instructed  the 
jury:  "If  the  defendant  employed  and  authorized  Rockwell  to 
sell  the  land,  and  in  pursuance  of  that  authority  Rockwell  sold 
the  land  and  did  induce  the  plaintiff  to  buy,  and  made  false  and 


238  LIABILITY   TO  THIRD   PERSONS. 

fraudulent  representations  about  the  land,  upon  which  the  plaintiff 
relied  and  which  induced  him  to  purchase,  I  shall  instruct  you  that 
the  defendant  would  be  responsible  for  that  fraud,  notwithstanding 
there  were  no  instructions  given  to  Rockwell  by  the  defendant  which 
authorized  him  to  make  fraudulent  representations,  and  notwith- 
standing the  defendant  did  not  know  that  he  practised  those  fraudu- 
lent representations.  Employing  him  as  agent  or  as  his  agent  to  do 
that  thing,  he  became  responsible  for  the  methods  which  his  agent 
adopted  in  doing  that  thing.  *  *  *  jf  t^g  representations  were 
false  in  fact,  and  Rockwell  had  no  knowledge  personally  of  the  truth 
of  these  representations,  but  derived  his  information  from  others 
upon  those  facts,  he,  or  the  person  for  whom  he  was  acting  as  the 
agent  in  the  same,  would  be  liable  to  an  action  for  deceit." 

The  first  instruction  requested  and  refused  should  not  have  been 
given.  It  was  an  instruction  on  only  a  part  of  the  evidence,  and 
omitted  entirely  any  consideration  of  the  important  testimony  of 
Rockwell,  that  he  made  the  false  representations  acting  as  the  de- 
fendant's agent,  and  upon  his  express  authority,  and  also  that  the 
fact  that  they  had  been  made  was  communicated  to  the  defendant 
before  the  transaction  was  closed  by  the  payment  of  the  purchase 
money  and  the  making  of  the  conveyance.  Even  if  the  testimony 
of  Rockwell  was  denied  by  the  defendant,  and  controverted  by 
other  evidence,  the  instruction  asked,  if  given,  would  have  led 
the  jury  to  infer  that  it  was  unimportant  for  them  to  consider  this 
evidence,  and  that  the  mere  fact  that  the  defendant  made  the  re- 
marks testified  to  by  him  at  the  time  of  passing  the  deed  would 
prevent  the  plaintiff  from  recovering,  while  it  might  be  also  that  the 
plaintiff  in  completing  the  transaction  depended  upon  the  false  and 
fraudulent  representations  of  the  defendant's  agent  made  at  the 
defendant's  own  instance. 

The  contention  of  the  defendant  is,  that,  the  plaintiff  having  been 
put  upon  his  guard  by  this  conversation,  he  was  affected  by  all  the 
knowledge  which  he  might  have  obtained  if  he  had  inquired  further 
and  elsewhere.  But  the  defendant  did  not  in  the  conversation  in 
any  way  repudiate  the  representations  of  Rockwell,  assuming  them 
to  have  been  made,  or  put  the  plaintiff  on  inquiry  as  to  the  cor- 
rectness of  them.  On  the  contrary,  the  natural  inference  would  be 
that  the  defendant  adopted  them,  although  he  disclaimed  personal 
knowledge.  If  it  is  true  that  these  statements  of  Rockwell  had  been 
falsely  and  fraudulently  made,  and  especially  if  made  on  the  author- 
ity of  the  defendant  himself,  and  if  they  had  induced  the  plaintiff  to 
make  the  purchase,  the  defendant  cannot  extricate  himself  from  re- 
sponsibility therefor  by  such  a  disclaimer. 

The  instructions  of  the  court  upon  the  second  request  for  a  rul- 
ing— which  was  in  substance,  that,  even  if  Rockwell  was  the  agent 
of  the  defendant  to  sell,  the  plaintiff  could  not  recover  unless  it  was 
proved  that  the  defendant  was  privy  to  or  adopted  the  misrepre- 


TORTS.  239 

relied  on — made  the  defendant  resp.  e  false 

iulent  representations  as  to  t^^     "'"-^  '   ■  /' 
'!1  was  emoloved  bv  the  de 


•  :  uiiLii  ;>  oe.     Tiv 

ploying  ,,enttoii! 

r>le  for  the  methods  which  he  adopted  m  so  doing. 
.^>.uit  contends  that  Rockwell  was  a  special  agent  only,  a' 
his  authority  extended  only  to  the  sale  of  this  single  1 
'     '       '   '    'dant  is  !  '  '  n'  representation. 

c  made  orize: 

jS  in  which  a  'ui  1  made 

principal  for  ti  ^  i  and  07 

where  tlie  special  agent  did  not  have,  and  was  not  neid 
ing,  full  authority  to  do  that  which  he  undertook  "^ 
one  dealing  with  him  was  informed,  or  should  iv 
nself,  of  thelimi'r ''  -^      '  '   -  authority.    There  is  no     • 
the  matter  of  for  the  fraud  of  an  aerent 

to  do  business  ,  and  of  an  agent  f  to 

•^inp-lc  trarisacti'  either  case,  he  is  at  ..he 

he  was  employed  by  the  principal,  and  had  full 

.  ^.:te  tlie  transaction.    While  the  principal  may  not 

•rized  the  particular  act,  he  has  put  the  agent  in  his  place 
e  sale,  and  must  be  r"    -^  -hie  for  the  manner  ir  —>-■-- 
■iducted  himself  in  •',  business  which  the 


ce  Shaw'  m  Locke  v.  Steams,  i  Mer 

'lie  for  the  fa^-^-  -"^--esentations  of  ^^^^ 
►cent  of  the  ■?>  said  by  I^J 

er,  16  Gray  to  be  settled  b}  rnc  cicar  wcij^iiV 

by 

of 

aaking  ;■  in- 


roved  to  ha" 

ill''    cn-li    TM    ii 


nresentat 


tiir  the 


PEI 

-id. 

tSONS. 

upon 

which  the  plaintiff 

ase, 

I  shall  instruct  you  that 

that  frfli 

id    r.rwith standing 

it  which 

.lotwith- 

lose  fraudu- 

,  „. 

...    agent  to  do 

ior  \ 

the' 

.vhich  his  agent 

* 

If 

mentations  were 

no 

knowledf 

illy  of  the  truth 

-.ed 

his 

'      TT  otliers 

•  for 

wh 

.    ji"  as  the 

;  L. 

I  have  been 

on 

onl\ 

e  evidence,  and 

'!tion  of 

.  i..x\t  testimony  of 

use 

repr 

!^  acting"  as  the  de- 

.ic  e;  - 


vnd  also  that  the 

)  the  defendant 

of  the  purchase 

f  the  testimony 

■   I  i,  and  cojitroverted  by 

.,    .     given,   would   have   led 

jortant  for  them  to  consider  this 

....  that  i'^^  ■'  •'■^adant  made  the  re- 

:he  tini«  ng  the  deed  would 

'■  ;l  might  be  also  that  the 

iided  upon  the  false  and 

defendant's  agent  made  at  the 

The  cc-  is,  that,  the  plaintiff  having  been 

-^  '•'  '-'  ■"'■n,  he  was  affected  by  all  the 

d  if  he  had  inquired  further 
uid  not  in  the  conversation  in 
>ns  of  Rockwell,  assuming  them 
'ff  on  inquiry  as  to  the  cor- 
^  mtural  mference  would  be 
he  disclaimed  personal 
-lis  of  Rockwell  had  been 
cially  if  made  on  the  autli? 
'"'•d  induced  the  plaintiff 
tricate  himself  from 

•  cond  request  for  a  r 

of'th;,  :.,,,.;.  ■■   ;    .■ 

V>roved  that  the  defer,  o  or  adopted  the  misrej) 


TORTS.  239 

sentations  relied  on — made  the  defendant  responsible  for  the  false 
and  fraudulent  representations  as  to  the  land  made  by  Rockwell, 
if  Rockwell  was  employed  by  the  defendant  to  sell  the  land  as 
his  agent,  notwithstanding  Rockwell  was  not  authorized  to  make 
them,  and  notwithstanding  the  defendant  did  not  know  that  he  had 
made  them  until  after  the  conveyance.  They  held  that  the  defend- 
ant, by  employing  Rockwell  as  his  agent  to  make  the  sale,  became  re- 
sponsible for  the  methods  which  he  adopted  in  so  doing.  The  de- 
fendant contends  that  Rockwell  was  a  special  agent  only,  and  that, 
as  his  authority  extended  only  to  the  sale  of  this  single  tract  of 
land,  the  defendant  is  not  responsible  for  any  representations  Rock- 
well might  have  made  which  he  did  not  authorize. 

The  cases  in  which  a  distinction  has  been  made  in  the  responsi- 
bility of  a  principal  for  the  acts  of  general  and  of  special  agents 
are  those  where  the  special  agent  did  not  have,  and  was  not  held 
out  as  having,  full  authority  to  do  that  which  he  undertook  to  do, 
and  where  one  dealing  with  him  was  informed,  or  should  have  in- 
formed himself,  of  the  limitations  of  his  authority.  There  is  no  dis- 
tinction in  the  matter  of  responsibility  for  the  fraud  of  an  agent 
authorized  to  do  business  generally,  and  of  an  agent  employed  to 
conduct  a  single  transaction,  if,  in  either  case,  he  is  acting  in  the 
business  for  which  he  was  employed  by  the  principal,  and  had  full 
authority  to  complete  the  transaction.  While  the  principal  may  not 
have  authorized  the  particular  act,  he  has  put  the  agent  in  his  place 
to  make  the  sale,  and  must  be  responsible  for  the  manner  in  which 
he  has  conducted  himself  in  doing  the  business  which  the  princi- 
pal intrusted  to  him.  Benjamin  on  Sales  (3d  Am.  ed.),  §  465.  The 
rule  that  a  principal  is  liable  civilly  for  the  neglect,  fraud,  deceit,  or 
other  wrongful  act  of  his  agent,  although  the  principal  did  not  in 
fact  authorize  the  practice  of  such  acts,  is  quoted  with  approbation 
by  Chief  Justice  Shaw  in  Locke  v.  Stearns,  i  Met.  560.  That  a 
principal  is  liable  for  the  false  representations  of  his  agent,  although 
personally  innocent  of  the  fraud,  is  said  by  Mr.  Justice  Hoar,  in 
White  V.  Sawyer,  16  Gray  586,  589,  to  be  settled  by  the  clear  weight 
of  authority. 

In  the  case  at  bar,  if  the  false  representations  were  made  by 
Rockwell,  they  were  made  by  him  while  acting  \vithin  the  scope  of 
his  authority,  in  making  a  sale  of  land  which  the  defendant  em- 
ployed him  to  sell,  and  the  instruction  properly  held  the  defendant 
answerable  for  the  damage  occasioned  thereby.  Lothrop  v.  Adams, 
133  Mass.  471.  The  defendant  urges  that,  even  if  in  an  action  of 
contract  the  false  representations  of  Rockwell  as  his  agent  might 
render  the  defendant  responsible  as  the  principal,  he  cannot  thus  be 
made  responsible  in  an  action  of  tort  for  deceit,  and  that  in  such 
action  the  misrepresentation  must  be  proved  to  have  been  that  of 
the  principal.  It  is  sufficient  to  say  that  no  such  point  was  presented 
at  the  trial,  nor  do  we  consider  that  any  such  distinction  exists. 


240  LIABILITY   TO   THIRD   PERSONS. 

If  the  instruction,  "If  the  representations  were  false  in  fact,"  etc., 
is  to  be  treated  as  an  abstract  proposition,  intended  to  cover  the 
whole  case,  and  fully  to  state  under  what  circumstances  the  defend- 
ant would  be  responsible,  it  would  be  obviously  erroneous.  It  does 
not  require  that  the  representations  should  be  fraudulent,  as  well  as 
false,  and  it  does  not  contain  the  additional  and  necessary  element 
that  the  plaintiff  should  have  been  misled  and  deceived  by  them. 
It  is  not,  however,  to  be  thus  treated,  but  must  be  considered  in  its 
connection  with  the  part  of  the  case  and  the  subject  upon 
which  instructions  had  been  asked.  Both  sides  had  tried  the 
case  upon  the  assumption  that  Rockwell  had  made  statements 
that  were  false,  and  that  were  also  fraudulent,  either  as  re- 
garded himself  or  the  defendant.  Rockwell  had  testified,  on  behalf 
of  the  plaintiff,  that  he  had  made  these  representations  upon  the 
authority  of  the  defendant,  and  upon  information  derived  from  him, 
which  statement  had  been  denied  by  the  defendant.  The  instruc- 
tions asked  related  solely  to  the  question  of  agency,  and  do  not 
themselves  use  the  word  "false"  or  "fraudulent,"  but  only  the  word 
'"misrepresentations."  The  instruction  given  in  response  to  the  re- 
quest was,  that  the  defendant  would  be  liable  for  false  and  fraudu- 
lent representions  made  by  Rockwell,  if  he  employed  him  to  sell  the 
land,  and  if  the  latter  made  them  under  the  defendant's  authority  in 
selling  it.  The  correctness  of  the  instructions  on  this  point  we  have 
already  considered.  When,  therefore,  the  presiding  judge  dealt 
with  the  liability  of  the  defendant  for  representations  made  by 
P.ockwell  on  the  information  of  others, — the  only  information 
of  Rockwell,  so  far  as  the  case  shows,  being  derived  from  the 
defendant, — he  was  dealing  with  false  and  fraudulent  represen- 
tations, by  which  the  plaintiff  was  deceived,  although  in  such 
case  the  falsity  and  fraud  would  be  those  of  the  defendant  act- 
ing through  Rockwell  as  his  instrument.  The  part  of  the  case  to 
which  this  instruction,  as  well  as  the  former  ones  relate,  assumes 
that  the  representations  were  of  such  a  character  that  the  defendant 
was  liable  therefor,  if  he  was  liable  for  the  misrepresentations  of 
Rockwell.  Whether  those  representations  themselves,  in  the  terms 
in  which  they  were  made,  were  sufficient  to  make  the  defendant 
liable,  belonged  to  another  part  of  the  case,  not  then  under  discus- 
sion, and  to  facts  as  to  which  appropriate  instructions  were  given. 

It  is  not  a  fair  interpretation  of  the  last  instruction  to  hold,  as 
the  defendant  contends,  that  it  would  allow  the  plaintiff  to  recover 
if  there  had  been  a  representation  erroneous  in  fact,  and  yet  not 
knowingly  so  made,  either  by  Rockwell,  or  by  the  defendant  acting 
through  Rockwell,  nor  do  we  think  it  could  have  been  so  understood. 

Exceptions  overruled.^ 

"■Accord:   Rhoda  v.  Annis,  75  Me.  17;  Jeffrey  v.  Bigelow,  13  Wend.  (N.  Y.) 
.518;  Darks  v.  Scudders-Gale  Grocer  Co.  (Mo.),  130  S.  W.  430. 
See  Fidelity  Funding  Co.  v.  Vaughn,  18  Okla.  13. 


TORTS.  241 

D  andHALTJAPD 


■     :  why  a  iievv  Iri^ai 

is  a  suit  bottoi 
d  by  the  defendants,  in  the  sale  01:   loitv   biiar- 
,,     ..  .  .  the  State  Insurance  Company  to  the  plaintiff. 
!)o,.ed  deceit  consisted  in  unfounded  representations  as  to  the  ti-  . 
'ition  of  that  company.     The  stock,  at  the  time  of  the 
ding  on  the  corporate  books  m  the  name  of  the  defer'; 
and  the  sale  wa^  by  the  two  other  def 

'?e  plaintiff's  tesl  -is  to  be  c^'edited,  m. 

the  jury  has  iw.  -nt.     Ho 

:      .  ./ts,  permitted  ju:,..  c  to  be  t, 

hun,  and  the  verdict  has  implicated  ail  ot  the  three  defe^ 
the  deceit  of  the  transaction. 

But  this  finding,  so. far  as  Mr.  McKay  is  concerned,  seems  K- 

-  justified  by  the  evidence.    I  have  altogether  failed  to  nn-i 
)nony  that  connects  him,  in  rf"«pect  to  ?.nv  material  particu- 
'.1,        ;■  this  affair.     It  is  quite  n  that  the 

!'  ■■■■        ion  was  put  on  the  books  ^  n  in  the  nan- 

:  I        :    i<ay,  without  his  knowledge  or  consent.    Halliard,  the  presi- 
dent oi  the  insurance  company,  had  purchased  these  shar'--;    -v>'i:>' 
sundry  others,  with  the  moneys  of  the  company,  and,  v; 
\a:':]^  ['  .  '    binding,  had  '      '      ^^evice  of  '—■ 

*]■■■  ■  ;  of  Mr.  Mc:  -ig  his  c< 

■\e  step 
e  sale  in 
1  being  the  secretary  01  the  insur 
TC  .V  testified  that  to  the  time  of 
>  1  from  any  source  that  he  \v:. 

d  that  he  ^-    '    •      ' ■  ■    ' 

:;.  ■  led  to  becoii 

■n.    If  it  be  tru;;,  a.^^cio: 
^perty  to  the  plaintiff,  r 
■d,  wiiii  ;i  fraudulent  intent,  v. 

i.i!  r    M.'  ;',,n-  of  the  compan^. ,  

IcKay.    In  the  presence  of  this  direct  evidence, 
ed  on  t-^     '"..-;t  him  with  the  owner  ■'  ^     ' 


received 

'3  ir,a.  249,  254. 


se,  and 

1 

i    K<.    1/. 

■- 

,  ail' 

in 

t'lc-.l 

the 

pla^  . 

ll  i-.^ 

ao' 

Ci'-'Oi; 

ecti 

which    n 

case 

up 

that 

we; 

?arH 

f  • 

of  i; 

If  false  in  fact,"  : 
■  1  tended  to  cover   > 
circumstances  the  defend- 
■  >usly  erroneous.    It  doe ^ 
be  fraudulent,  as  well  a.- 
ii'>ual  and  necessary  element 
Misled  and  deceived  by  them. 
,  but  must  be  considered  in  its 
case    and    the    subject    upor? 
Both    sides    had    tried   the 
.    -jkwell    had    made   statements 
:    also    fraudulent,    either    as    re- 
Rockwell  had  testified,  on  behah 
,e  these  representations  upon  the 
■5 on  derived  from  hini, 
ndant.     The  instruc 
agency,  and  do  not 
,'"  but  only  the  wor<i 
en  in  response  to  the  re- 
:.  ,    ,-  ...;ble  for  false  and  fraudu- 
,  ell,  if  he  employed  him  to  sell  the 
under  the  defendant's  authority  in 
instructions  on  this  point  we  have 
refore,   i'  judge  -1 

■,  lant   for  ns   made 

'U    of    others, — the    only    information 
■^ase  shows,  being  derived  from  the 
■  h  false  and   fraudulent   represen 
.;.!  :    was    deceived,   although   in   sucb. 

cas-  'd  be'  those  of  the  defendant  act- 

■<'nt.     The  part  of  the  case  t' 
fomier  ones  relate,  asstiine' 
'iat  the  ''■ 
epreseni: 
■  s  themselves,  in  the  r- 
;..iviit  to  make  the  defend... 
•.  case,  not  then  under  discus 
;  J  THc;  riate  instructions  were  given. 

lot  a  f:^  !e  last  instruction  to  hold,  as 

'"  ■      ;'ip  ■  ^'-^'ififf  to  re*  "  ^  ■ 
:•:     :•■  L,  and  yei     ■ 
'If  by  the  defendant  a- 
..,_,.   ,.  !  s !  iir.ve  bee:i  .sf)  Vinders" 


s  overnv 


ijigelow,  13  Wtnd.  (. 
1^0  S.  W.  430. 


TORTS.  241 

KENNEDY  v.  McKAY,  REID  and  HALLIARD. 
1881.     Supreme  Court  of  New  Jersey.    43  N.  J.  L.  288. 

Ox  rule  to  show  cause  why  a  new  trial  should  not  be  granted. 

Beasley,  C.  J. — This  is  a  suit  bottomed  on  an  alleged  fraud 
committed  by  the  defendants,  in  the  sale  of  forty  shares  of  the 
stock  of  the  State  Insurance  Company  to  the  plaintiff.  The  sup- 
posed deceit  consisted  in  unfounded  representations  as  to  the  finan- 
cial condition  of  that  company.  The  stock,  at  the  time  of  the  sale, 
was  standing  on  the  corporate  books  in  the  name  of  the  defendant 
McKay,  and  the  sale  was  effected  by  the  two  other  defendants,  and 
who,  if  the  plaintiff's  testimony  was  to  be  credited,  made  the  state- 
ments which  the  jury  has  found  were  fraudulent.  Halliard,  one  of 
the  defendants,  permitted  judgment  by  default  to  be  taken  against 
him,  and  the  verdict  has  implicated  all  of  the  three  defendants  in 
the  deceit  of  the  transaction. 

But  this  finding,  so  far  as  Mr.  McKay  is  concerned,  seems  to  me 
not  to  be  justified  by  the  evidence.  I  have  altogether  failed  to  find 
any  testimony  that  connects  him,  in  respect  to  any  material  particu- 
lar, with  this  affair.  It  is  quite  conclusively  shown  that  the  stock 
in  question  was  put  on  the  books  of  the  corporation  in  the  name  of 
Mr.  McKay,  without  his  knowledge  or  consent.  Halliard,  the  presi- 
dent of  the  insurance  company,  had  purchased  these  shares,  with 
sundry  others,  with  the  moneys  of  the  company,  and,  wishing  to 
keep  them  outstanding,  had  resorted  to  the  device  of  transferring 
them  to  the  name  of  Mr.  McKay  without  asking  his  consent  or  ap- 
prising him  of  the  step  thus  unwarrantably  taken.  This  was  the 
situation  when  the  sale  in  question  was  made  by  Halliard  and  Reid, 
the  latter  then  being  the  secretary  of  the  insurance  company.  Both 
Reid  and  ^IcKay  testified  that  to  the  time  of  this  event  the  latter 
had  no  intimation  from  any  source  that  he  was  the  colorable  owner 
of  this  stock,  and  that  he  had  no  knowledge  whatever  that  the 
plaintiff  was  minded  to  become  a  purchaser  of  any  part  of  the  stock 
of  this  corporation.  If  it  be  true,  therefore,  that  Halliard  and  Reid, 
in  selling  this  property  to  the  plaintiff,  represented  it  as  McKay's 
stock,  and,  with  a  fraudulent  intent,  made  false  statements  touching 
the  financial  condition  of  the  company,  such  misconduct  could  not 
affect  the  defendant  McKay.  In  the  presence  of  this  direct  evidence, 
the  circumstance  relied  on  to  connect  him  with  the  ownership  of 

Regarding  measure  of  damages  in  an  action  against  the  principal  for  the 
fraud  of  the  agent,  see  Kell  v.  Trenchard,  142  Fed.  16. 

_  "If  defendant's  agent,  even  without  her  authority,  made  false  representa- 
tions of  a  material  character,  while  acting  in  her  behalf,  she  would  be  bound 
thereby  if  she  afterwards  ratified  his  action  and  received  the  benefit  thereof." 
Howk,  J.,  in  Du  Souchet  v.  Dutcher,  113  Ind.  249,  254. 
16 — Reinhard  Cases. 


242  LIABILITY   TO   THIRD   PERSONS. 

this  stock  or  its  sale,  are  of  too  uncertain  an  import  to  have  any 
controlHng  effect.  They  do  not  raise,  in  my  mind,  even  a  suspicion 
that  he  was  impHcated  in  this  matter. 

But  even  if  we  were  to  assume  that  this  stock  was,  in  reaHty,  the 
property  of  McKay,  and  that  HalHard  and  Reid  were  his  agents  to 
make  sale  of  it,  still  it  is  not  apparent  on  what  legal  theory  this 
present  action  could  be  sustained.  To  support  this  suit  against 
McKay  fraud  must  be  imputable  to  him,  and  the  case  is  entirely 
destitute  of  all  testimony  tending  to  show  that  he  authorized,  or  was 
privy  to  the  utterance  of  the  false  representations  in  question.  On 
the  ground  thus  assumed,  then,  the  case  would  be  that  of  a  sale 
made  by  fraud-doing  agents  in  behalf  of  an  innocent  vendor.  What- 
ever uncertainty  may  at  one  time  have  prevailed  in  regard  to  the 
legal  incidents  of  such  a  position,  such  uncertainty  no  longer  exists, 
and  the  rights,  under  the  given  circumstances,  of  both  vendor  and 
vendee,  have  been  plainly  defined,  and,  as  I  think,  firmly  settled 
by  recent  judicial  decisions.  In  the  light  of  such  authorities  it  is 
clear  that  an  innocent  vendor  cannot  be  sued  in  tort  for  the  fraud 
of  his  agent  in  effecting  a  sale.  In  such  a  juncture  the  aggrieved 
vendee  has,  at  law,  two,  and  only  two,  remedies ;  the  first  being  a 
recession  of  the  contract  of  sale  and  a  reclamation  of  the  money  paid 
by  him  from  the  vendors,  or  a  suit  against  the  agent,  founded  on 
the  deceit.  But  in  such  a  posture  of  affairs,  a  suit  based  on  the 
fraud  will  not  He  against  the  innocent  vendor,  on  account  of  the 
deceit  practiced  without  his  authority  or  knowledge,  by  his  agent. 
If  the  situation  is  such  that  the  vendee  can  make  complete  restitu- 
tion, so  as  to  put  the  vendor  in  the  condition  with  respect  to  the 
property  sold  that  he  was  in  at  the  time  of  the  sale,  he  has  the  right 
to  rescind  such  contract  of  sale,  and  if  the  vendor,  on  a  tender  to 
that  effect,  refuses  to  return  the  money  received  in  the  transaction, 
a  suit  will  lie  for  such  money,  but  such  refusal  on  the  part  of  the 
vendor  will  not  make  him  a  party  to  the  original  wrong,  so  that  he 
can  be  sued  for  the  deceit.  This  is  the  doctrine  declared  with  much 
clearness  and  force  by  Barons  Bramwell  and  Martin,  in  the  case 
of  Udell  V.  Atherton,  7  H.  &  N.  172,  and  their  views  on  this  sub- 
ject were  concurred  in,  and  the  principle  propounded  by  them  and 
adopted  and  enforced  by  the  House  of  Lords  in  Western  Bank  of 
Scotland  v.  Addie,  L,  R.,  i  Sc.  App.  146.  In  this  latter  case  the 
action  was  against  the  bank  for  deceit,  which  was  alleged  to  con- 
sist in  certain  fraudulent  represenattions,  charged  to  have  been  made 
on  a  sale  of  stock  to  the  plaintiff  by  the  directors  of  such  corpora- 
tion as  its  agents.  Lord  Chelmsford,  in  giving  his  views,  said : 
"The  distinction  to  be  drawn  from  the  authorities,  and  which  is 
sanctioned  by  sound  principle,  appears  to  be  this :  Where  a  person 
has  been  drawn  into  a  contract  to  purchase  shares  belonging  to  a 
company,  by  fraudulent  misrepresentations  of  the  directors,  and  suit 
is  brought  in  the  name  of  the  company  to  seek  to  enforce  that  con- 


'.  or  tho  '  ai^ainst 


laot  be  heid  to  iiis  coiiira- 

;',i'.    benefit  which  they  have   _      _ 

a-'.nts.    But  if  the  person  who  has  been  v. 
;  ,    ;h.-:  ^-  ••  '   ' -^  the  directors,  instead  ol  r  ^ 
V    .  o  brine  an  action  of  damage 


111   ulie  S  .  lU,  aim 

.  if  the  ■  .    ;nt  acts 

such  as  to  leave  him  no  remedy  bur  an 
c^^L-  h\^  remedy  -=:>  I'^^^r  *■'-■'  f'-r,.,r.-rc  ^^,^- 
•Irine  er- 

;-  to  be  alraOSl   ^'U;:./.;     ■  ■    •;  :■ 

1  to  the  nrPseiH'  r-i^r  v.  ill  '\3\ii  liu 


'  up  all  idea  of  a  rescission  of  the  contract  of  sale,  and  the 
-.  .-ace  is  that,  acordi;--  :..  rhe  doctrine  of  the  cases  cited,  b< 
t  connect  this  last-n;  endant  with  the  fraud  by  \vi 

■'• ■-■  effected,  if  i!„   .••.i...i  ob<:- ■  •  -  •-   '--  -   '       -;-  -^  :     ■ 

.•  has  altogether  failed. 
:ie  xiilc  should  be  m:!'' 


MATT  ■  .  RICE. 

\Vl5C0NSIN. 

■1     fro,.       .,      .u....,:       .    .        ...      ..,.      ..-.,. 

i.  C.  Ludwi-q-.  Tmijc.     Reversed. 


iy,  and  tor  the  purpose  <: 


it.  at  nr  near  the  co 


.  ,    .  -  .  j  have  any 
vd,  even  a  suspicion 


ilJI.    iic    i\.-»; 


But  even  if  his  stock  was,  in  reality,  the 

I  '  ,  ,  :  ^-^     •    .  .  ents  to 

:  ^  >,'(,,,'  ...  jfy  this 

To   support   this  suit  against 

-  -o  him,  and  the  case  is  entirely 

'iestitute  <.  show  that  he  authorized,  or  was- 

pri-^'v  ^'^    '  fresentations  in  question.     On 

■  ^  Lse  would  be  that  af  a  sale 

it  of  an  '  vendor.    What- 

have  p'  ■;  reofard  to  the 

exists, 

•  !or  and 

-,  hrmly  settled 

...    .iv.  .  authorities  it  is 

!0t  be  si  I  for  the  friud 

■'  iiic  the  aggrieved 

s;  the  first  being  a 

1  of  the  money  paid 

agent,  founded  on 

.  suit  based  on  the 

:-i::      ,  on  account  of  the 

Lity  or  knowledge,  by  his  agent. 

:  ;d?e  '-'in  make  complete  restitu- 

.   .*ion  with  respect  to  the 

ale.  he  has  the  right 

■  dor,,  on  a  tender  to 

wiiey  received  in  the  transaction, 

such  refusal  on  the  part  of  the 
o  the  original  wrong,  so  that  he 
•^'0  doctrine  declared  with  mi^'"'^^ 
ell  and  Martin,  in  the  c- 
Ttiid  their  views  on  this  s' 
/ie  propounded  by  them  a 
ds  in  Western  Bank 
In  this  latter  case 
.  which  was  alleged  to  C' 
-.  charged  to  have  been  m- 
le  directors  of  such  corpo 
,   ::^    ■••■•ing  his  views,  s;^■ 
rities,  and  which 
V  iliis:    Where  a  per:   • 
!'  shares  belonging  (.. 

'!>.,  and  suit 
.      '      re  that  con- 


TORTS.  243 

tract,  or  the  person  who  has  been  deceived  institutes  a  suit  against 
the  company  to  rescind  the  contract  on  the  ground  of  fraud,  the 
misrepresentations  are  imputable  to  the  company,  and  the  purchaser 
cannot  be  held  to  his  contract,  because  the  company  cannot  retain 
any  benefit  which  they  have  obtained  through  the  fraud  of  their 
agents.  But  if  the  person  who  has  been  induced  to  purchase  shares 
by  the  fraud  of  the  directors,  instead  of  seeking  to  set  aside  the 
contract  prefers  to  bring  an  action  of  damages  for  the  deceit,  such 
an  action  cannot  be  sustained  against  the  company,  but  only  against 
the  directors  personally."  Lord  Cranworth,  in  his  opinion,  puts 
himself  on  the  same  ground,  and  says :  "A  person  defrauded  by  the 
directors,  if  the  subsequent  acts  and  dealings  of  the  parties  have 
been  such  as  to  leave  him  no  remedy  but  an  action  for  the  frauds 
must  seek  his  remedy  against  the  directors  personally."  It  is  obvious 
that  the  doctrine  embodied  in  this  decision,  which  is  of  so  great 
weight  as  to  be  almost  entitled  to  stand  as  authoritative  in  this  court,, 
if  applied  to  the  present  case  will  have  the  effect  of  taking  from  the 
plaintiff's  suit  so  far  as  it  relates  to  Mr.  McKay,  every  semblance  of 
a  foundation.  By  bringing  his  action  in  its  present  form  the  plaintiff 
has  given  up  all  idea  of  a  rescission  of  the  contract  of  sale,  and  the 
consequence  is  that,  acording  to  the  doctrine  of  the  cases  cited,  he 
must  connect  this  last-named  defendant  with  the  fraud  by  which 
the  sale  was  effected,  if  he  would  obtain  a  judgment  against  him. 
But  in  this  he  has  altogether  failed. 
The  rule  should  be  made  absolute.^ 


MATTESON  v.  RICE. 
1903.     Supreme  Court  of  Wisconsin.     116  Wis.  328. 

Appeal  from  a  judgment  of  the  superior  court  of  Milwaukee 
county:  J.  C.  Ludwig,  Judge.    Reversed. 

This  in  an  action  to  recover  damages  suffered  by  plaintiff  by  rea- 
son of  the  alleged  false  and  fraudulent  representations  of  defend- 
ant's agent.  The  complaint  sets  out  the  facts  substantially  as  herein- 
after stated,  and  alleges  that  the  representations  made  by  the  agent 
were  made  fraudulently,  and  for  the  purpose  of  inducing  plaintiff  to 
rent  said  flat.  The  case  was  tried  before  a  referee,  who  made  find- 
ings as  follows: 

"(i)  That  in  1897  ^^^  plaintiff  leased  a  flat  contained  in  a 
building  belonging  to  the  defendant,  at  or  near  the  corner  of  Eigh- 
teenth street  and  Fond  du  Lac  avenue,  in  the  city  of  Milwaukee,  and 
occupied  the  same  as  a  tenant  of  the  defendant  under  and  pursuant 

^Accord:   Keefe  v.  Sholl,  181  Pa.  St.  90. 


244  LIABILITY   TO   THIRD   PERSONS. 

to  said  lease  until  the  building,  including  said  flat,  was  destroyed  by 
fire,  in  December,  1898,  at  which  time  all  of  the  plaintiff's  property 
contained  in  said  flat  was  destroyed. 

"(2)  That  plaintiff  made  his  contract  or  lease  with  one  August 
Klempke,  who  was  at  that  time  the  janitor  of  the  said  flat  building, 
and  employed  by  the  defendant,  and  that  the  entire  business  of  leas- 
ing said  flat  to  the  plaintiff,  on  the  part  of  the  said  defendant,  was 
attended  to  and  conducted  by  the  said  August  Klempke. 

"(3)  That  it  was  a  part  of  Klempke's  duties  as  an  employee  of 
the  defendant  to  show  the  flats  in  the  said  building  to  prospective 
tenants,  to  tell  them  the  amount  of  rent  charged  for  such  flats,  and, 
in  case  of  acceptance  by  such  prospective  tenants  of  the  terms 
offered,  to  put  them  into  possession,  collect  the  first  month's  rent, 
and  pay  it  over  to  the  defendant;  the  subsequent  rent  being  paid 
to  or  collected  by  the  defendant's  book-keeper. 

"(4)  Adjoining  the  said  flat  occupied  by  the  plaintiff,  and  a  part 
of  the  same  building,  was  a  store,  also  owned  by  the  defendant.  At 
the  time  the  plaintiff  rented  said  flat,  he  asked  Klempke  how  it  would 
be  in  case  there  should  be  a  fire  in  said  store ;  and  said  Klempke  told 
him  (plaintiff)  that  there  was  a  fireproof  wall  between  the  said  store 
and  the  flat  about  to  be  rented,  and  which  was  afterwards  rented,  by 
said  plaintiff  as  aforesaid. 

"(5)  That  the  plaintiff  relied  upon  said  statement  to  the  effect 
that  there  was  a  fireproof  wall  between  said  store  and  said  flat,  and 
believed  the  same  to  be  true,  and  that  he  would  not  have  rented  the 
said  flat,  or  continued  to  occupy  the  same,  except  for  said  state- 
ment, and  except  for  his  belief,  induced  by  said  statement,  that  there 
was  a  fireproof  wall  between  said  flat  and  said  store. 

"(6)  That  the  partition  wall  between  the  said  store  and  the  said 
flat  was  not  a  fireproof  wall,  and  was  not  a  wall  which  could  be  con- 
sidered a  fireproof  wall  or  a  firewall,  in  any  sense  in  which  such 
term  or  terms  could  reasonably  be  understood,  but  consisted  of  a 
single  thickness  of  brick,  between  upright  wooden  supports. 

"(7)  That  said  Klempke  had  no  intention  of  defrauding  the 
plaintiff  in  making  said  statement  as  aforesaid,  but  believed  the  said 
statement  to  be  true. 

"(8)  That  said  partition  or  wall  between  the  said  store  and 
said  flat  was  covered  with  plaster  on  both  sides,  and  the  true  charac- 
ter thereof  was  not  open  to  examination  or  inspection  by  the  plaintiff. 

"(9)  That  had  there  been  a  firewall  or  a  fireproof  wall  between 
said  store  and  said  flat,  as  was  represented  by  said  Klempke,  the 
said  fire  probably  could  and  would  have  been  confined  to  the  store 
building,  and  in  that  case  the  plaintiff's  property  contained  in  said 
flat  would  not  have  been  destroyed. 

"(10)  That  said  Klempke  was  not  expressly  authorized  or  in- 
structed by  the  defendant  or  anyone  else  to  make  any  warranties 
or  representations  in  regard  to  the  said  building,  or  as  to  the  con- 


-4.-) 

art  thereof,  and 
...  ...v.cnce  to  the  chaxa;....  ^. 

fendant  until  after  said  fire  had  oc 
me  referee's  conclusions  were  that  it 
"f  the  atithority  of  Klempke   as  defendant 
■n  or  \v 
that  ti'. 
•  ..on  of  such  representations.     :  iie- 

iviidant,    A  motion  to-ino('^^  -.  '  :<- 

port  was  confirmed  by  ti 
ct^kd  and  the  case  is  br 
li    n  the  pleadings  and  li: 

::.N,  J. — An  '-  at  ^I'-o 

•it  defendant  ^  false  rt; 

•  tne  character  ot  »  ig.     The  pi 

'.on.    From  the  chani  i.ng,  it  was  i: 

,        tiff  to  ascertain  the  truth  of  such  representatic 
i:!v;  fact  represented  was  not  true,  plaintiff  suffered  lo.. .     .  , 

mtt  acent  had  authority  to  show  the  flats,  make  leases,  put  tenanis 

'^ion,  and  collect  the  first  month's  rent.    He  had  no  express 

to  make  any  "warranties  or  representations"  in  regard  to 

ion  of  ''  'ng,  and  he  had  no  intention  of  de- 

iiff,  and  i  the  statement  he  made  to  be  ■'rue. 

-L  be  understood  at  the  outset  that  we  are 

I  ■  i  ion  of  the  authority  of  an  agent  to  make  -.. .. 

A  warranty,  if  false,  gives  rise  to  an  action  on 
'    '■  •     -  If  we  •-■"■■■  '-  ■  '  *'  -    ^omplaint   ^h 

,  '.pes  he-  false  re 


upcny  arc  or  sh^iU  be  as  he  icpreseri' 
f  T.^w,  728.    The  same  authority,  l 
arranty'  and  'representation'  ; 
■  yi:\iiii^_^   .  .   ;  vvays  a  representation,  but  the 
'iv  true,  the  lirst  bi'iu^'-  a  moi-e  comorehensi' 


.'esturn   . 
must  arise  from  express  authoritv,  or  proof 
'^^nally  attended  v\n»i^  ^■'^'-^'nty.     O^--     '^''' ' 
here  the  agent  i  no  auti 

racter  of  his 
■  rppresentai 
"?  And  incou 
:'  conrt:^.  r^n; 


244 

ti>  said  lease  until  th  aid  fiat,  was  destroyed  by 

fire,  in  Dect  oi  the  plaintiff's  property 
contained  in 

'''2)    Th.  act  or  lease  with  one  August 


icntiaat,  vvat- 

^  an  employee  of 
the  ...  _i...       .;_.!ig  to  prospective 

ten;  f  rent  charged  for  such  flats,  and, 

'■  ;in-'n-ctive  tenants  of  the  terms 

•       '.  •  .  'cct  the  first  month's  rent, 
.-.ent  rent  being  paid 

intfflF,  and  a  part 

c  defendant.    At 

•  oicc  how  it  would 

aid  Klempke  tcld 

-  .en  the  said  store 

^  ( ■  auerwards  rented,  b> 

>ent  to  the  ef'     ' 
md  said  fiat,  ,.< 
I  hat  he  would  not  have  rented  the 
vl'f  same,  except  for  said  state 
1  by  said  statement,  that  there 
ij(  Hnd  said  store, 
etween  the  said  store  and  the  saic' 
!Ot  a  wall  which  could  l>e  i.   • 
,  in  any  sense  in  which  r: 
•<„•  understood,  but  consisted  of  n 
T.'rliyht  wooden  supports. 

'  intention  of  defrauding  the 
'rr-c?;ri   but  believed  *'^^-  ^^' 

.   the  said  store 
and  the  true  cha 
C'i-  inspection  by  the  ; 
:    .ir  a  fireproof  wall 
■c.d  by  said  Klempke, 
een  confined  to  the  sloie 
and  in  roperty  contained  in  said 

''(10)  iressly  authorized  or 

•  any  wp 

■r  as  to  t 


TORTS.  245 

struction  of  any  part  thereof,  and  that  the  statements  made  by  said 
Klempke  in  reference  to  the  character  of  said  wall  were  not  known 
to  the  defendant  until  after  said  fire  had  occurred." 

The  referee's  conclusions  were  that  it  was  not  within  the  scope 
of  the  authority  of  Klempke,  as  defendant's  agent,  to  make  any  rep- 
resentation or  warranties  respecting  the  construction  of  the  build- 
ing, and  that  there  was  no  liability  on  the  part  of  defendant  by 
reason  of  such  representations.  Judgment  was  ordered  for  the  de- 
fendant. A  motion  to  modify  such  findings  was  denied,  and  the  re- 
port was  confirmed  by  the  trial  court.  No  bill  of  exceptions  was 
settled  and  the  case  is  brought  here  for  review  on  plaintiff's  appeal 
upon  the  pleadings  and  findings. 

Bardeen,  J. — An  inspection  of  the  complaint  and  findings  dis- 
closes that  defendant's  agent,  Klempke,  made  false  representations 
as  to  the  character  of  defendant's  building.  The  plaintiff  relied 
thereon.  From  the  character  of  the  building,  it  was  impossible  for 
plaintiff  to  ascertain  the  truth  of  such  representations.  Because 
the  fact  represented  was  not  true,  plaintiff  suffered  loss.  Defend- 
ant's agent  had  authority  to  show  the  flats,  make  leases,  put  tenants 
in  possession,  and  collect  the  first  month's  rent.  He  had  no  express 
authority  to  make  any  "warranties  or  representations"  in  regard  to 
the  construction  of  the  building,  and  he  had  no  intention  of  de- 
ceiving plaintiff,  and  believed  the  statement  he  made  to  be  true. 

It  must  be  understood  at  the  outset  that  we  are  not  dealing  with 
the  question  of  the  authority  of  an  agent  to  make  warranties  for  his 
principal.  A  warranty,  if  false,  gives  rise  to  an  action  on  contract. 
That  is  not  this  case.  If  we  understand  the  complaint,  the  plaintiff 
sues  to  recover  damages  because  of  certain  false  representations 
made  by  the  defendant's  agent.  A  warranty  is  a  collateral  under- 
taking iDy  which  the  warrantor  contracts  that  certain  facts  in  rela- 
tion to  the  property  are  or  shall  be  as  he  represents  them.  28  Am. 
&  Eng.  Ency.  of  Law,  728.    The  same  authority,  on  page  739,  says : 

"The  terms  'warranty'  and  'representation'  are  not  synonymous. 
A  warranty  is  always  a  representation,  but  the  reverse  is  not  neces- 
sarily true,  the  first  being  a  more  comprehensive  term." 

This  case  seems  to  have  become  divested  of  any  element  of  con- 
tract, and  turns  upon  the  question  whether  the  representations  made 
by  Klempke  were  within  the  apparent  scope  of  his  employment.  An 
agent's  authority  to  warrant,  as  said  in  Westurn  v.  Page,  94  Wis. 
251,  68  N.  W.  1003,  must  arise  from  express  authority,  or  proof 
that  the  transaction  is  usually  attended  with  warranty.  Cases  may 
and  frequently  do  arise  where  the  agent  may  have  no  authority  to 
warrant,  and  yet,  from  the  character  of  his  agency,  his  principal  may 
be  held  liable  in  tort  for  false  representations  made  by  him.  This 
distinction  may  seem  somewhat  fine  and  inconsistent,  yet  it  is  never- 
theless one  amply  recognized  by  the  courts,  and  frequently  enforced. 
It  arises  from  the  character  and  duty  of  the  agent  in  relation  to  the 


246  LIABILITY   TO   THIRD    PERSONS. 

particular  business  in  his  charge.  The  g^eneral  HabiHty  of  the  princi- 
pal is  as  stated  in  the  late  case  of  Hoyer  v.  Ludington,  100  Wis.  441, 
76  N.  W.  348,  where  the  following  language  was  used : 

"There  is  no  doubt  of  the  general  proposition  that  if  an  agent 
is  employed  to  effect  the  sale  of  lands  for  his  principal,  and  he  does 
so  by  means  of  false  representations  in  respect  to  the  land  conveyed, 
even  without  the  authority  or  knowledge  of  his  principal,  the  latter 
is  chargeable  with  such  fraud  in  the  same  manner  as  if  he  had 
known  or  authorized  the  same.  Law  v.  Grant,  37  Wis.  548 ;  McKin- 
non  V.  VoUmar,  75  Wis.  82,  43  N.  W.  800;  Gunther  v.  Ulrich,  82 
Wis.  222,  52  N.  W.  88.  And  this  is  especially  so  when  the  principal 
accepts  and  enjoys  the  benefits  of  the  purchase.  Fintel  v.  Cook,  88 
Wis.  487,  60  N.  W.  788.  But  even  then  'the  representation  which  is 
to  bind  the  principal  must  be  made  in  reference  to  the  subject-matter 
of  his  agency ;  it  must  be  made  while  the  agent  is  acting  as  such ; 
and  the  making  of  such  representation  must  be  within  the  apparent 
scope  of  his  authority.'    Mechem,  Ag.  §  743." 

In  Law  V.  Grant,  37  Wis.  548,  the  rule  in  such  cases  was  stated 
with  great  strictness.    It  was  there  said : 

"If  the  agent  effected  it  [the  sale]  by  means  of  false  representa- 
tions or  fraud  of  any  other  description,  although  without  authority 
from  the  plaintiff  to  do  so,  and  although  the  plaintiff  was  entirely 
ignorant  that  he  had  done  so,  the  legal  status  of  the  plaintiff  is  pre- 
cisely the  same  as  it  would  have  been  had  he  made  the  false  repre- 
sentations, or  committed  the  fraudulent  act  to  the  same  end,  in 
person." 

It  seems  to  have  been  assumed  that  the  acts  done  or  representa- 
tions made  in  that  case  were  within  the  apparent  scope  of  the 
agent's  authority.  The  agent  represented  that  valuable  minerals  had 
been  found  on  the  land.  If  the  principal  was  bound  by  such  repre- 
sentations, it  is  not  difficult  to  see  in  this  case  that  defendant  was 
responsible  for  the  representations  as  to  the  firewall.  The  repre- 
sentation of  the  existence  of  such  wall  was  one  of  the  inducements 
that  led  the  plaintiff  to  make  the  lease  he  did.  In  the  one  case  the 
representation  of  a  mineral  discovery  induced  the  sale,  and  in  the 
other  the  representation  of  the  existence  of  a  firewall  induced  the 
lease.  The  one  seems  to  have  been  as  much  within  the  scope  of 
the  agent's  employment  as  the  other.  The  representation  as  to  the 
existence  of  the  firewall  referred  to  the  safety  and  condition  of  the 
premises.  If  it  existed,  the  fact  was  an  inducement  to  plaintiff  to 
make  the  lease  he  did.  Suppose  plaintiff  had  asked  the  agent 
whether  the  roof  leaked  or  the  plumbing  was  in  good  condition ; 
would  not  the  agent  have  had  implied  authority,  from  the  fact  that 
he  stood  representing  the  owner,  to  have  made  answer  to  such 
questions?  The  difficulty  experienced  in  cases  of  this  kind  is  as  to 
the  proper  understanding  of  the  phrase  "within  the  scope  of  his 
agency."     It  cannot  properly  be  restricted  to  what  the  parties  in- 


i.Lf  n:    -^n     1 1  i- 


authority  intended  l. 
,  ^ome  of  the  c,  :  tiie 

make  the  repre-  ■[.  and 

y  to-trr' 
ct  was  0 

ipal,  it  might  be  « 
.iwiaating  in  fraud  v  ....-  uj. 

ted  by  the  connectioi;  ct  with  t 

■'-■-  --"icy,  we  find  o  nnectior; 

;at  the  act  w;  .  virtue 

i;  the  particii' 
•  ipe  of  the  '.: 

ach  acts  and  things  as  are  dircciiy  connt: 
r»  the  business  in  hand.     He  may  not  a.    . 
•ay  do,  but  where  the  matter  in  controvers 
■  L.    and  becomes  a  necessary  part  of  the  transav  i 
ration,  and  an  inducement  to  the  acceptance  of  tv 
.  whom  the  representations  are  made,  then  we 
■'within  the  scope  of  ^ib'^  agency."     If  the  pri:, 

g  his  bi  ith  a  view  of  leasing,  inq 

of  fire,  ition  of  plumbing,  and  the 

—  lessee,  would  have  been  perfectly  natural  and  in  accordance 

iinary  business  foresight.    Any  false  answer  material  to  such 

%  and  afffecting  the  proposed  tenancy,  would  have  made  tho 

.1  liable.     Substitute  the  agent  with  authority  to  lease;  how 

situation   changed  ?      The    considerations  mentioned    vvere 


I  made.  would  , not 

::l  -  l  the  agent  .  .  .  /er  to  make 
'  answer  such  questions  regarding  th 
the  building  as  v.-    •■  "  pvident  to  tli 


iut.     Such  autho'.  from  the  r; 


i^es  are 

497-    '^'' 

:  \   1  >'.jr    C'"if"    ^V  ' 

■^2,  43  : 

ns  were  ma^ 

■'    -   h,  82  Wis.  2A. 

•-  0^ 

,  ^i-'- 

statement  as 

<  to 

th:. 

s  induced  to  ; 

pui 

■^.wAi    n''<rtM' 

!"e  - 

246 

particular  busines; 


IS  no  L. 
cd  to  eftv 
so  bv  means  of  fa 
even  without  tlie 
is  chargeable, 
known  or  auti 
non  V.  Voiln);   . 


Ol    i}^ 


leut. 


iliC    I  C{- 

TV."  '. 


ije  root 


|.[Uc^LU,'^l^  . 

tlie  pror.rr 


m  res] 
ledge  G 
the  same 


cannot 


ral  liability  of  the  princi- 
.  i..vUdington,  loo  Wis.  441, 
laee  was  used ; 

if  an  agent 

;nd  he  does 

I  conveyed, 

,  -ii,  the  latter 

manner  as  if  he  had 

■  -  '■'•■"    ^>7Wis.  548;McKin- 

unther  v.  Ulrich,  82 

>  when  the  principal 

•  Fintel  v.  Cook,  88 

^ntation  which  is 

!e  subject-matter 

'  e  while  the  agent  is  acting  as  such ; 

cntation  must  be  within  the  apparent 

-n,  Ag.  §  743." 

48,  the  rule  in  such  cases  was  stated 
lere  said: 

le]  by  means  of  false  representa- 
.tioii,  although  without  authority 
.d  aithov  iaintiff  was  entirely 

he  lega:  .  .  ,.  :  the  plaintiff  is  pre- 
•e  been  had  he  made  the  false  repre- 
fraudulent  a      '      'he  same  end,  in 

'  '    '^     the  acib  aoue  or  representa- 

the  apparent  scope  of  the 

d  that  valuable  minerals  had 

,:il  was  bound  by  such  repre- 

in  this  case  that  defendant  was 

^  as  to  the  firewall.     The  repre- 

wall  was  one  of  the  inducements 

:ase  he  did.    In  the  one  case  the 

-^rv  induced  the  sale,  and  in  the 

ce  of  a  firewall  induced  the 

s  much  within  the  scope  of 

r.    The  representation  as  to  the 

•  the  safety  and  condition  of  the 

an  inducement  to  plaintiff  to 

lintiff  had   asked  the  agent 

■ing  was  in  good  condition ; 

authority,  from  the  fact  th  '. 

^lave  made  answer  to  s..>  .; 

.    of  this  kind  is  as  to 

iiiii  the  scope  of  his 

.ted  to  what  the  parties  in- 


TORTS.  247 

tended  in  the  creation  of  the  agency.  Nor  can  the  question  be  de- 
termined by  the  authority  intended  to  be  conferred  by  the  principal. 
As  stated  in  some  of  the  cases,  we  must  distinguish  between  the 
authority  to  make  the  representations  which  amount  to  a  fraud,  and 
the  authority  to  transact  the  business  in  the  course  of  which  the 
fraudulent  act  was  committed.  Tested  by  reference  to  the  intention 
of  the  principal,  it  might  be  conceded  that  the  making  of  representa- 
tions culminating  in  fraud  was  not  within  the  scope  of  the  agency ; 
but,  tested  by  the  connection  of  the  act  with  the  property  and  busi- 
ness of  the  agency,  we  find  a  direct  connection  between  such  act  and 
business,  and  that  the  act  was  done  by  virtue  of  the  authority  of  the 
agent  in  the  particular  matter.  See  Reynolds  v.  Witte,  13  S.  C.  5. 
The  scope  of  the  agent's  authority  reaches  out,  and  permits  him 
to  do  such  acts  and  things  as  are  directly  connected  with  and  es- 
sential to  the  business  in  hand.  He  may  not  do  everything  his 
principal  may  do,  but  where  the  matter  in  controversy  directly  ap- 
pertains to  and  becomes  a  necessary  part  of  the  transaction  under 
consideration,  and  an  inducement  to  the  acceptance  of  the  deal  by 
the  party  to  whom  the  representations  are  made,  then  we  may  say 
that  it  falls  "within  the  scope  of  the  agency."  If  the  principal  had 
been  present,  showing  his  building,  with  a  view  of  leasing,  inquiries 
regarding  the  danger  of  fire,  the  condition  of  plumbing,  and  the  like, 
from  the  lessee,  would  have  been  perfectly  natural  and  in  accordance 
with  ordinary  business  foresight.  Any  false  answer  material  to  such 
inquiries,  and  affecting  the  proposed  tenancy,  would  have  made  the 
principal  liable.  Substitute  the  agent  with  authority  to  lease ;  how 
is  the  situation  changed?  The  considerations  mentioned  were 
germane  to  the  transaction.  They  operated  as  an  inducement  to  the 
making  of  the  lease,  and  the  referee  has  found  that,  if  the  represen- 
tations had  not  been  made,  the  lease  would  not  have  been  entered 
into.  The  fact  that  the  agent  had  power  to  make  the  lease  gave  him 
authority  to  answer  such  questions  regarding  the  nature  and  con- 
struction of  the  building  as  were  not  evident  to  the  senses  of  a  pros- 
pective tenant.  Such  authority  arises  from  the  nature  of  the  trans- 
action and  the  enforced  reliance  of  the  tenant  upon  the  agent's 
answers.  The  fact  that  the  agent  believed  such  representations  to 
be  true,  and  had  no  intention  to  deceive  the  tenant,  does  not  lessen 
defendant's  liability.  That  question  was  settled  early  in  the  history 
of  the  jurisprudence  of  this  state,  and  some  of  the  cases  are  men- 
tioned in  Davis  v.  Nuzum,  72  Wis.  439,  40  N.  W.  497.  The  sub- 
ject is  discussed  in  McKinnon  v.  Vollmar,  75  Wis.  82,  43  N.  W.  800, 
where  a  sub-agent  pointed  out  the  wrong  land  to  the  purchaser,  and 
where  false  representations  were  made  as  to  the  amount  of  timber 
thereon.  In  Gunther  v.  Ulrich,  82  Wis.  222,  52,  N.  W.  88,  the  agent 
of  the  vendors  made  a  false  statement  as  to  the  location  of  their 
lots,  whereby  the  vendee  was  induced  to  purchase  the  same.  The 
vendors  were  held  liable  for  such  misrepresentation  by  the  agent. 


248  LIABILITY   TO   THIRD   PERSONS. 

whether  intentional  or  not.  If  an  ag'ent  to  sell  has  authority  to 
point  out  the  location  of  the  land  he  desires  to  sell,  it  is  difficult  to 
see  why  an  agent  to  lease  has  not  authority  to  describe  the  building 
and  its  surroundings  which  he  desires  to  lease.  See  Porter  v.  Beat- 
tie,  88  Wis,  22,  59  N.  W.  499;  Beetle  v.  Anderson,  98  Wis.  5,  73 
N.  W.  560;  Krause  v.  Busacker,  105  Wis.  350,  81  N.  W.  406;  Hart 
V.  Moulton,  104  Wis.  349-359,  80  N.  W.  599.  As  already  suggested, 
such  authority  seems  to  fall  naturally  from  the  relation  of  the  parties, 
the  nature  of  the  business  intrusted  to  the  agent,  and  the  circum- 
stances found  by  the  referee. 

In  this  view,  the  conclusions  of  the  referee  and  the  trial  court  were 
erroneous  and  the  judgment  must  be  reversed.  There  being  no  bill 
of  exceptions,  and  no  finding  as  to  the  amount  of  the  plaintiff's  loss,, 
the  court  below  is  directed,  if  necessary,  to  take  further  testimony 
upon  the  subject,  to  determine  the  amount  of  such  loss,  and  to  enter 
judgment  therefor  for  the  plaintiff. 

By  the  court. — So  ordered. 


FRIEDLANDER  v.  TEXAS  AND  PACIFIC  RAILWAY  COM- 
PANY. 

1888.     Supreme  Court  of  the  United  States.     130  U.  S.  416. 

Friedlander  &  Co.  brought  suit  in  the  district  court  of  Texas,  in 
and  for  the  county  of  Galveston,  against  the  Texas  and  Pacific  Rail- 
way Company,  to  recover  for  the  non-delivery  of  certain  cotton 
named  in  an  alleged  bill  of  lading  hereinafter  described,  of  which 
they  claimed  to  be  assignees  for  value,  their  petition  after  counting 
upon  said  bill  of  lading,  thus  continuing: 

"That  the  said  defendant,  fraudulently  contriving  to  avoid  its 
liability  to  these  plaintiffs,  pretends  and  alleges  that  the  said  cotton 
was  not  so  delivered  as  in  and  by  said  bill  of  lading  is  recited  and 
acknowledged,  but  that  the  said  bill  of  lading  was  executed  without 
the  receipt  by  its  said  agent  of  any  of  said  cotton,  all  of  which  said 
pretences  on  the  part  of  the  defendant,  plaintiffs  allege  are  untrue ; 
but  they  say  that  even  if  it  be  true  that  no  cotton  was  delivered  to 
said  defendant  as  in  and  by  said  bill  of  lading  is  recited  and  ac- 
knowledged, yet  is  the  defendant  estopped  from  setting  up  that  fact 
in  defence  of  plaintiff's  cause  of  action  upon  said  bill  of  lading,  be- 
cause these  plaintiffs  say  that  the  said  bill  of  lading  was  executed  in 
form  negotiable  and  transferable  by  indorsement  under  the  usage 
and  customs  of  merchants,  and  that  these  plaintiffs,  relying  upon  the 
validity  of  said  bill  of  lading  in  all  respects  and  upon  the  facts 
therein  stated,  that  said  cotton  had  been  delivered  to  said  defendant. 


rder  and  at 
....  .-cud  bill  of  !-'^' 
dollars  on,  to  \\. 


ns 


ii  nieiitioncu  as  ;. 
eived  by  defenda^ 
said  bill  of  lading-  tor  i 
>!  payment,  with  inter; 
:he  fraud  practisf  ■ 
;ancc  of  said  bill 
-in  he  was  auth'. 
•  -:  .I'ped   to 
of  the 
to  comply  '• 


'  that  u 
I   it  to  b. 
iiificatii.-. 
■  from  tiv-.    . 
agent  upon 
m  the  ordinarj'  h.". 
the  defendant  to  Z' 
•  m  was    ' 
ages  on  . 
>aid  bill  of  lading  to  tht. 
dollars,  with  interest  thereon,  at  the  rat . 
per  annum,  from  the  date  of  payment  thereof  as  afore- 
if  it  be  true,  as  alleged,  that  defendant  receive  said  cotton 
;i  of  lading  mentioned,  then  plaintiffs  claim  of  defendant 
;ilue  thereof,  to  wit,  the  sum  of  fifteen  thousand  dollars, 
est  thereon  from  and  after  the  6th  day  of  December,  1883, 
before  which  time  deter  uld  have  delivered  said 

!er  said  bill  of  ladiiT^:.  to  the  true  intent  and 

■lereof." 

■if  demurred,  and  al.^ ^  ..  denying  "all  3n.' 

ions  in  the  petition  contained."    The  case 
ed  to  the  Circuit  '■■■—   if  the  United  ^"' 
■  ict    of    Texas.    •  1    bv    leave 


station. 

.ant's  lin 

he  was  auth. 

receive  . 

•^  and  to  e.XL. ... 

,■  .^t'  1..,  . 

m  received  1 

id  6th  dav  of  November,  jf^^ 


ait,  whereby  he 

I  the  said  Joseph  ......... 

t  good  order,  to  be  tn 
'  "  .  and  did  dc--  -      "'- 
Iinsfein;  an' 
■e  saia  L.  ;ig  was  execu:.c.. 


■la 
i>y 

i-i  Easton, 
raudu- 


:-aslua 


see  why  an  agent  h 
and  its  surroundin 
tie,  88  Wis,  22,  5<,> 
N.  W.  560;  Krn- 
■v .  Moulton,  10  . 
such  authority  -^ 
the  nature  of  ' 
stances  for 
In  thi^  •. 
erronc 
of  exc 
the  CO 
up   : 

i  U  :  ■ 


:■  sell  has  authority  to 

to  sdl,  it  is  difficult  to 

.ty  to  d  '■ft  building 

lease.    : ler  v.  Beat- 

V.  .Anderson,  98  Wis.  5,  73 

vv  iS.  350,  81  N.  W.  406;  Hart 

VV,  599.  As  already  suggested, 

from  the  relation  of  the  parties, 

!  to  the  agent,  and  the  circum- 

::  referee  and  the  trial  court  were 

>c  reversed.    There  being  no  bill 

the  amount  of  the  plaintiff's  loss, 

ecessary,  to  take  further  testimony 

'.t;  amount  of  such  loss,  and  to  enter 


ND  PACIFIC  RAILWAY  COM- 


SiJpR^' 


(■:  United  S  < 


30  U.  S.  416 


uamcJ 
they  ciai'] 
upon  said 


by  its 


CLl 


form  negotiable  and 
and  customs  of 'mer'^^^ 
validit)   of  said  bi 
therein  stated,  that  sa 


-.lit  in  the  district  court  of  Texas,  in 
linst  the  Texas  and  Pacific  Rail- 
non-delivery  of  certain  cotton 
hereinafter,  described,  of  which 
!'ie,  their  petition  after  counting 
uing: 

alently  contriving  to  avoid  its 

and  alleges  that  the  said  cotton 

lid  bill  of  lading  is  recited  and 

of  lading  was  executed  without 

'f  said  cotton,  all  of  which  said 

\  plaintiffs  allege  are  untrue; 

'  no  cotton  was  delivered  to- 

f  lading  is  recited  and  ac- 

d  from  setting  up  that  fact 

:pon  said  bill  of  lading,  be- 

'■}  of  lading  was  executed  in 

orsement  under  the  usage 

'lointiffs,  relying  upon  the 

:ts  and  upon  the  facts 

vered  to  said  defendar^ 


TORTS.  249 

as  aforesaid,  and  that  defendant  had  contracted  to  carry  and  deliver 
said  cotton  as  aforesaid,  advanced  to  the  said  Joseph  Lahnstein  and 
paid  out  upon  his  order  and  at  his  request  and  in  consideration  of  his 
said  transfer  of  said  bill  of  lading  to  these  plaintiffs  the  sum  of  eight 
thousand  dollars  on,  to  wit,  the  loth  day  of  November,  1883,  and 
that  said  payment  was  made  and  advanced  upon  the  faith  of  the  re- 
citals and  effect  of  said  bill  of  lading  as  a  contract  to  deliver  the  cot- 
ton therein  mentioned  as  aforesaid,  and  that  if  the  said  cotton  was 
never  received  by  defendant,  yet  ought  it  to  be  held  to  the  terms 
of  the  said  bill  of  lading  for  the  indemnification  of  these  plaintiffs 
for  said  payment,  with  interest  thereon  from  the  date  thereof,  be- 
cause of  the  fraud  practised  by  the  said  agent  upon  these  plaintiffs 
in  the  issuance  of  said  bill  of  lading  in  the  ordinary  form  and  man- 
ner wherein  he  was  authorized  by  the  defendant  to  act,  and  de- 
fendants are  estopped  to  deny  that  said  cotton  was  received  as 
against  the  claims  of  these  plaintiffs  for  damages  on  account  of 
defendant's  failure  to  comply  with  said  bill  of  lading  to  the  extent 
of  eight  thousand  dollars,  with  interest  thereon,  at  the  rate  of  8 
per  cent,  per  annum,  from  the  date  of  payment  thereof  as  afore- 
said ;  and  if  it  be  true,  as  alleged,  that  defendant  receive  said  cotton 
in  said  bill  of  lading  mentioned,  then  plaintiffs  claim  of  defendant 
the  full  value  thereof,  to  wit,  the  sum  of  fifteen  thousand  dollars, 
with  interest  thereon  from  and  after  the  6th  day  of  December,  1883, 
when  and  before  which  time  defendant  should  have  delivered  said 
cotton  under  said  bill  of  lading,  according  to  the  true  intent  and 
meaning  thereof." 

Defendant  demurred,  and  also  answered,  denying  "all  and  singu- 
lar the  allegations  in  the  petition  contained."  The  case  was  subse- 
quently removed  to  the  Circuit  Court  of  the  United  States  for  the 
Eastern  District  of  Texas,  whereupon  by  leave  the  defendant 
amended  its  answer  by  adding  these  further  averments : 

"That  one  E.  D.  Easton,  on  the  6th  of  November,  1883,  was  the 
station  agent  of  defendant  at  Sherman  station,  in  Grayson  county, 
Texas,  on  the  eastern  division  of  defendant's  line  in  Texas,  and  that 
as  such  agent  he  was  authorized  to  receive  cotton  and  other  freight 
for  transportation  and  to  execute  bills  of  lading  for  such  cotton  and 
other  freight  by  him  received  for  the  purpose  of  transportation  by 
defendant. 

"That  on  the  said  6th  day  of  November,  1883,  the  said  Easton, 
combining  and  confederating  with  one  Joseph  Lahnstein,  did  fraudu- 
lently and  collusively  sign  a  certain  bill  of  lading  purporting  to  be 
his  act  as  agent  of  defendant,  whereby  he  falsely  represented  that 
defendant  had  received  from  the  said  Joseph  Lahnstein  two  hundred 
bales  of  cotton  in  apparent  good  order,  to  be  transported  from 
Sherman  to  New  Orleans,  La.,  and  did  deliver  the  said  false  bill 
of  lading  to  the  said  Joseph  Lahnstein;  and  defendant  says  that  in 
point  of  fact  the  said  bill  of  lading  was  executed  by  the  said  Easton 


250  LIABILITY   TO   THIRD    PERSONS. 

fraudulently  and  collusively  with  the  said  Lahnstein  without  receiv- 
ing any  cotton  for  transportation,  such  as  was  represented  in  said 
bill  of  lading,  and  without  the  expectation  on  the  part  of  the  said 
Easton  of  receiving  any  such  cotton ;  that  the  said  pretended  bill 
of  lading  was  the  one  that  is  set  out  in  the  petition  of  the  plaintiffs, 
and  was  false,  fraudulent  and  fictitious,  and  was  not  executed  by  de- 
fendant nor  by  its  authority,  and  that  the  said  Easton  only  had 
authority  as  agent  aforesaid  to  execute  and  deliver  bills  of  lading 
for  freights  actually  received  by  him  for  transportation," 

The  cause  was  submitted  to  the  court  for  trial,  a  jury  being 
waived,  upon  the  following  agreed  statement  of  facts : 

"ist.  On  November  16,  1883,  at  Sherman  station,  in  Grayson 
county,  Texas,  on  the  eastern  division  of  the  Texas  and  Pacific  Rail- 
way Company,  E.  D.  Easton,  agent  for  the  defendant  at  said  sta- 
tion, executed  as  such  agent  a  bill  of  lading,  of  which  a  copy  is 
hereinafter  given,  and  delivered  the  same  to  Joseph  Lahnstein,  the 
person  named  in  said  bill  of  lading. 

"2nd.  That  said  Easton  was  at  the  time  and  place  aforesaid 
the  regularly  authorized  agent  of  the  defendant  for  the  purpose  of 
receiving  for  shipment  cotton  and  other  freight  for  transportation 
by  defendant  over  and  along  its  line  from  Sherman  station  afore- 
said, and  that  said  bill  of  lading  was  in  the  usual  form  and  made 
out  upon  the  usual  printed  blanks  in  use  by  said  defendant  at  said 
station,  and  that  said  Easton  was  authorized  by  said  defendant  to 
execute  bills  of  lading  for  cotton  and  other  freight  by  him  received 
for  the  purpose  of  transportation  by  the  defendant. 

"3d.  That  the  said  Joseph  Lahnstein  indorsed  said  bill  of  lading 
by  writing  his  name  across  the  back  thereof  and  drew  a  draft  on 
the  plaintiffs  in  this  cause  on  or  about  November  6,  1883  (of  which 
draft  a  copy  is  hereinafter  given),  for  the  sum  of  eight  thousand 
dollars,  payable  at  sight  to  the  order  of  Oliver  &  Griggs,  and  at- 
tached said  draft  to  said  bill  of  lading  so  indorsed,  and  on  or  about 
November  6,  1883,  forwarded  the  same  through  said  Oliver  & 
Griggs  for  presentation  to  and  payment  by  the  plaintiffs  in  this 
cause;  that  in  due  course  of  business  Oliver  &  Griggs  forwarded 
said  draft,  with  bill  of  lading  attached,  to  New  Orleans,  where  the 
same  was  presented  to  and  paid  bv  plaintiffs  on  or  about  November 
10,  1883. 

"4th.  That  in  paying  said  draft  said  plaintiffs  acted  in  good 
faith  and  in  the  usual  course  of  their  business  as  commission  mer- 
chants making  advances  upon  shipments  of  cotton  to  them  for  sale, 
and  without  any  knowledge  of  any  fraud  or  misrepresentation  con- 
nected with  said  bill  of  lading  and  draft,  and  with  the  full  and  hon- 
est belief  that  said  bill  of  lading  and  draft  were  honestly  and  in 
good  faith  executed,  and  that  the  cotton  mentioned  in  said  bill  of 
lading  had  been  in  fact  received  by  said  defendant  as  represented 
in  said  bill  of  lading. 


rh.     Th  rl's  had  .'  drafts 

■'^-■'.ilar  .......  v..  ..iding,  si,£,  .  .  -  — -.  •  .'fore- 

cotton  shipped  them  by  >  h  l^hi:  '•}} 

I  111. s  as  commission  merchants  j"  a-.^     -...-■ 
"   and  that  the  cotton  so  previously  ad-. 
•  liffs  in  the 
rhe  bills  of  ; 
.  and  the  bill  or 
-.:   ed  by  plaiiit'^l'- 
fendant. 

"6th.     Tha.,  .>.  j......  ..:   , ...    ,. ,  ;    .,.,.  ..  .. 

1883,  was  executed  by  said  E.  D.  Easton  frai 
ith  said  Lahnstc 
.  ation,  such  as  's  ' 
ae  expectation  ■' "  -ion  oi  i 

cotton;  that  sa;  :  .ein  had 

:Mned  in  one  other  case,  whereDy  said  Easton  signed 
:.v_red  to  the  said  Lahnsteip  a  similar  bill  of  lading  for  thiv,v.  ,    . 
dred  bales  of  cotton  which  had  not  been  received,  and  which  '::i: 
r.  '   '--...  :--  1  j^Q  expectation  of  receiving,  the  latter-named  bill 
been  given  early  in  November,    1883,  but  that 
i^i.L.ntiiis  ill  tiiiii  suit  had  no  knowledge  whatever  of  the  fa< 
1!'  *bi:-   (sixth)  clause  until  after  they  had  in  good  faith  1 

upon  the  bill  of  lad  on  and  the  draft  thereto  at- 

- o  them  pre'^ented  as  a.-  .......  the  sum  of  $8,000,  as  M.-r..:,,., 

before  slated. 

"7th.    That  the  cotton  mer;*--"^^  ■-     "id  bill  of  ladH  ■ 
vember  6.  188;^).  had  the  san.  'Iv  received 


uid  have  o«. 
.  n  was  not  r\.  .   ^-  :  _  _  ^ 

".r -nt  when  said  bill  of  lading  was  by  him  exec 
transaction  was,  from  first  to  last,  customary  a 
of  trade,  and  in  accordance  with  the  usage  anci 


r88^.  and  Ic  thereto 


Otis  on  detendan  ii  station 

ant  is  a  corpora  and  existir.;' 

n  the  pet;' 
ber  10, 
e  has  b 

iien  toiiov\.s  \v]{  of  lading,  indorsed  by 


:■,,  it  recei\ 

'.d  in  sai' 
iding,  V  n  on  the  part  of  the  sai 

■  '  ^  ■■■■■  .  .hat  tii-    '  "  '   pretended  bi 

of  'U  the  p'  the  plaintiff. 

aiK)  .:).--  i\::  s,  and  v.  eciited  by  d'^ 

fciidant   n<.:  'iiat  tlie  lon  only  hat 

aiT  Uls  of  ladin' 

for 

The  die  couit  lor  trial,  a  jury  bein; 

'    .'vfi'  cd  statement  of  facts: 

:,  at  Sherman  station,  in  Gray  so : 

ision  of  the  Texas  and  Pacific  Rail 

w;-.  ,;ent  for  the  defendant  at  said  str- 

'!'      '  '    "   7.  of  which  a  copy  : 

Joseph  Lahnstein,  tli. 

ug. 

at  the  time  and  place  aforesai 

■'■.;  '.eg;        .  f  the  defendant  for  the  purpose  o 

■     '•  id  other  freight  for  transportation 

;  line  from  Sherman  station  afori, 
;•  was  in  the  usual  form  and  mad 
..s  in  use  bv  said  defendant  at  sav 
by  said  defendant  i 
eight  by  him  receive' 
tiie  defendant. 
'in  indorsed  said  bill  of  ladir 
hs  liack  thereof  and  drew  a  draft  < 

'ii  about  November  6,  1883  (of  whit 

dr.  1),  for  the  sum  of  eight  thousan 

dollar^  '  r  of  Oliver  &  Griggs,  and 

tached  .  .   so  indorsed,  and  on  or 

Noventixi  u.c   same  through   said   Oliver    .. 

'>i,::r;-    in-  oavment  by  the  plaintiffs  in  tl: 

ss  Oliver  &  Griggs  forw.^ 

'    ill  New  Orleans,  wher< 

•ffs  on  or  about  Novc 

That  .  I   said  plaintiffs  acted 

'   !  '  '  ss  as  commission 
:tton  to  them  foi 
■  aud  or  misrepresentatioji 
ift,  and  with  the  full  anci 
csL  tw'i:  .i  t  1  draft  were  honestly  and  i; 

good  faith  .  ton  mentioned  in  said  hi'!  • 

lading  had  f.aid  defendant  as  repre-- 

tn  said  bill  < 


TORTS.  25 1 

"5th.  That  plaintiffs  had  previously  paid  one  or  more  drafts 
upon  similar  bills  of  lading,  signed  by  the  said  Easton  as  agent  afore- 
said, for  cotton  shipped  them  by  said  Joseph  Lahnstein,  for  sale  by 
plaintiffs  as  commission  merchants  for  account  of  said  Joseph  Lahn- 
stein, and  that  the  cotton  so  previously  advanced  upon  was  received 
by  plaintiffs  in  the  due  course  of  transportation,  pursuant  to  the 
terms  of  the  bills  of  lading  upon  which  they  made  advances  respect- 
ively, and  the  bill  of  lading  of  November  6,  1883,  was  the  first  re- 
ceived by  plaintiff's  from  said  Lahnstein  and  not  fulfilled  by  de- 
fendant. 

"6th.  That,  in  point  of  fact,  said  bill  of  lading  of  November  6, 
1883,  was  executed  by  said  E.  D.  Easton  fraudulently  and  by  col- 
lusion with  said  Lahnstein  and  without  receiving  any  cotton  for 
transportation,  such  as  is  represented  in  said  bill  of  lading,  and  with- 
out the  expectation  on  the  part  of  the  said  Easton  of  receiving  any 
such  cotton ;  that  said  Easton  and  said  Lahnstein  had  fraudulently 
combined  in  one  other  case,  whereby  said  Easton  signed  and  de- 
livered to  the  said  Lahnstein  a  similar  bill  of  lading  for  three  hun- 
dred bales  of  cotton  which  had  not  been  received,  and  which  the 
said  Easton  had  no  expectation  of  receiving,  the  latter-named  bill 
of  lading  having  been  given  early  in  November,  1883,  but  that 
plaintiffs  in  this  suit  had  no  knowledge  whatever  of  the  facts  stated 
in  this  (sixth)  clause  until  after  they  had  in  good  faith  paid  and 
advanced  upon  the  bill  of  lading  sued  on  and  the  draft  thereto  at- 
tached, to  them  presented  as  aforesaid,  the  sum  of  $8,000,  as  herein- 
before stated. 

"7th.  That  the  cotton  mentioned  in  said  bill  of  lading  (of  No- 
vember 6,  1883),  had  the  same  been  actually  received  by  defendant 
and  forwarded  to  plaintiffs,  would  have  been  worth  largely  more 
than  the  amount  so  advanced  by  said  plaintiffs  as  aforesaid — that 
is  to  say,  would  have  been  worth  about  $10,000,  and  that,  except 
that  the  cotton  was  not  received  nor  expected  to  be  received  by  said 
agent  when  said  bill  of  lading  was  by  him  executed  as  aforesaid,  the 
transaction  was,  from  first  to  last,  customary  and  in  the  usual  course 
of  trade,  and  in  accordance  with  the  usage  and  customs  of  merchants 
and  shippers  and  receivers  of  cotton. 

"8th.  That  on  said  November  6,  1883,  and  long  prior  thereto 
and  ever  since,  the  headquarters  and  main  offices  of  defendant  were 
and  have  been  connected  by  railroad  and  telegraph  communication 
with  all  stations  on  defendant's  railroad  and  with  Sherman  station 
aforesaid,  among  others. 

"9th.  That  the  defendant  is  a  corporation  created  and  existing 
and  domiciled  as  alleged  in  the  petition. 

"loth.  That  on  November  10,  1883,  said  Joseph  mentioned  above 
was  insolvent,  and  that  he  has  been  insolvent  ever  since  and  is  so 
now." 

Then  follows  bill  of  lading,  indorsed  by  Lahnstein  and  with  draft 


252  LIABILITY   TO   THIRD   PERSONS. 

of  Friedlander  &  Co.  for  $8,000  attached,  acknowledging  the  re- 
ceipt from  Joseph  LL,hnstein  of  "two  hundred  bales  of  cotton  in  ap- 
parent good  order,  marked  and  numbered  as  below,  to  be  transported 
from  Sherman  to  New  Orleans,  La.,  and  delivered  to  the  consignees 
or  a  connecting  common  carrier,"  and  proceeding  in  the  usual  form, 
Lahnstein  being  named  as  consignee,  and  directions  given,  "Notify 
J.  Friedlander  &  Co.,  New  Orleans,  La."  The  circuit  court  found 
for  the  defendant,  and  judgment  was  rendered  accordingly,  and  writ 
of  error  thereupon  brought  to  this  court. 

Fuller,  C.  J. — The  agreed  statement  of  facts  sets  forth  "that, 
in  point  of  fact,  said  bill  of  lading  of  November  6,  1883,  was  exe- 
cuted by  said  E.  D.  Easton,  fraudulently  and  by  collusion  with  said 
Lahnstein  and  without  receiving  any  cotton  for  transportation,  such 
as  is  represented  in  said  bill  of  lading,  and  without  the  expectation 
on  the  part  of  the  said  Easton  of  receiving  any  such  cotton;"  and 
it  is  further  said  that  Easton  and  Lahnstein  had  fraudulently  com- 
bined in  another  case,  whereby  Easton  signed  and  delivered  to  Lahn- 
stein a  similar  bill  of  lading  for  cotton  "which  had  not  been  received, 
and  which  the"  said  Easton  had  no  expectation  of  receiving;"  and 
also  "that,  except  that  the  cotton  was  not  received  nor  expected  to 
be  received  by  said  agent  when  said  bill  of  lading  was  by  him  exe- 
cuted as  aforesaid,  the  transaction  was,  from  first  to  last,  customary." 
In  view  of  this  language,  the  words  "for  transportation,  such  as  is 
represented  in  said  bill  of  lading"  cannot  be  held  to  operate  as  a 
limitation.  The  inference  to  be  drawai  from  the  statement  is  that  no 
cotton  whatever  was  delivered  for  transportation  to  the  agent  at 
Sherman  station.  The  question  arises,  then,  whether  the  agent  of 
a  railroad  company  at  one  of  its  stations  can  bind  the  company  by 
the  execution  of  a  bill  of  lading  for  goods  not  actually  placed  in 
his  possession,  and  its  delivery  to  a  person  fraudulently  pretending 
in  collusion  with  such  agent  that  he  had  shipped  such  goods,  in 
favor  of  a  party  without  notice,  with  whom,  in  furtherance  of  the 
fraud,  the  pretended  shipper  negotiates  a  draft,  with  the  false  bill 
of  lading  attached.  Bills  of  exchange  and  promissory  notes  are 
representatives  of  money,  circulating  in  the  commercial  world  as 
such,  and  it  is  essential,  to  enable  them  to  perform  their  peculiar 
functions,  that  he  who  purchases  them  should  not  be  bound  to  look 
beyond  the  instrument,  and  that  his  right  to  enforce  them  should  not 
be  defeated  by  anything  short  of  bad  faith  on  his  part.  But  bills 
of  lading  answer  a  different  purpose  and  perform  different  functions. 
They  are  regarded  as  so  much  cotton,  grain,  iron  or  other  articles 
of  merchandise,  in  that  they  are  symbols  of  ownership  of  the  goods 
they  cover.  And  as  no  sale  of  goods  lost  or  stolen,  though  to  a  bona 
fide  purchaser  for  value,  can  divest  the  ownership  of  the  person 
who  lost  them  or  from  whom  they  were  stolen,  so  the  sale  of  the 
symbol  or  mere  representative  of  the  goods  can  have  no  such  effect, 
although  it  sometimes  happens  that  the  true  owner,  by  negligence, 


TORT:;..  -"^;^;^ 

has  so  put  i:  into, the  power  of  another  to  •jccupv  hi-^  ro-  usi- 

'v     .' .  .    ■  ■'         '.     '■;om  assc  iser, 

i c.i  i.;.^...,.  10  his  hurl   ...  ....  ''"- 

id  Co.,  loi  U.  S.  557,  563:  i 
-    ^'  -    -  d,  3  El.  &  Bl.  6-.., 
s  commercial  paper  i: 
and  ad', 
general,  < 
cm,  and  ot  tiie  right  tu  receive  such  prupetiy  at  uie  place  oi 
_>„  very. 

Such  heing  the  character  of  a  bill  of  lading,  can  ; 
..^o^. .r  n  ,.,x,-.,,-).,or(  carrier  ^'  ^  ^"  ■''is  never  actually  .0 

w,  becau  i"  its  agents,  having  jo 

•   •■  biiis  Oi  nother  person  is.^. 

■";••    .  in  the  ■  .  ? 

!*  Ihis  court  that 

V-S-,  il  of  lading  for  g 

put  on  board  the  vessel,  and,  it  ne  does  so,  his  act  does  nor  bmd  tr.e 
o^'•^er  of  the  ship  even  in  favor  of  an  innocent  purchaser.  Th.e 
I  eman  v.  Buckingham,  18  How.  182,  191 ;  The  Lady  Franklin,  8 
'  ■  .  ;  5 .  -  "  "  !d  V.  Vinton,  105  U.  S.  7.  And  this  agrees  with  the 
,      .  the  English  courts.    Lickbarrow  v.  Mason,  2  T.  R. 

;•.  r,rant  v,  Norway,  10  C.  B  '  ^^x  v.  Bruce,  18  Q.  B.  D.  147. 
•  :  :-;  receipt  of  the  goods,"   -  Itistice  Miller,  in  Pollard  v. 

,     /,  "lies  at  the  found<  he  contract  to  c 

'O  goods  are  actual^"  ■  ' f".  c^n  he  ;v; 

y  or  to  deliver." 
V  ,nn  contracts  made  m   ^".■.<-     .-.    .   w,    1 
.  carriers  by  land,  as  well  as  carriers  bv 
•_. .  -;  -  •    ^"  i''hews  In  T- 

l     .     ■  '  ii.ig  also: 

'.mitt  in  error  any  cotton  at 
or  by  the  bills  of  lading,  it  is  • 
d  not  be  liable  for  the  deficienc} 
cases  of  The  Schooner  Free"^ 
'■■■■■■  '<\  Pollard  V.  Vinton.  105  U.  S 


liiun  to  : 
.      _   .  or  omit' 
s.tein  to  impose 
1  not  authorize  ;.,.-i.  ..  . 
)Ot  assume  authority  itself  to 
'  the  mere' 
rt'on.  f<"> 


PERSONS. 


lander  i^ 
•nt  good  O' 


;i':u:l. 


FULLH 


of  merchandi 
tliey  cover.  . 
fide  purchasr 


although  il.  b 


■/  the  re- 

, .:  ....'.:>  :j:  .v,.L^n  in  ap- 

below,  to  be  transported 

•  uelivered  to  the  consignees 

proceeding  in  the  usual  form, 

ind  directions  given,  ''Notify 

a.""     The  circuit  court  found 

ds  rendered  accordingly,  and  writ 

-  court. 

statement  of  facts  sets  forth  "that, 

i;-o-  Qf  November  6,  1883,  was  exe- 

•  ilently  and  by  collusion  with  said 

: asportation,  such 

r  the  expectation 

•i  of  rec  ti ;"  and 

and  Lai  ■■.-Ay  com- 

Easton  signed  and  delivered  to  Lahn- 

r  cotton  "which  had  not  been  received. 

ad  no  expectation  of  receiving;"  and 

''"'".  was  not  :    ■      ■-  nor  expected  to 

lid  bill  r.  vas  by  him  exe- 

.  customary." 

i  ni,  such  as  i? 

canno!  "  to  operate  as  a 

wn  froiii     ..Lcment  is  that  no 

-•  transportation  to  the  agent  at 
rises,  then,  whether  the  agent  of 
tations  can  bind  the  company  by 
,  :3^-  for  goods  not  actually  placed  in 
;.   to  a  per=;on  fraudulently  pretending 
'  '    .  '•    '   such  goods,  in 

',1.,     '   .; -rtherance  of  the 
■liates  a  draft,  with  the  false  bill 
•'"^^'e  and  promissory,  notes  are 
in  the  commercial  world  as 
m  to  perform  their  peculiar 
>houlcl  not  be  bound  to  look 
them  should  '.•  ' 
part.     But  1: 
and  perform  different  functions, 
ton,  grain,  iron  or  other  articles 
mbols  of  ownership  of  the  goods 
•  ^ost  or  stolen,  though  to  a  bon-' 
lie  ownership  of  the  per 
>i:oTen,  so  the  sale  of 
can  have  no  such  efi 
o  true  owner,  by  negligei 


TORTS.  253 

has  so  put  it  into  the  power  of  another  to  occupy  his  position  ostensi- 
bly, as  to  estop  him  from  asserting  his  right  as  against  a  purchaser, 
who  has  been  misled  to  his  hurt  by  reason  of  such  negligence.  Shaw 
V.  Railroad  Co.,  loi  U.  S.  557,  563 ;  PoUard  v.  Vinton,  105  U.  S.  7, 
8;  Gurney  v.  Behrend,  3  El.  &  Bl.  622,  633,  634.  It  is  true  that 
while  not  negotiable  as  commercial  paper  is,  bills  of  lading  are  com- 
monly used  as  security  for  loans  and  advances;  but  it  is  only  as 
evidence  of  ownership,  special  or  general,  of  the  property  mentioned 
in  them,  and  of  the  right  to  receive  such  property  at  the  place  of 
deliver>\ 

Such  being  the  character  of  a  bill  of  lading,  can  a  recovery  be  had 
against  a  common  carrier  for  goods  never  actually  in  its  possession 
for  transportation,  because  one  of  its  agents,  having  authority  to 
sign  bills  of  lading,  by  collusion  with  another  person  issues  the  docu- 
ment in  the  absence  of  any  goods  at  all  ? 

It  has  been  frequently  held  by  this  court  that  the  master  of  a 
vessel  has  no  authority  to  sign  a  bill  of  lading  for  goods  not  actually 
put  on  board  the  vessel,  and,  if  he  does  so,  his  act  does  not  bind  the 
owner  of  the  ship  even  in  favor  of  an  innocent  purchaser.  The 
Freeman  v.  Buckingham,  18  How.  182,  191  ;  The  Lady  Franklin,  8 
Wall.  325  ;  Pollard  v.  Vinton,  105  U.  S.  7.  And  this  agrees  with  the 
rule  laid  down  by  the  English  courts.  Lickbarrow  v.  Mason,  2  T.  R. 
'j'j;  Grant  v.  Norway,  10  C.  B.  665 ;  Cox  v.  Bruce,  18  Q.  B.  D.  147. 
"The  receipt  of  the  goods,"  said  Mr.  Justice  Miller,  in  Pollard  v. 
Vinton,  supra,  "lies  at  the  foundation  of  the  contract  to  carry  and 
deliver.  If  no  goods  are  actually  received,  there  can  be  no  valid  con- 
tract to  carry  or  to  deliver."  "And  the  doctrine  is  applicable  to 
transportation  contracts  made  in  that  form  by  railway  companies 
and  other  carriers  by  land,  as  well  as  carriers  by  sea,"  as  was  said 
by  Mr.  Justice  Matthews  in  Iron  Mountain  Railway  v.  Knight,  122 
U.  S.  79,  87,  he  adding  also:  "If  Potter  (the  agent)  had  never  de- 
livered to  the  plaintiff  in  error  any  cotton  at  all  to  make  good  the 
525  bales  called  for  by  the  bills  of  lading,  it  is  clear  that  the  plaintiff 
in  error  would  not  be  liable  for  the  deficiency.  This  is  well  estab- 
lished by  the  cases  of  The  Schooner  Freeman  v.  Buckingham,  18 
How.  182,  and  Pollard  v.  Vinton,  105  U.  S.  7." 

It  is  a  familiar  principle  of  law  that  where  one  of  two  innocent 
parties  must  suffer  by  the  fraud  of  another,  the  loss  should  fall  upon 
him  who  enabled  such  third  person  to  commit  the  fraud ;  but  nothing 
that  the  railroad  company  did  or  omitted  to  do  can  be  properly  said 
to  have  enabled  Lahnstein  to  impose  upon  Friedlander  &  Co.  The 
company  not  only  did  not  authorize  Easton  to  sign  fictitious  bills 
of  lading,  but  it  did  not  assume  authority  itself  to  issue  such  docu- 
ments except  upon  the  delivery  of  the  merchandise.  Easton  was  not 
the  company's  agent  in  the  transaction,  for  there  was  nothing  upon 
which  the  agency  could  act.  Railroad  companies  are  not  dealers 
in  bills  of  exchange,  nor  in  bills  of  lading;  they  are  carriers  only, 


254  LIABILITY   TO  THIRD   PERSONS. 

and  held  to  rigid  responsibility  as  such.  Easton,  disregarding  the 
object  for  which  he  was  employed,  and  not  intending  by  his  act  to 
execute  it,  but  wholly  for  a  purpose  of  his  own  and  of  Lahnstein, 
became  particeps  criminis  with  the  latter  in  the  commission  of  the 
fraud  upon  Friedlander  &  Co.,  and  it  would  be  going  too  far  to 
hold  the  company,  under  such  circumstances,  estopped  from  denying 
that  it  had  clothed  this  agent  with  apparent  authority  to  do  an  act 
so  utterly  outside  the  scope  of  his  employment  and  of  its  own  busi- 
ness. The  defendant  cannot  be  held  on  contract  as  a  common  car- 
rier, in  the  absence  of  goods,  shipment  and  shipper ;  nor  is  the  ac- 
tion maintainable  on  the  ground  of  tort.  "The  general  rule,"  said 
Willes,  J.,  in  Barwick  v.  English  Joint  Stock  Bank,  L.  R.  2  Ex. 
259,  265,  "is  that  the  master  is  answerable  for  every  such  wrong  of 
the  servant  or  agent  as  is  committed  in  the  course  of  the  service 
and  for  the  master's  benefit,  though  no  express  command  or  privity 
of  the  master  be  proved."  See  also  Limpus  v.  London  General  Om- 
nibus Co.,  I  H.  &  C.  526.  The  fraud  was  in  respect  to  a  matter 
within  the  scope  of  Easton 's  employment  or  outside  of  it.  It  was  not 
within  it,  for  bills  of  lading  could  only  be  issued  for  merchandise 
delivered ;  and  being  without  it,  the  company,  which  derived  and 
could  derive  no  benefit  from  the  unauthorized  and  fraudulent  act, 
cannot  be  made  responsible.  British  Mutual  Banking  Co.  v.  Charn- 
wood  Forest  Railway  Co.,  18  O.  B.  D.  714. 

The  law  can  punish  roguery,  but  cannot  always  protect  a  pur- 
chaser from  loss,  and  so  fraud  perpetrated  through  the  device  of  a 
false  bill  of  lading  may  work  injury  to  an  innocent  party,  which  can- 
not be  redressed  by  a  change  of  victim. 

Under  the  Texas  statutes  the  trip  or  voyage  commences  from 
the  time  of  the  signing  of  the  bill  of  lading  issued  upon  the  delivery 
of  the  goods,  and  thereunder  the  carrier  cannot  avoid  his  liability 
as  such,  even  though  the  goods  are  not  actually  on  their  passage  at 
the  time  of  a  loss,  but  these  provisions  do  not  afifect  the  result  here. 

We  cannot  distinguish  the  case  in  hand  from  those  heretofore  de- 
cided by  this  court,  and  in  consonance  with  the  conclusions  therein 
announced  this  judgment  must  be 

Affirmed.^ 

^  See  collection  of  cases  in  accord  with  the  principal  case  in  Nat.  Bank  of 
Commerce  v.  Chicago,  etc.,  R.  Co.,  44  Minn.  224,  232  and  233.  On  page  233, 
Mitchell,  J.,  says :  "The  reasoning  by  which  this  doctrine  is  usually  supported 
is  that  a  bill  of  lading  is  not  negotiable  in  the  sense  in  which  a  bill  of  exchange 
or  promissory  note  is  negotiable,  where  the  purchaser  need  not  look  beyond 
the  instrument  itself;  that  so  far  as  it  is  a  receipt  for  the  goods  it  is  suscepti- 
ble of  explanation  or  contradiction,  the  same  as  any  other  receipt;  that  the 
whole  question  is  one  of  the  law  of  agency;  that  it  is  net  within  the  scope  of 
the  authority  of  the  shipping  agent  of  a  carrier  to  issue  bills  of  lading  where 
no  property  is  in  fact  received  for  transportation ;  that  the  extent  of  his  au- 
thority, either  real  or  apparent,  is  to  issue  bills  of  lading  for  freight  actually 
received ;  that  his  real  and  apparent  authority — i.  e.,  the  power  with  which  his 


YOKj";: 

TAVTA  V.  NEV. 
RAILRf 

RT   OF   ApPi 

.  iu^G-rrirnlrrf  ti- 


ll in  one  w;  ws:      •Received 

••''-'?:  articles  'unknown)  h-<  < 
bairrels  The  rec' 

■   "  ijed  were     r 


Comstock,  New  York" 
i  in  Ihc 

.^trine  r  of  ^.cf^^cv  in  this 

d  his  ae  -r  to  do 

::..-r-  "^  -1,1  De- 

'of 


r.  3  Hill  362 ;  Lj  .ven,  25 


;  are  sc  lainied  . 


cii'  1  'i.:l.i   lO  rigi  -r  ■         disregarding  the 

f  L-;ect  for  which  r  intending  by  his  act  to 

,    .  :Mf(>  ;t   l^nf  .  s  own  and  of  Lahnstein, 

m  the  commission  of  the 
...   ■<.:   lipun    !  ■    v%oukl  be  going  too  far  to 

h'j'ld  the  conu'  •  lances.  estopped  from  denying" 

fha<-  it  '^    ■  "      '  "'"v  an  act 

-•-  'itt'^r'  \vn  busi- 

i  ijjnlraci  as  a  common  car- 
I  and  shipper;  nor  is  the  ac 
1!(  \]  nip  ;  "The  general  rule,"  said 

•'  ■-  '  '  -k  Bank,  L.  R.  2  ^-■ 

every  such  wroi.' 
^e  of  the  sev 
tir.and  or  pi 
'  Limpi  'General  > 

I'raud  V.  .  to  a  m 

vment  o-  01  ir.    It  wa;- 

:  on'v  '  for  merchant 

lich  derived  and 
./c.L  .lud  fraudulent  act. 
x\  Banking  Co.  v.  Cham- 

TV,   hut 


1     .  upon  the  deli\ 
cariKT  caimor  avoid  his   '    ' 
•p  not  actually  on  their  \. 

do  not  affect  the  res  all  her'.. 

•t-r'  f-om  those  heretofore  de- 

e  conclusions  therein 


■al  case  in  Nat.  Bank  oi 


').   look  b'. 

it  is  ?rT-i 


iiC  power  with  which  hu 


TORTS.  255 

BANK  OF  BATAVIA  v.  NEW  YORK,  LAKE  ERIE  AND 
WESTERN  RAILROAD  COMPANY. 

1887.     Court  of  Appeals  of  New  York.     106  N.  Y.  195. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fifth  judicial  department  in  favor  of  plaintiff,  entered  upon 
an  order  made  October  31,  1884,  which  denied  a  motion  for  a  new 
trial  and  ordered  judgment  on  a  verdict  directed  by  the  court.  (Re- 
ported below  33  Hun  589.) 

This  action  was  brought  to  recover  damages  alleged  to  have  been 
sustained  by  plaintiff  in  consequence  of  the  wrongful  issue  by  de- 
fendant, through  its  local  freight  agent  at  Batavia,  of  two  bills  of 
lading.  The  recital  in  one  was  as  follows :  "Received  from  F.  C. 
Williams  the  following  articles  (contents  unknown)  in  apparent  good 
order,  viz.,  thirty-five  barrels  of  beans."  The  recital  in  the  other 
was  the  same,  save  that  the  articles  described  were  "thirty  barrels 
of  beans."    The  consignee  named  was  "I.  T.  Comstock,  New  York." 

The  material  facts  are  stated  in  the  opinion. 

Finch,  J. — It  is  a  settled  doctrine  of  the  law  of  agency  in  this 
state  that  where  the  principal  has  clothed  his  agent  with  povv^er  to  do 
an  act  upon  the  existence  of  some  extrinsic  fact  necessarily  and  pe- 
culiarly within  the  knowledge  of  the  agent,  and  of  the  existence  of 
which  the  act  of  executing  the  power  is  itself  a  representation,  a  third 
person  dealing  with  such  agent  in  entire  good  faith,  pursviant  to  the 
apparent  power,  may  rely  upon  the  representation,  and  the  principal 
is  estopped  from  denying  its  truth  to  his  prejudice.  (North  River 
Bank  v.  Aymar,  3  Hill  362 ;  Griswold  v.  Haven,  25  N.  Y.  595,  601 ; 
N.  Y.  &  N.  H.  R.  R.  Co.  v.  Schuyler,  34  id.  30 ;  Armour  v.  M.  C.  R.  R. 
Co.,  65  id.  III.)  A  discussion  of  that  doctrine  is  no  longer  needed 
or  permissible  in  this  court,  since  it  has  survived  an  inquir}^  of  the 
most  exhaustive  character,  and  an  assault  remarkable  for  its  persist- 
ence and  vigor.  If  there  be  any  exception  to  the  rule  within  our 
jurisdiction  it  arises  in  the  case  of  municipal  corporations  whose 
structure  and  functions  are  sometimes  claimed  to  justify  a  more  re- 
stricted liability.    The  application  of  this  rule  to  the  case  at  bar  has 

principal  has  clothed  him  in  the  character  in  which  he  is  held  out  to  the  world 
— is  the  same,  viz. :  to  give  bills  of  lading  for  goods  received  for  transporta- 
tion ;  and  that  this  limitation  upon  his  authority  is  known  to  the  commercial 
world,  and  therefore  any  person  purchasing  a  bill  of  lading  issued  by  the 
agent  of  a  carrier  acts  at  his  own  risk  as  respects  the  existence  of  the  fact 
(the  receipt  of  the  goods)  upon  which  alone  the  agent  has  authority  to  issue 
the  bill,  the  rule  being  that,  if  the  authority  of  an  agent  is  known  to  be  open 
for  exercise  only  in  a  certain  event,  or  upon  the  happening  of  a  certain  con- 
tingency, or  the  performance  of  a  certain  condition,  the  occurrence  of  the 
event,  or  the  happening  of  the  contingency,  or  the  performance  of  the  condi- 
tion, must  be  ascertained  by  him  who  would  avail  himself  of  the  results  ensu- 
ing from  the  exercise  of  the  authority." 


256  LIABILITY   TO   THIRD   PERSONS. 

determined  it  in  favor  of  the  plaintiffs  and  we  approve  of  that  con- 
clusion. 

One  Weiss  was  the  local  freight  agent  of  the  defendant  corpora- 
tion at  Batavia,  whose  duty  and  authority  it  was  to  receive  and  for- 
ward freight  over  the  defendant's  road,  giving  a  bill  of  lading  there- 
for specifying  the  terms  of  the  shipment,  but  having  no  right  to 
issue  such  bills  except  upon  the  actual  receipt  of  the  property  for 
transportation.  He  issued  bills  of  lading  for  sixty-five  barrels  of 
beans  to  one  Williams,  describing  them  as  received  to  be  forwarded 
to  one  Comstock,  as  consignee,  but  adding  with  reference  to  the 
packages  that  their  contents  were  unknown.  Williams  drew  a  draft 
on  the  consignee,  and  procured  the  money  upon  it  of  the  plaintiff  by 
transferring  the  bills  of  lading  to  secure  its  ultimate  payment.  It 
turned  out  that  no  barrels  of  beans  were  shipped  by  Williams,  or  de- 
livered to  the  defendant,  and  the  bills  of  lading  were  the  product  of 
a  conspiracy  between  him  and  Weiss  to  defraud  the  plaintiff  or  such 
others  as  could  be  induced  to  advance  their  money  upon  the  faith  of 
the  false  bills. 

It  is  proper  to  consider  only  that  part  of  the  learned  and  very  able 
argument  of  the  appellant's  counsel  which  questions  the  application 
of  the  doctrine  above  stated  to  the  facts  presented.  So  much  of  it 
as  rests  upon  the  ground  that  no  privity  existed  between  the  defend- 
ant and  the  bank  may  be  dismissed  with  the  observation  that  no 
privity  is  needed  to  make  the  estoppel  available  other  than  that  which 
flows  from  the  wrongful  act  and  the  consequent  injurv.  (N.  Y.  & 
N.  H.  R.  R.  C.  V.  Schuyler,  supra.) 

While  bills  of  lading  are  not  negotiable  in  the  sense  applicable 
to  commercial  paper,  they  are  very  commonly  transferred  as  security 
for  loans  and  discounts,  and  carry  with  them  the  ownership,  either 
general  or  special,  of  the  property  which  they  describe.  It  is  the 
natural  and  necessary  expectation  of  the  carrier  issuing  them  that 
they  will  pass  freely  from  one  to  another  and  advances  be  made  upon 
their  faith,  and  the  carrier  has  no  right  to  believe,  and  never  does 
believe,  that  their  office  and  effect  is  limited  to  the  person  to  whom 
they  are  first  and  directly  issued.  On  the  contrary,  he  is  bound  by 
law  to  recognize  the  validity  of  transfers  and  to  deliver  the  property 
only  upon  the  production  and  cancellation  of  the  bill  of  lading. 

If  he  desires  to  limit  his  responsibility  to  a  delivery  to  the  named 
consignee  alone,  he  must  stamp  his  bills  as  "non-negotiable :"  and 
w^here  he  does  not  do  that  he  must  be  understood  to  intend  a  possi- 
ble transfer  of  the  bills  and  to  aft'ect  the  action  of  such  transferees. 
In  such  a  case  the  facts  go  far  beyond  the  instances  cited,  in  which 
an  estoppel  has  been  denied  because  the  representations  were  not 
made  to  the  party  injured.  (Mayenborg  v.  Haynes,  50  N.  Y.  675; 
Maguire  v.  Selden,  103  N.  Y.  642.)  Those  were  cases  in  which 
the  representations  made  were  not  intended  and  could  not  be  ex- 


_^   ..   .■,  :0t  all- 

ey were  of  a  'ills 

Li.c  precise  purpu->v.,  -•  ..a.  ^.  ms 

d,  of  deceivinc^  the  bank  by  ti  nd 

the 

.an- 

or 

it, 

'ntalty  injured,  hut  have  done  \vi. 

-rv  reason  to  expect.    Considerat;-^..       .      ...  ^ 

t  of  an  equitable  estoppel,  without  referenc 

or  directness  of 
vions    also,  up- 
:  to  the 
:nown  tci 
and  his  principal,    it  the  rule  compelled  ti 

peril  of  the  existence  or  absence  of  the  c  . ..; 

lically  end  the  large  volume  of  businesss  founded 

iiills  of  lading-.    Of  whom  sliall  the  lender  inquire, 

the  fact  ?    Naturally  he  would  go  to  the  freight 

ready  falsely  declared  in  writing  t- 

'      Is  he  any  more  ntithorized  to 

■  than  the  written  or  ,!  the  lender  gei  permis- 

n^-h  the  freight  hou^  .  m'ne  the  books?    If  the 

it  may  not  be  easy  '  y,  and  the  books,  if 

work  of  the  sar^  .-  agent.     It  ' '■ 

1  fact  of  the  shii-  ne  peculiarl 

"ier  and 
.:e  of  thf 
of  the 

L:ie  bills  t!'  .  -. jf  the  r:^ 

1  have  left  the  defendant  free  fror; 

he  actual  contents  from  those  des< 

where  nothing  is  shipped  and  th 


court  and  ju 
i?  affirmed,  v. 


■■  mined  it  in  '  and  we  approve  of  that  c  • 

-n. 
■■'.'.  Weiss  tit  of  the  defendant  corpoiu 

li'  ;■,  a:  J^arav  ity  it  wa^i  lo  receive  and  for- 

w;.'  !  fi-riinir  .  ;;--v— •   ■  ■  ■^  lading  there- 

to-     ;.  MiMn.  no  right  to 

luai  iL.  -t'fty  for 

lading  .rrels  of 

•  •c>!i  hem  as  ^o  be  forwarded 

;  nit  addiii'^  reference  to  the 

re  unknown.    VVilhams  drew  a  draft 

rhe  money  r.----         f  the  plaintiff  by 

trans  to  secure    '  i.e  payment.     It 

r  .,\  Williams,  or  de- 

]  were  the  product  of 

the  plaintiff  or  such 
'iy  upon  the  faith  of 

.......   .'.v: ,.  ■,.  c,,v  learned  and  very  able 

ansel  which  questions  the  application 

'      '  '  ^      So  much  of  it 

•een  the  defend- 

rvation  that  no 

^  ^    ,  ■  than  that  which 

i)d  the  consequent  injury 

>t  negotiable  in  the  sense  applicable 

commonly  transferred  as  securit}- 

with  them  the  ownership,  either 

y  which  they  descrilje.     It  is  the 

of  the  carrier  issuing  them  that 

:  jthcr  and  advances  l>e  made  up<:)n 

right  to  h>elieve,  and  never  does 
is  limited  to  the  person  to  whc«n 
"  the  contrary,  he  is  bound  by 
s  and  to  deliver  the  property 
ion  of  the  bill  of  lading. 
.  V  to  a  delivery  to  the  named 
Us  as  "non-negotiable:"  and 
understood  to  intend  a  po??i- 
le  action  of  such  transfer! 
ji.  -   .;  ■  the  instances  cited,  in  wh 

an  estopi  .he  representations  were 

Tg  v.  ilajTies,  50  N.  Y.  675 ; 

Those  were  cases  in  which 

liic  repix  ended  and  could  not  be  ex- 


TORTS.  257 

pected  to  influence  the  persons  who  reh'ed  upon  them,  and  their 
knowledge  of  them  was  described  as  purely  accidental  and  not  an- 
ticipated. Here  they  were  of  a  totally  different  character.  The  bills 
were  made  for  the  precise  purpose,  so  far  as  the  agent  and  Williams 
were  concerned,  of  deceiving  the  bank  by  their  representations,  and 
every  bill  issued  not  stamped  was  issued  with  the  expectation  of  the 
principal  that  it  would  be  transferred  and  used  in  the  ordinary  chan- 
nels of  business,  and  be  relied  upon  as  evidence  of  ownership  or 
security  for  advances.  Those  thus  trusting  to  it  and  affected  by  it, 
are  not  accidentally  injured,  but  have  done  what  they,  who  issued 
the  bill  had  every  reason  to  expect.  Considerations  of  this  character 
provide  the  basis  of  an  equitable  estoppel,  without  reference  to  ne- 
gotiability or  directness  of  representation. 

It  is  obvious,  also,  upon  the  case  as  presented,  that  the  fact  or 
condition  essential  to  the  autliority  of  the  agent  to  issue  the  bills  of 
lading  was  one  unknown  to  the  bank  and  peculiarly  within  the  knowl- 
edge of  the  agent  and  his  principal.  If  the  rule  compelled  the  trans- 
feree to  incur  the  peril  of  the  existence  or  absence  of  the  essential 
fact,  it  would  practically  end  the  large  volume  of  businesss  founded 
upon  transfers  of  bills  of  lading.  Of  whom  shall  the  lender  inquire, 
and  how  ascertain  the  fact?  Naturally  he  would  go  to  the  freight 
agent,  who  had  already  falsely  declared  in  writing  that  the  property 
had  been  received.  Is  he  any  more  authorized  to  make  the  verbal 
representation  than  the  written  one?  Must  the  lender  get  permis- 
sion to  go  through  the  freight  house  or  examine  the  books?  If  the 
property  is  grain,  it  may  not  be  easy  to  identify,  and  the  books,  if 
disclosed,  are  the  work  of  the  same  freight  agent.  It  seems  very 
clear  that  the  vital  fact  of  the  shipment  is  one  peculiarly  within  the 
knowledge  of  the  carrier  and  his  agent,  and  quite  certain  to  be  un- 
known to  the  transferee  of  the  bill  of  lading,  except  as  he  relies  upon 
the  representation  of  the  freight  agent. 

The  recital  in  the  bills  that  the  contents  of  the  packages  were  un- 
known would  have  left  the  defendant  free  from  responsibility  for  a 
variance  in  the  actual  contents  from  those  described  in  the  bill,  but 
is  no  defense  where  nothing  is  shipped  and  the  bill  is  wholly  false. 
The  carrier  cannot  defend  one  wrong  by  presuming  that  if  it  had 
not  occurred  another  might  have  taken  its  place.  The  presumption 
is  the  other  way ;  that  if  an  actual  shipment  had  been  made  the  prop- 
erty really  delivered  would  have  corresponded  with  the  description 
in  the  bills. 

The  facts  of  the  case  bring  it,  therefore,  within  the  rule  of  estoppel 
as  it  is  established  in  this  court  and  justify  the  decision  made. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur. 

Judgment  affirmed.^ 

'^Accord:    Sioux  City,  etc.,  R.  Co.  v.  First  Nat.  Bank,  10  Neb.  556;  Brooke 
17 — Reinhard  Cases. 


258  LIABILITY   TO  THIRD   PERSONS, 

(b)    PERSONAL  INJURY. 

GREGORY  V.  PIPER. 
1829.     Court  of  King's  Bench.     9  B.  &  C.  591. 

Trespass  for  casting,  throwing,  placing,  and  depositing  divers 
large  quantities  of  earth,  stones,  bricks  and  rubbish  against  and 
upon  the  walls  and  gates  and  posts  of  the  plaintiff.  Plea,  not  guilty. 
At  the  trial  before  Alexander,  C.  B.,  at  the  summer  assizes  for  the 
county  of  Cambridge,  1828,  it  appeared  that  the  plaintiff  occupied  a 
public  house  called  the  Rising  Sun,  in  Newmarket,  with  a  stable- 
yard  belonging  to  it,  where  he  put  up  the  horses  of  his  guests.  The 
way  to  the  stable  was  by  the  back  gate  from  the  High  street,  through 
a  yard  called  the  Old  King's  Yard.  A  wall  belonging  to  the  plain- 
tiff separated  his  stable-yard  from  the  Old  King's  Yard.  The  de- 
fendant having  purchased  the  property  surrounding  the  Old  King's 
Yard,  disputed  the  plaintiff's  right  to  pass  along  the  same  to  his 
stable,  and  employed  one  Stubbings,  a  laborer,  to  lay  dovv^n  a  quan- 
tity of  rubbish,  consisting  of  bricks,  mortar,  stones,  and  dirt,  near 
the  plaintiff's  stable-yard,  in  order  to  obstruct  the  way ;  and  Stub- 
bings, on  the  26tli  of  April,  and  several  following  days,  laid  down 
rubbish  accordingly,  part  of  which  rolled  against  plaintiff's  wall 
and  gates.  It  lay  about  two  feet  high  against  the  plaintiff's  wall  for 
five  or  six  yards  in  length.  Stubbings  being  called  as  a  witness  on 
the  part  of  the  plaintiff,  stated  that  he  was  employed  by  the  defend- 
ant to  lay  the  rubbish  in  the  yard  ;  that  the  defendant  had  given  him 
orders  not  to  let  any  of  the  rubbish  touch  the  plaintiff's  wall ;  that 
he  executed  those  orders  as  nearly  as  he  could,  and  accordingly  laid 
the  rubbish  at  first  at  the  distance  of  a  yard  and  a  half  from  the  wall ; 
and  that  the  rubbish,  being  of  a  loose  kind,  as  it  became  dry  naturally 
shingled  down  toward  and  ran  against  the  wall.  He  added  that  some 
of  it  would  of  course  run  against  the  wall. 

It  further  appeared  that  on  the  third  of  May,  when  an  application 
was  made  by  the  plaintiff'  to  the  defendant  to  remove  the  rubbish, 
the  latter  said  he  was  determined  not  to  remove  it.  Upon  this  evi- 
dence it  was  objected  by  the  defendant  that  trespass  was  not  main- 
tainable, inasmuch  as  the  defendant  had  given  express  orders  to  the 
servant  not  to  let  the  rubbish  touch  the  plaintiff's  wall ;  that,  there- 

V.  New  York,  etc.,  R.  R.  Co.,  108  Pa.  St.  529.  Wichita  Sav.  Bank  v.  Atchison, 
etc.,  R.  R.  Co.,  20  Kan.  519.  On  page  523  of  the  last  named  case,  Horton,  C. 
J.,  says:  "Instruments  of  this  kind  (bills  of  lading  and  warehouse  receipts) 
are  sui  generis.  From  long  use  and  trade,  they  have  come  to  have  among 
commercial  men  a  well-understood  meaning,  and  the  endorsement  or  assign- 
ment of  them  as  absolutely  transfers  the  general  property  of  the  goods  and 
chattels  therein  named  as  would  a  bill  of  sale." 

See  Fifth  Ave.  Bank  v.  Forty-second  Street,  etc.,  R.  R.  Co.,  137  N.  Y.  23K 


f  the  wall  was  occasi'  of  the 

u-iT,  and  that  case,  !T.f  ■  inain- 

hief  Baron  direci^i^i  lh-.  ,      .    <.<>  ii  ior  Liie 

eserved  liberty  to  the  defendant  :  ,  nter  a 

lie  nisi  havin.s;  been  obtained  ''ks, 

clly,  were  to  have  shown  cau  ".it 

i  upon  Denman  and  Gunnint 

.  in  an  action  on  the  case  on;; 

vant,  and  not  at  all  for  a  wilful  v 
,y   his   servant,    Morley   v,    Gaisfo; 
Crickett,  i  East  106.    And  if  a  serv; 
.  t  exceed  his  authority,  and  thereby  C' 

ot  liable.    Here  the  master  gave  expro 
■  lay  the  rubbish  so  that  it  should  not  t'  • 

[Parke,  J. — The  servant  could  not  ex  ' 

without  some  of  the  rubbish  touching  th' 

;;ary  consequence  of  the  act  ordered  to  be  . -■  - 

1  »  gave  the  order  must  be  taken  to  have  contemplated 
'  onsequence  of  his  own  act.  The  rolling  of  the  rubbish 
A\  was  therefore  as  much  the  act  of  the  defendant  as 
ered  it  to  be  done.].    The  master  is  liable  only  for  .the 

sequences  of  the  act.  Here  the  servant  by  extraor- 
i.L^ht  have  prevented  the  rubbish  touching  the  plaintiff's 

-iety  of  the  Inner  Tem^ple  liave  authorized  the  \>vv\\\.- 
10  obstruct  windows  opening  upon  their  premi- 


+he  wall  of  tb             '  es  in  which  the 

^^' 

\r>:\ 

wilfully  kn                    a  brick,  that 

so 

,le.     If  f'                .i^n  had  don 

have  bee'                :  case,  but  r 

e  only  r r                 ,  Whether  f 

The  m.;               =red  the  serv 

>  let  it  touc'n  or  lean  against  * 

executior       •■-    order  it  was  : 

1  - 

of  the   .                .   d  to  be   dc 

ish 

'he  wall,  . 

.     i'he 

:\  thrxt 

le  rule 
A  his  mas- 

a  restrictior 

'  executing 

X  for  the  serve.;. 

\v: 

ith,  and  tbf- 

he  order,  breaks                  the 

restrict! 

ose  the 

I,  and  t; 

caitlc,  but  not  to  K. 

l.at  the  cattle  went  v. 

1829. 


SCH.      9B.  &C.  591. 


Trespass   Uji 
large  quantities 
upon  the  wa!'  - 
At  the  trial 

county  • 
public  ;• 
yard  be; 
way  to  •' 
a  A'rird 
Tii?  - 
fen 


ati. 

he 

tht  lui' 
and  tha : 

shi^    • 

of 


..ax;..^,.  •  --    .^positing  diver 

icks   and    rubbish   against  an> 

01  the  plaintiff.    Plea,  not  guilt; 

B..  at  the  siunmer  assizes  for  tV 

'aintiff  ocGup' 

-tt,  with  a  s 

t  up  the  norses  of  his  guests.     Tli 

..  ..  gate  fron^  il-.-  TTIu'i  >;treet,  througl 

Vard.    A  v  to  the  plair 

''"im  the  Cm'.  :^'  :;v;  '   1  ard.     The  dc 

>pertv  surrounding  the  Old  King" 

\long  the  same  to  hi 

to  lay  down  a  quan 

bricks.  tones,  and  dirt,  nea 

Ttler  t'.  .:  the  way;  and  Stub 

several  following  days,  laid  dow 

•  ^^    rolled  against  plaintiff's  wa 

ajrainst  the  plaintiff's  wall  fo 

"  d  as  a  witne 

od  by  the  dc. 

;  that  ilie  deiciulant  had  given  hu 

■  ish  touch  the  plaintiff's  wall;  tha 

'v  as  he  could,  and  accordingly  lai' 

of  a  yard  and  a  half  from  the  wall 

ose  kind,  as  it  became  dry  natural! 

*  the  wall.  He  added  that  son: 

wall. 

en  an  a 
^  move  the 
.  to  remove  it.   Upon  this  • 
..  .ant  that  trespass  was  not  n. 
nt  had  given  express  orders  t' 
ch  the  plaintiff's  wall;  that,  tiicr'. 


11-1,:..   c„,.   Bank  V    *'^ 
Ted  case, 

art 
con  : 

-unde 

., 

ment  of 
chattels  ' 
See  Fifth  . 

] 

.d 

.anl< 

lutely 
as  \v 
:  V. 

-itei 

jperty  of  the  goou 
,  etc.,  R.  R.  Co.,  137  N.  Y 

PERSONAL  INJURY.  259 

fore,  the  touching  of  the  wall  was  occasioned  by  the  negligence  of  the 
defendant's  servant,  and  that  case,  not  trespass,  was  therefore  main- 
tainable. 

The  Lord  Chief  Baron  directed  the  jury  to  find  a  verdict  for  the 
plaintiff,  but  reserved  liberty  to  the  defendant  to  move  to  enter  a 
non-suit.  A  rule  nisi  having  been  obtained  for  that  purpose,  Storks, 
Serjt.,  and  Kelly,  were  to  have  shown  cause  against  the  rule,  but 
the  court  called  upon  Denman  and  Gunning  to  support  the  rule.  A 
master  is  liable  in  an  action  on  the  case  only  for  the  negligent  con- 
duct of  his  servant,  and  not  at  all  for  a  wilful  unauthorized  trespass 
committed  by  his  servant,  Morley  v.  Gaisford,  2  H.  Bl.  442 ; 
M'Manus  v.  Crickett,  i  East  106.  And  if  a  servant  being  ordered  to 
do  a  lawful  act  exceed  his  authority,  and  thereby  commit  an  injury, 
the  master  is  not  liable.  Here  the  master  gave  express  directions  to 
the  servant  to  lay  the  rubbish  so  that  it  should  not  touch  the  wall  of 
the  plaintiff.  [Parke,  J. — The  servant  could  not  execute  the  orders 
of  the  master  without  some  of  the  rubbish  touching  the  wall;  that 
was  the  necessary  consequence  of  the  act  ordered  to  be  done,  and 
the  person  who  gave  the  order  must  be  taken  to  have  contemplated 
the  necessary  consequence  of  his  own  act.  The  rolling  of  the  rubbish 
against  the  wall  was  therefore  as  much  the  act  of  the  defendant  as 
if  he  had  ordered  it  to  be  done.]  The  master  is  liable  only  for  the 
inevitable  consequences  of  the  act.  Here  the  servant  by  extraor- 
dinary care  might  have  prevented  the  rubbish  touching  the  plaintiff's 
wall. '  The  Society  of  the  Inner  Temple  have  authorized  the  putting 
up  of  boards  to  obstruct  windows  opening  upon  their  premises,  but 
so  as  not  to  touch  the  wall  of  the  premises  in  which  the  windows  are. 
If  a  workman  had  wilfully  knocked  out  a  brick,  that  society  would 
not  have  been  liable.  If  the  workman  had  done  so  through  negli- 
gence they  might  have  been  liable  in  case,  but  not  in  trespass. 

Bayley,  J. — The  only  question  is,  Whether  the  trespass  was  the 
act  of  the  master.  The  master  desired  the  servant  to  lay  down  the 
rubbish  so  as  not  to  let  it  touch  or  lean  against  the  wall  of  the  plain- 
tiff. But  if  in  the  execution  of  the  order  it  was  the  necessary  or  nat- 
ural consequence  of  the  act  ordered  to  be  done  that  the  rubbish 
should  go  against  the  wall,  the  master  is  answerable  in  trespass.  The 
evidence  shows  that  that  was  the  natural  consequence.  The  rule 
must,  therefore,  be  discharged. 

LiTTLEDALE,  J. — Where  a  servant  does  work  by  order  of  his  mas- 
ter, and  the  latter  imposes  a  restriction  in  the  course  of  executing 
his  order  which  it  is  difficult  for  the  servant  to  comply  with,  and  the 
servant,  in  execution  of  the  order,  breaks  through  the  restriction, 
the  master  is  liable  in  trespass.  Suppose  the  case  of  two  persons 
possessed  of  contiguous  unenclosed  land,  and  that  the  one  of  them 
desired  his  servant  to  drive  his  cattle,  but  not  to  let  them  go  upon 
the  land  of  his  neighbor,  and  that  the  cattle  went  upon  the  land  of 


26o  LIABILITY   TO  THIRD   PERSONS. 

the  neighbor,  the  master  would  be  answerable  in  trespass,  because  he 
has  only  a  right  to  expect  from  his  servant  ordinary,  not  extraordi- 
nary care.  If  the  servant,  therefore,  in  carrying  into  execution  the 
orders  of  his  master  uses  ordinary  care,  and  an  injury  is  done  to  an- 
other, the  master  is  liable  in  trespass.  If  the  injury  arise  from  the 
want  of  ordinary  care  in  the  servant,  the  master  will  only  be  liable 
in  case.  Here  the  servant  used  ordinary  care  in  the  course  of  exe- 
cuting the  master's  order,  and  notwithstanding  that,  the  rubbish  ran 
against  the  wall. 

Parke,  J. — I  think  that  the  defendant  is  liable  in  this  form  of 
action.  If  a  single  stone  had  been  put  against  the  wall  it  would 
have  been  sufficient.  Independently  of  Stubbings's  evidence  there  was 
sufficient  evidence  to  satisfy  the  jury  that  the  rubbish  was  placed 
there  by  the  defendant,  for  he  expressed  his  determination  not  to 
remove  it.  It  does  not  rest  there.  Stubbings  says  he  was  desired  not 
to  let  the  rubbish  touch  the  wall.  But  it  appeared  to  be  of  a  loose 
kind,  and  it  was  therefore  probable  that  some  of  it  naturally  might 
run  against  the  wall.  Stubbings  said  that  some  of  it  of  course  would 
go  against  the  wall.  Now  the  defendant  must  be  taken  to  have  con- 
templated all  the  probable  consequences  of  the  act  which  he  had  or- 
dered to  be  done,  and  one  of  these  probable  consequences  was,  that 
the  rubbish  would  touch  the  plaintiff's  wall.  If  that  was  so,  then 
the  laying  the  rubbish  against  the  wall  was  as  much  the  defendant's 
act  as  if  it  had  been  done  by  his  express  com.mand.  The  defendant, 
therefore,  was  the  person  who  caused  the  act  to  be  done,  and  for  the 
necessary  or  natural  consequence  of  his  own  act  he  is  responsible 
as  a  trespasser. 

Rule  discharged.^ 


SEARLE  V.  PARKE  et  al. 
1895.     Supreme  Court  of  New  Hampshire.     68  N.  H.  311. 

Action  by  George  F.  Searle  against  A.  J.  Parke  and  another. 

Trespass,  de  bonis,  with  a  count  in  trover,  for  taking  and  carrying 
away  and  for  the  conversion  of  a  diamond  ring.  Facts  found  by  the 
court.  The  defendants  were  engaged  in  decorating  the  Statesman 
Building,  and  employed  B  and  S,  two  irresponsible  strangers,  to 
assist  them.    June  20,  1894,  it  became  convenient  in  the  prosecution 

^  "In  the  consideration  of  the  question,  as  to  the  liability  of  the  master  for 
the  injuries  caused  by  his  servant,  the  cases  in  which  the  wrong  has  been  done 
by  the  command  of  the  master  must  be  distinguished  from  those  in  which 
there  is  no  command.  Where  a  master  commands  a  thing  to  be  done,  and  an 
injury  results  from  the  want  of  care  in  the  servant  whilst  performing  the 
order,  the  master  is  liable  in  trespass."  Scott,  J.,  in  Douglass  v.  Stephens,  18 
Mo.  362,  366. 


PERSONAL   I  261 

'k  t'^  rr^  absence  the  ;  the  build- 

1;  possession  >  he  door 

..wd,    B,  hy  dirt-.  .,..  red  the 

tlie  window^  and  admiti-  iiey  re- 

lii  hour  or  s"         -  —"  •■"'■  ■:    role 

iher  of  the  c  m. 

]  for  le-  .>cau  by  iiiuig  a  ^ss 

in  case 

J.— On  the  ed,  the  ■ 

^  of  the  rJjK. form  01  - 

over  in  trespa5>s  de  bonis  or  trove 
.,.-  ..        ..   ;,       ..  i...  •their  servar 

led  in  the  tal 
'  that  they  i  a . 
.an,  6  Man. 
I,  13  I\i  .  634.    It  is  not 

,  .rt  in  or  : .    he  trespass,  and 

:n  that  they  are  Hable  in  their  character  as  Vi 

the  business  for  which  B  and  S  were  engaged,  r.-.    • ,  ^^ 

.-cope  of  their  employment.     The  mere  fact  that  the 

'heir  servants  is  not  sufficient  to  make  the  defend- 

the  wrong.  Wilson  v,  Peverly,  2  N.  H.  548;  Ar- 

■'.  H.  157;  A  Green,  62  N.  H.  436.    The 

recover  in  -.;         ,    ast  the  defendants  for  negli- 

thieves  as   servants,   because  negligence  i.«:  not 

>  quare  c'-"- •-  -^-^^-^dants  wor;-^  '^-^  '■"'  '  ■  in 

•  It  least.  :  nd  enter  ;ey 

•  '  "     '  ic  for  any  uy 

iJT.  and  f^'^  -Ti •■ 


verable.     Gilman  v.  Nov 
y,  Torts,  68-77.    The  Ian 

•")f  the  unlawful  act  which  .•:i. 

.  1  or  pre ^  '  '  i.r-ra 

'dsnts   V  antici- 


it.    The  others  concurred.' 

to  take  the  goods  of  C,  and 

-■  B."     Eac.  Ahr..  Vol.  a   tif 


26o 


LLV: 


the  neighU:'r,  the  n: 
has  only  a  right  tr 
nary     rao.     If  the 
<_•  his  masLt 

o  'T>a«;ter 

want  ui  ( 
in  case,     i 
cuting  the  ma; 

'  ]•/ 
actioij 
have  hee't 


:  in  trespass,  because  he 

ordinary,  not  extraordi- 

■  ying  into  execution  the 

!ia  an  injury  is  done  to  an- 

[i  the  injury  arise  from  the 

.  c  master  will  only  be  liable 

ly  care  in  the  course  of  exe- 

'hstanding  that,  the  rubbish  ran 

■cadant  is  liable  in  this  form  of 

li  put  against  the  wall  it  would 

>  t  Stubbing's's  evidence  there  was 

.  jry  that  '  '  >ish  was  placed 

-ressed  ■  nination  not  to 

■rubbings  says  he  was  desired  not 

P)Ut  it  appeared  to  be  of  a  loose 

able  that  some  of  it  naturally  might 

^  said  thr'      ■ '^^   'f  it  of  course  would 

'efendar  taken  to  have  con- 

hich  he  had  or- 

,  ;ences  was,  that 

wall      ii  that  was  so,  then 

'     ■?  much  the  defendant's 

i;d.    The  defendant, 

.iu.^«.>.  .i.v  ..V.  L^  be  done,  and  for  the 

ice  of  his  own  act  he  is  responsible 


results    ' 
...  .,1.  the  masti' 
Mo.  362,  366. 


lRKE  et  al. 


Hampshire.    68  N.  H.  311. 


Trespass,  ac 

■■■•-  ■■•■'.  for  lii- 
le  defer. 


'An«idcr; 


A.  J.  Parke  and  another. 

.over,  for  taking  and  carrying 

aid  ring.    Facts  found  by  tlie 

m  decorating  the  Statesman 

'  uisible  strangers,  to 

:  c  in  the  prosecution 

I 
rri  the  Hahilitv  of  the  master 


PERSONAL  INJURY.  26 1 

of  the  work  to  enter,  in  his  absence,  the  plaintiff's  room  in  the  build- 
ing, to  the  exclusive  possession  of  which  he  was  entitled,  and  the  door 
of  which  was  locked.  B,  by  direction  of  the  defendants,  entered  the 
room  through  the  window,  and  admitted  S  by  the  door.  They  re- 
mained there  an  hour  or  so,  during  which  one  or  both  of  them  stole 
the  ring.  Neither  of  the  defendants  entered  or  went  near  the  room. 
The  plaintiff  moved  for  leave  to  amend  by  filing  counts  in  trespass 
quare  clausum  and  in  case. 

Carpenter,  J. — On  the  facts  stated,  the  defendants  are  not  liable 
for  the  larceny  of  the  ring  in  any  form  of  action.  To  entitle  the 
plaintiff  to  recover  in  trespass  de  bonis  or  trover,  it  must  be  shown 
that  the  defendants,  personally  or  by  their  servants,  acting  within  the 
scope  of  their  employment,  participated  in  the  taking  and  conversion, 
or  that  it  was  taken  for  their  benefit,  and  that  they  ratified  the  taking. 
2  Greenl.  Ev.,  §  631 ;  Wilson  v.  Tumman,  6  Man.  &  G.  236,  242, 
243;  Lewis  V.  Read,  13  I\Iees.  &  W.  834.  It  is  not  claimed  that  the 
defendants  took  part  in  or  ratified  the  trespass,  and  there  is  as  little 
ground  to  claim  that  they  are  liable  in  their  character  as  masters. 
Theft  was  not  the  business  for  which  B  and  S  were  engaged,  nor  was 
it  within  the  scope  of  their  employment.  The  mere  fact  that  the 
wrongdoers  were  their  servants  is  not  sufficient  to  make  the  defend- 
ants answerable  for  the  wrong.  Wilson  v.  Peverly,  2  N.  H.  548 ;  Ar- 
thur V.  Balch,  23  N.  H.  157;  Andrews  v.  Green,  62  N.  H.  436.  The 
plaintiffs  could  not  recover  in  case  against  the  defendants  for  negli- 
gently employing  thieves  as  servants,  because  negligence  is  not 
found.  In  trespass  quare  clausum  the  defendants  would  be  liable  in 
nominal  damages,  at  least,  for  the  breaking  and  entering,  which  they 
directed.  They  wcaild  also  be  responsible  for  any  damage  directly 
caused  by  the  act  of  breaking  and  entering,  and  for  any  consequen- 
tial injury  that  naturally  and  reasonably  could  be  expected  to  result 
therefrom.  For  consequences  neither  natural  nor  probable,  they 
would  not  be  answerable.  Gilman  v.  Noyes,  57  N.  H.  627 ;  Pol. 
Torts,  31-37 ;  Cooley,  Torts,  68-77.  The  larceny  was  not  the  immedi- 
ate or  direct  result  of  the  unlawful  act  which  the  defendants  directed. 
Whether  it  was  the  natural  or  probable  consequence  of  the  act — a 
consequence  that  the  defendants  reasonably  ought  to  have  antici- 
pated— is  a  question  of  fact.  Gilman  v.  Noyes,  57  N.  H.  62^.  That 
it  was  such  a  consequence  is  not,  and  on  the  evidence  reported  could 
not  properly  be  found. 

Judgment  for  the  defendants. 

Blodgett,  J.,  did  not  sit.    The  others  concurred.^ 

_  ^  "If  A  command  or  request  B  to  take  the  goods  of  C,  and  B  do  it,  this  action 
lies  as  well  against  A  as  against  B."    Bac.  Abr.,  Vol.  4,  title  Trespass,  G.  i. 


262  LIABILITY   TO  THIRD    PERSONS. 

JOEL  V.  MORISON. 
1834.     Nisi  Prius.       6  C.  &  P.  501. 

The  declaration  stated,  that,  on  the  i8th  of  April,  1833,  the  plain- 
tiff was  proceeding  on  foot  across  a  certain  public  and  common  high- 
way, and  that  the  defendant  was  possessed  of  a  cart  and  horse,  which 
were  under  the  care,  government,  and  direction  of  a  servant  of  his, 
who  was  driving  the  same  along  the  said  highway,  and  that  the  de- 
fendant by  his  said  servant  so  carelessly,  negligently  and  improperly 
drove,  governed,  and  directed  the  said  horse  and  cart,  that,  by  the 
carelessness,  negligence,  and  improper  conduct  of  the  defendant  by 
his  servant,  the  cart  and  horse  were  driven  against  the  plaintiff  and 
struck  him,  whereby  he  was  thrown  down  and  the  bone  of  one  of 
his  legs  was  fractured,  and  he  was  ill  in  consequence,  and  prevented 
from  transacting  his  business,  and  obliged  to  incur  a  great  expense 
in  and  about  the  setting  the  said  bone,  etc.,  and  a  further  great  ex- 
pense in  retaining  and  employing  divers  persons  to  superintend  and 
look  after  his  business  for  six  calendar  months.     Plea — not  guilty. 

From  the  evidence  on  the  part  of  the  plaintiff  it  appeared  that  he 
was  in  Bishopgate  street,  when  he  was  knocked  down  by  a  cart  and 
horse  coming  in  the  direction  from  Shoreditch,  which  were  sworn 
to  have  been  driven  at  the  time  by  a  person  who  was  the  sen^ant  of 
the  defendant,  another  of  his  servants  being  in  the  cart  with  him. 
The  injury  was  a  fracture  of  the  fibula. 

On  the  part  of  the  defendant  witnesses  were  called,  who  swore 
that  his  cart  was  for  weeks  before  and  after  the  time  sworn  to 
by  the  plaintiff's  witnesses  only  in  the  habit  of  being  driven  between 
Burton  Crescent  ]Mews  and  F"inchley,  and  did  not  go  into  the  city 
at  all. 

Thesiger,  for  the  plaintiff',  in  reply,  suggested  that  either  the  de- 
fendant's servants  might  in  coming  from  Finchley  have  gone  out 
of  their  way  for  their  own  purposes,  or  might  have  taken  the 
cart  at  a  time  when  it  was  not  wanted  for  the  purpose  of  business, 
and  have  gone  to  pay  a  visit  to  some  friends.  He  was  observing  that, 
under  these  circumstances,  the  defendant  was  liable  for  the  acts  of 
his  servants. 

Parke,  B. — He  is  not  liable  if,  as  you  suggest,  these  young  men 
took  the  cart  without  leave  ;  he  is  liable  if  they  were  going  extra  liam 
in  going  from  Burton  Crescent  Mews  to  Finchley ;  but  if  they  chose 
to  go  of  their  own  accord  to  see  a  friend,  when  they  were  not  on 
their  master's  business,  he  is  not  liable. 

His  Lordship  afterwards,  in  summing  up,  said :  This  is  an  action 
to  recover  damages  for  an  injury  sustained  by  the  plaintiff",  in  con- 
sequence of  the  negligence  of  the  defendant's  servant.  There  is  no 
doubt  that  the  plaintiff  has  suffered  the  injury,  and  there  is  no  doubt 
that  the  driver  of  the  cart  was  guilty  of  negligence,  and  there  is  no 


:>15,RS0NAL  i': 


^on  W3Sf 


263 
irt  on  hi^ 


3u  think  the  sei 
'it  the  defenda^x. , 
:hink  that  the'  yo 
;ij  lusly,  and  was  not  a 
the  defendant  will  not  t 


"son 


a  Ihe  ser-' 
s  srohi<2r  ■ 


m  anvmg  on  nis 
:  but  if  he  wa-  -'-'^. 
his  master's 
.,es,  the  mastc    - 
vv.  therefore  the  ; 
■  e  plaintiff — damage^... 


"  in  the 
■  .y,  again.- 
master's  busin: 
"3-  on  a  frolic  oi  ... 
the  master  will 
""  of  any  oflFe:' 
iiould  be  rea.- 


CROFT  V.  ALISON. 


',  iiiaL  tii-j  plainttiis  were  the  o>. 

chariot,  then  'awfrJly  being"  an-: 
ighway,  and  th;:  endant 

Md  horse-    '■>'*••  ,  .^  and  •.■• 

■n  drivir.  'Jwg  the 

-'':       "  '  carelessi^ 


inferior 


lased 


ril,  18^33,  the  plain 

and  common  higi  ■ 

ot  a  cart  and  horse,  which 

V  irection  of  a  servant  of  his, 

^^•iu.  vVrio  diivix :.  ^.aid  highway,  and  that  the  de- 

t:-:'l;i."t  bv  bi>  -sly,  negligently  and  improperly 

iid  horse  and  cart,  that,  by  the 

or  conduct  of  the  defendant  by 

!iis  SO'  driven  against  the  plaintiff  and 

down  and  the  bone  of  one  of 

!  in  consequence,  and  prevented 

ed  to  incur  a  great  expense 

■' z.    nrd  a  further  great  ex- 

!0  superintend  and 

Plea — not  guilty. 

it  appeared  that  he 

i'  I  iw  s\.\:-,  1  own  by  a  cart  and 

>n  from  Shv  which  were  sworn 

by  a  pe;  was  the  sei'vant  of 

orvants  1  ihe  cart  with  him. 

i  fibula. 

:    \v'!i;e-->^s   wove  called,  who  swoi  . 
'he  time  sworn  tf^ 
1:^.  iMv  •  ■->.■.  M<Mj;,.  ,M  I. ting  driven  between 

Burtc  chley,  and  did  not  go  into  the  cy. 

liggested  that  either  the  c 
:_'   from  Finchley  have  gone  <^' 
ses,   or  might  have  taken    ti, 
ed  for  the  purpose  of  busine- 
r.;,.,wK    TT^  ^vas  observing  tb; 
ible  for  the  acts 

;,oung  m. 
. '.  gaing(U-f." 
;  but  if  the_ 
id,  when  they  were  not 


His  f.-ird..ir  up,  said:    This  is  an  acti 

)ver  dai!  led  by  the  plaintifT,  i*:   - 

ce  of  t1:;  iant's  servant.     Then 

b:>uL>l.  tlia!  '  ■         rid  there  is  no  LiOL. 

ihat  the  d  :ce,  and  there  is  1. 


PERSONAL  INJURY.  263 

doubt  also  that  the  master,  if  that  person  was  driving  the  cart  on  his 
master's  business  is  responsible.  If  the  servants,  being  on  their 
master's  business  took  a  detour  to  call  upon  a  friend,  the  master  will 
be  responsible.  If  you  think  the  servants  lent  the  cart  to  a  person 
who  was  driving  without  the  defendant's  knowledge,  he  will  not  be 
responsible.  Or,  if  you  think  that  the  young  man  who  was  driving 
took  the  cart  surreptitiously,  and  was  not  at  the  time  employed  on 
his  master's  business,  the  defendant  will  not  be  liable.  The  master  is 
only  liable  when  the  servant  is  acting  in  the  course  of  his  employ- 
ment. If  he  was  going  out  of  his  way,  against  his  master's  implied 
commands,  when  driving  on  his  master's  business,  he  will  make 
his  master  liable ;  but  if  he  was  going  on  a  frolic  of  his  own,  without 
being  at  all  on  his  master's  business,  the  master  will  not  be  liable. 
As  to  the  damages,  the  master  is  not  guilty  of  any  offense,  he  is  only 
responsible  in  law,  therefore  the  amount  should  be  reasonable. 
Verdict  for  the  plaintiff — damages,  30/.^ 


CROFT  V.  ALISON. 

1821.     Court  of  King's  Bench.     4  B.  &  Aid.  590. 

The  declaration  stated,  that  the  plaintiffs  were  the  owners  and 
proprietors  of  a  certain  chariot,  then  lawfully  being  and  standing 
in  a  certain  public  highway,  and  that  the  defendant  was  possessed 
of  a  certain  coach  and  horses,  under  the  care  and  government  of  a 
servant,  who  was  then  driving  the  same  along  the  highway,  and  that 
the   defendant,  by  his   said   servant,   so  carelessly   and   improperly 

^  See  article  by  John  H.  Wigmore,  "Responsibility  for  Tortious  Acts :  Its 
History."    Part  II,  7  Harv.  Law  Rev.  383. 

"In  no  case  does  this  phrase  (respondeat  superior)  point  to  an  absolute  lia- 
bility of  the  superior  for  acts  done  by  the  inferior  or  even  for  those  done  in 
the  course  of  his  employment.  In  all  cases  it  points  to  a  merely  subsidiary 
liability  of  the  superior,  which  can  only  be  enforced  against  him  when  it  is 
proved  or  patent  that  the  inferior  cannot  pay  for  his  own  misdeed.  This  indi- 
cates, as  we  believe,  what  has  first  and  last  been  one  of  the  main  causes  of 
'employer's  liability.'  "  2  Pollock  and  Maitland,  Hist.  Eng.  Law  531. 
_  "The  law  has  said  that  whenever  an  injtiry  has  been  occasioned  by  the  neg- 
ligent conduct  of  a  person  in  the  service  of  another,  the  master  is  answerable 
for  it;  and  this  is  for  the  purpose  of  inducing  those  who  employ  others  to 
take  care  that  thev  emplov  proper  persons."  Erskine,  J.,  to  jurj'  in  Sleath  v. 
Wilson,  9  C.  &  P.  607,  610. 

"This  rule  of  liability  is  not  based  upon  any  presumed  authority  in  the 
agent  to  do  the  acts,  biit  upon  the  ground  of  public  policy,  and  that  it  is  more 
reasonable,  where  one  of  two  innocent  parties  must  suffer  from  the  wrongful 
act  of  a  third  person,  that  the  principal,  who  has  placed  the  agent  in  the  posi- 
tion of  trust  and  confidence,  should  suffer  rather  than  a  stranger."  Mason, 
J.,  in  Lee  v.  Village  of  Sandy  Hill,  40  N.  Y.  442,  448. 


264  LIABILITY   TO  THIRD   PERSONS. 

drove,  governed,  and  directed  his  said  coach  and  horses  that,  by  the 
carelessness,  negligence,  and  improper  conduct  of  the  defendant,  by 
his  servant,  one  of  the  fore-wheels  of  the  coach  struck,  and  damaged 
the  said  chariot.  Plea,  general  issue.  At  the  trial,  it  appeared  that 
the  plaintiffs,  who  were  livery-stable  keepers,  had  hired  the  chariot 
for  the  day  of  Messrs.  Lambert  &  Bryant,  who  were  coachmakers. 
The  plaintiff  furnished  the  horses,  and  appointed  the  coachman,  and 
then  let  it  out  to  an  individual  for  the  day.  It  was  stated  in  evidence, 
that  the  cause  of  the  accident  arose  from  the  defendant's  coachman 
striking  the  plaintiff's  horses  with  his  whip,  in  consequence  of  which 
they  moved  forw^ard,  and  the  chariot  was  overturned.  At  the 
time  when  the  horses  were  struck,  the  two  carriages  were  entangled. 
The  lord  chief  justice,  at  the  trial,  left  it  to  the  jury  to  determine, 
whether  the  carriages  had  become  entangled  from  the  moving  of  the 
horses  of  the  plaintiff's  which,  previously  to  the  accident,  were  stand- 
ing still  and  without  a  driver,  and  he  directed  them  to  find  for  the 
defendant,  in  case  they  thought  so,  and  that  the  whipping  by  the  de- 
fendant's coachman  was  for  the  purpose  of  extricating  himself  from 
that  situation.  But  he  directed  them  to  find  for  the  plaintiffs,  in  case 
they  were  of  opinion,  that  the  entangling  arose  originally  from  the 
fault  of  the  defendant's  coachman.  The  jury  found  a  verdict  for 
the  plaintiffs.    And  now 

Scarlett  moved  for  a  new  trial.  First,  the  plaintiff's  cannot  prop- 
erly be  called  the  owners  and  proprietors  of  the  chariot,  having  only 
hired  it  of  the  real  proprietors  for  one  day ;  and  if  any  but  the'  real 
proprietors  can  be  so  called,  the  individual  actually  using  the  car- 
riage at  the  time  might  be  much  more  properly  called  so  than  the 
present  plaintiffs.  Secondly,  the  injury  arose  from  the  act  of  the 
defendant's  coachman,  in  whipping  the  plaintiff's  horses ;  now  that 
was  a  wanton  act  on  his  part,  for  which  he  himself,  and  not  his 
master,  would  be  liable ;  and  the  declaration  which  charges,  that,  by 
the  carelessness,  negligence,  and  improper  conduct  of  the  defend- 
ant's servant,  the  accident  happened,  is  not  supported  by  the  proof 
of  a  wanton  act. 

Per  Curiam. — As  to  the  first  point,  it  has  never  been  supposed 
that  a  mere  passenger  in  a  carriage  can  be  considered  as  the  owner 
and  proprietor,  so  as  to  be  entitled  to  bring  this  action.  The 
plaintiffs,  however,  are  something  more,  for  they  have  not  only  hired 
the  chariot  for  the  day,  but  have  appointed  the  coachman  and  fur- 
nished the  horses.  They  may,  therefore,  be  considered,  for  the 
purposes  of  this  declaration,  as  the  owners  and  proprietors  of  the 
chariot.  As  to  the  second  point,  the  distinction  is  this ;  If  a  serv- 
ant driving  a  carriage,  in  order  to  effect  some  purpose  of  his 
own,  wantonly  strike  the  horses  of  another  person,  and  produce  the 
accident,  the  master  will  not  be  liable.  But  if,  in  order  to  perform 
his  master's  orders  he  strikes  out  injudiciously,  and  in  order  to    ex- 


Lii.; 


om  a  Hiffin."'  b^  tiegjii  ■  careless 


to  the 

■•,1  J 


!E  ho: 

Supreme  Cour 


1.  Dowell,  - 

)ne  Lour  dant,  enteri; 


h. 


... ,    ..  .,  ihe  20th  day  c.  , . 

T.he  com;  octed  by  the  court  af . 

lie.  cc'urt  and  a  jury,  with  noi 
V  on  such  appeal  the  order  g 

J. — If  the  plaintiff  prevails  in  this  action  it  must  be  upon 

!  invocation  of  the  principle  of  respondeat  superior,  be- 

lividual  who  perpetrated  the  cruel  wr-""  ■  ^tv^ -n  him  is 

claim  of  the  plaintiff  being  that  he  ^^  rvant  ot 

'    ■■'--  *'-  -   "---    - --ible  for  iiis  V  :,,.--^-  ' 

another  he  dof 


tiiat 


rior,  whi 
.  „nd  >erv  . 
hose  re] 


's  no  ap: 
to  ascer 

ii>  the  S' 


'.    tiiC    ir 

1^  wa^ ; 


264 

dru  -  that,  bv  the 


■ic  Lridi,  11  appeared  Li 
,    rs,  had  hired  the  chari  . 
Bryant,  who  were  coachmakers. 
"■■'    ^'  'tinted  the  coachman,  and 

It  was  stated  in  evidence. 


i  ui  utd.      At    ih'. 

-  were  entangled. 

!  !io  left  it  to  the  jury  to  determine, 

111  .nrL','  >'-om  the  moving  of  the 

iccident,  were  stand- 

•jxciru  tlieni  to  find  for  the 

thnt  the  whippin<?f  bv  the  de- 


entanghng  ar.j,-<.'  ongmally  from 


.proprietors  of  the  chariot,  having  o 

1'  .  '      ;  and  if  any  but  the  ' 

.  )  actually  using  the  ^ 
!ich  more  properly  called  so  than 
ilie  injury  arose  from  the  act  of 
ping  the  plaintiff's  horses;  now  ' 
for  which  '^     1.  ..  -•.    ^nd  not 
.  .^  leclarati*  ^es.  tiiat 

the  deft 
jy  th.e  p- 

'-t  noint  iiever  been  suppc 

•1  be  considered  as  the  ov 
....;   to  bring  this   action, 
aore,  for  they  have  not  only  h 
'  "1  the  coachman  and 
be  considered,   for 
;  and  proprieto! 
Hlion  is  this ;  I' 
anr  t    some  purpose 

ovr  ,  ...r  person,  and  prr- 

d  But  if,  in  order  to 


PERSONAL  INJURY.  265 

tricate  himself  from  a  difificulty,  that  will  be  negligent  and  careless 
conduct,  for  which  the  master  will  be  liable,  being  an  act  done  in  pur- 
suance of  the  servant's  employment.     The  case,  therefore,  has  been 
properly  left  to  the  jury. 
Rule  refused.^ 


Mcdowell  v.  the  homer  ramsdell  transporta- 
tion COMPANY. 

1894.     Supreme  Court  of  New  York.     78  Hun  228. 

Appeal  by  the  plaintiff,  Bertram  A.  McDowell,  from  a  judgment 
of  the  Supreme  Court  in  favor  of  the  defendant,  entered  in  the  oflfice 
of  the  clerk  of  the  county  of  Dutchess  on  the  20th  day  of  June,  1893, 
upon  the  dismissal  of  the  complaint  directed  by  the  court  after  a  trial 
at  the  Dutchess  circuit  before  the  court  and  a  jury,  with  notice  of  an 
intention  to  bring  up  for  review  on  such  appeal  the  order  granting  a 
non-suit. 

Dykman,  J. — If  the  plaintifif  prevails  in  this  action  it  must  be  upon 
the  successful  invocation  of  the  principle  of  respondeat  superior,  be- 
cause the  individual  w^ho  perpetrated  the  cruel  wrong  upon  him  is 
not  sued,  the  claim  of  the  plaintiff  being  that  he  was  the  servant  of 
the  defendant,  who  was,  therefore,  responsible  for  his  wrongful  act. 
The  rule  of  law  that  what  a  man  does  by  another  he  does  himself 
is  so  well  established  that  it  has  passed  into  a  legal  maxim.  And 
upon  that  rule  is  built  up  another  legal  principle  equally  well  estab- 
lished under  the  name  of  respondeat  superior,  which  belongs  to  the 
relation  of  principal  and  agent,  master  and  servant,  superior  and 
subordinate,  and  is  co-extensive  with  those  relations. 

The  rule  itself  is  free  from  obscurity  and  easily  understood,  but 
its  applicability  to  a  given  case  is  oftentimes  very  uncertain,  arising 
from  the  difficulty  of  determining  whose  servant  the  person  is  who 
perpetrated  the  wrong  which  caused  the  injury. 

The  basis  of  the  rule  is  the  power  of  the  superior  to  prevent  the 
injury  by  controlling  the  subordinate,  and  where  such  powder  does 
not  exist  the  rule  has  no  application.  It  will  be  of  paramount  im- 
portance, therefore,  to  ascertain  whether  the  individual  who  in- 
jured the  plaintiff  was  the  servant  of  the  defendant  at  the  time  of 
the  commission  of  the  act,  and,  therefore,  a  recitation  of  the  facts 
will  not  be  inappropriate. 

On  the  3d  day  of  August,  1892,  the  defendant  was  the  owner  of 
the  steamboat  James  T.  Brett,  which  was  in  commission  and  supplied 

^A  good  case  holding  that  one  who  lends  a  horse  is  not  liable  for  injuries 
resulting  to  a  third  partv  from  the  use  of  the  horse  is  Bard  v.  Yohn,  26  Pa. 
St.  482. 


266  LIABILITY   TO   THIRD    PERSONS. 

with  the  complement  of  officers  and  men  employed  by  the  defendant 
for  the  successful  navigation  of  the  vessel.  On  that  day  the  boat 
was  chartered  to  Mink  and  Burnett  for  an  excursion  from  Highland, 
in  Ulster  county,  to  Coney  island  and  back.  The  charterers  adver- 
tised the  excursion  in  their  own  name,  and  assumed  the  control  of 
the  boat  and  crew,  and  received  the  proceeds  of  the  adventure.  The 
excursion  was  made  without  accident  until  the  return  of  the  boat  to 
the  dock  at  Fishkill  Landing  in  the  evening.  When  the  boat  was 
leaving  the  dock  the  plaintiff  requested  and  received  permission  from 
Burnett  to  go  on  board  the  boat.  At  that  time  the  gang  plank  had 
been  hauled  in,  the  rail  put  up  and  the  paddle  wheels  started.  The 
plaintiff  jumped  upon  the  guard  of  the  boat  outside  the  rail  and  was 
shoved  off  into  the  water  by  one  of  the  crew.  The  boat  was  stopped 
and  the  plaintiff'  rescued,  but  he  was  placed  in  imminent  peril  of 
his  life. 

At  the  close  of  the  trial  at  the  circuit  the  plaintiff"  was  non-suited, 
and  he  has  appealed  from  the  judgment. 

In  the  examination  of  the  case  we  will  assume  that  the  plaintiff 
had  the  right  to  go  upon  the  boat  as  he  undertook  to  do  and  that 
his  expulsion  was  wrongful.  While  it  might  be  a  presumption  of 
law  arising"  from  the  ownership  of  the  boat  that  it  was  in  use  for  the 
benefit  of  its  owners,  that  presumption  is  overcome  in  this  case  by 
the  proof  that  the  ownership  was  separate  from  the  possession,  which 
was  not  in  subordination  to  the  title  but  to  the  charter-party.  An 
excursion  may  be  concluded  ^vithout  danger  or  harm  to  any  one.  If 
it  could  not  then  the  defendant  might  be  liable  because  it  chartered 
the  boat  for  that  very  service,  and  could  not  escape  liability  by  inter- 
posing the  contract  to  do  the  thing  that  caused  the  injury. 

It  is  to  be  observed,  also,  that  the  injury  to  the  plaintiff  did  not 
result  from  any  defect  in  the  boat  or  its  machinery  or  appliances,  nor 
from  any  fault  in  the  navigation  or  management  of  the  boat,  but 
from  the  wrongful  conduct  of  one  of  the  crew. 

The  owner  surrendered  all  control  of  the  boat  and  all  her  em- 
ployes, and  had  no  immediate  interest  in  her  earnings  during  the 
existence  of  the  charter  party.  There  was,  therefore,  an  actual  de- 
mise of  the  vessel  which  stripped  the  owner  not  only  of  the  posses- 
sion of  the  boat,  but  also  of  all  authority  and  control  of  her.  When 
the  charterers  hired  the  boat  and  crew  that  was  an  adoption  and 
selection  of  the  men  which  constituted  them  their  servants,  and  the 
men  were  under  their  full  control.  Thev  could  remove  any  of  the 
deck  hands  for  disobedience  or  misconduct,  and  that  power  brought 
them  within  the  rule  laid  down  in  Ouarman  v.  Burnett,  hereafter 
noticed.  These  facts  appear  to  be  sufficient  to  bring  the  case  within 
the  decision  of  the  court  of  appeals  in  the  case  of  Scarff  v.  Metcalf 
(107  N.  Y.  211).  They  create  the  relation  of  master  and  servant  be- 
tween the  crew  and  charterers.    As  there  cannot  be  two  superiors  at 


26" 


T  both 


rcise  anv  ^' 


ry  hire-^  ants  a  boat  and 

•assengc  .v  .  v:ceived  the  fares  c...  .  , 

the  boat  ent  the  crew  and  paid  them.    ■ 

•:  a  passch,^,.  r,  went  on  board  for  the  purpose  ui 
ininrpH  wlu'le  therf'  bv  the  breskinf  of  snmp  of  the 


mts.  an  the  cause  of  ti 

..  .heta.^'.  ',.^K.r.i      T]u^  ,-• 

ous  to 

mucn  'jri>e  t) 

737)  1^  I  was  a 


tne  pi: 


1     COr^',.:     :   : 

horse  and  . 

f  the  driver,  a.ui  a  ouit 


-.1.  lil'UU. 

who  St. 


I  or  couiu 


«-:\V..Li!  .vILUI 

the  dock  .i 


the  defenda 
•  the  boat 
Highland, 
:k.     Ih  ers  adve? 

'   1  :i>^      ,  control  ' 

ue  adventure.    Ti 
iv.turn  of  the  boat  tu 
When  the  boat  was 


.  .--uriea.  .  The 

.e  rail  and  was 

The  boat  was  stopped 


uiniiiT  \\a-=  ivtv- 


i 


'■at  the  plaiaLiti 

lo  do  and  that 

a  presumption  of 

^-  's  in  use  for  the 

in  this  case  bv 


'^0  any  uiit. 
.'se  it  charter 
mid  not  escape  iiabili 

■;,-;i   .-n'l  ■.(  i1  *■}-'  -■   it,?M 

the  boat.  1 

0  boat  and  all  h 
n  her  earnings  during  ; 

.s    I'irrcf 'r;-    on  actual  l 

ihe  {X)ss< 

■1  ner.    Wli 

■;  adoption  a 


>  107  N.  Y.  21  i 

'.Tew  ai 


PERSONAL  INJURY.  267 

the  same  time,  the  defendant  is  reheved  from  the  position  if  our  con- 
clusion is  correct. 

In  the  case  of  Blake  v.  Ferris  (5  N.  Y.  48)  the  doctrine  of  respond- 
eat superior  received  the  fullest  exposition,  and  the  teaching  of  the 
case  is  adverse  to  the  plaintiff  here.  It  was  there  decided  that  the 
immediate  employer  of  the  servant,  through  whose  negligence  an 
injurs-  occurred,  was  personally  responsible  therefor,  and  that  rule 
is  in  accordance  with  reason  and  justice  when  applied  to  this  case. 
The  defendant  surrendered  the  boat  and  crew  to  Mink  and  Burnett, 
and  during  the  continuance  of  the  charter  party  they  exercised  abso- 
lute authority  over  both ;  so  far  as  the  crew  was  concerned,  they 
were  subject  to  the  orders  of  Mink  and  Burnett.  It  was,  therefore, 
their  duty  to  prevent  the  molestation  of  the  passengers  by  the  crew, 
and  there  was  none  other  who  could.  The  defendant  had  no  super- 
intendent or  other  person  on  board  to  exercise  any  supervision  or 
care,  and  as  it  was  destitute  of  power  it  should  be  held  free  from  re- 
sponsibility. The  appellant  has  referred  to  an  English  case  where 
the  lessee  of  a  ferry  hired  from  the  defendants  a  boat  and  crew  for 
one  day  to  carry  passengers  across.  He  received  the  fares  and  paid 
the  defendant  for  the  boat.  They  sent  the  crew  and  paid  them.  The 
plaintiff,  who  was  a  passenger,  went  on  board  for  the  purpose  of 
crossing,  and  was  injured  while  there  by  the  breaking  of  some  of  the 
tackle  by  the  negligence  of  the  crew,  and  the  court  permitted  a  re- 
covery. It  appeared  in  that  case,  however,  that  the  crew  was  con- 
trolled by  the  defendants,  and  beside  that,  the  cause  of  the  injury 
was  the  breaking  of  the  tackle  belonging  to  the  boat.  The  case  is  not 
sufficiently  analogous  to  this  to  render  it  authoritative.  There  are 
several  English  cases  much  like  this.  In  the  case  of  Milligan  v. 
Wedge  (12  Ad.  &  El.  737)  the  defendant,  who  was  a  butcher,  em- 
ployed a  drover  to  drive  an  ox  to  his  slaughter  house ;  the  drover 
employed  a  boy  to  drive  the  ox,  and  he  permitted  it  to  run  into 
the  show-room  of  the  plaintiff,  where  he  caused  damage.  The  de- 
fendant had  the  verdict,  which  was  sustained  on  appeal.  In  Quar- 
man  v.  Burnett  (6  M.  &  W.  497)  the  defendants  owned  a  carriage 
and  hired  a  pair  of  horses  and  driver  to  draw  it  for  a  short  time, 
during  which  the  horse  and  chaise  of  the  plaintiff  was  injured  by 
the  carelessness  of  the  driver,  and  a  suit  was  brought  against  the 
defendants. 

The  plaintiff  obtained  the  verdict,  and  the  judge  reserved  the  right 
to  move  for  a  non-suit,  and  upon  that  motion  the  decision  was  that 
the  defendants  were  not  liable,  and  a  verdict  was  entered  in  their 
favor.  The  opinion  in  that  case  contains  the  following  language : 
"That  person  is  undoubtedly  liable  who  stood  in  the  relation  of  mas- 
ter to  the  wrongdoer,  he  who  had  selected  him  as  his  servant  from 
the  knowledge  of  or  belief  in  his  skill  and  care,  and  who  could  re- 
move him  for  misconduct,  and  whose  orders  he  was  bound  to  receive 


268  LIABILITY   TO  THIRD   PERSONS. 

and  obey.  *  *  *  'Q^i  the  liability  by  virtue  of  the  principle  of 
relation  of  master  and  servant  must  cease  where  the  relation  itself 
ceases  to  exist,  and  no  other  person  than  the  master  of  such  servant 
can  be  liable  on  the  simple  ground  that  the  servant  is  the  servant  of 
another,  and  his  act  the  act  of  another." 

In  the  cases  of  Robinson  v.  Corbett  (9  M.  &  W.  709)  ;  Allen  v. 
Haywood  (7  Ad.  &  El.  960),  the  facts  were  similar  to  the  others, 
and  the  decisions  were  to  the  same  effect.  In  the  case  of  Langley 
V.  Pointer  (6  M.  &  W.  697),  which  was  similar,  the  judges  were 
divided  upon  the  question. 

The  only  English  case  which  supports  the  contention  of  the  plain- 
tiff is  Bush  V.  Steinman  (i  Bos.  &  Pul.  404),  but  that  case  has  been 
overruled  and  repudiated  both  in  England  and  this  country  and  is  no 
longer  entitled  to  any  respect.  (Blake  v.  Ferris,  5  N.  Y.  62;  Hill- 
yard  V.  Richardson,  3  Gray  349.)  This  last  case  is  very  instructive^ 
and  the  facts  were  these : 

The  defendant,  who  was  the  owner  of  a  building  by  the  road- 
side, entered  into  a  written  contract  with  one  Shaw  to  alter  the  build- 
ing into  a  dwelling  house,  and  to  furnish  all  materials  necessary 
therefor.  Shaw  procured  some  boards  and  sent  them  by  a  teamster, 
who  acted  under  his  direction,  to  the  place  for  use  there,  and  the 
teamster  piled  them  up  by  the  side  of  the  road.  In  a  short  time 
thereafter  the  plaintiff  was  riding  along  the  road,  when  his  horse 
became  frightened  by  the  boards  and  bolted  from  his  course,  and 
the  plaintiff  was  thrown  from  his  wagon  and  injured.  The  plain- 
tiff obtained  a  verdict  which  was  set  aside  in  an  elaborate  opinion 
which  held  the  defendant  free  from  liability,  and  concluded  with 
these  words : 

"Viewing  this  as  a  question  not  of  authority,  but  to  be  determined 
by  the  application  to  these  facts  of  settled  principles  of  law,  upon 
what  principle  can  the  defendant  be  held  responsible  for  this  injury? 
He  did  not  himself  do  the  act  which  caused  the  injury  to  the  plain- 
tiff ;  it  was  not  done  by  one  acting  by  his  command  or  request ;  it  was 
not  done  by  one  whom  he  had  the  right  to  command,  over  whose 
conduct  he  had  the  efificient  control,  whose  operations  he  might  di- 
rect, whose  negligence  he  might  restrain. 

"It  was  not  an  act  done  for  the  benefit  of  the  defendant  and  from 
the  doing  of  which  an  implied  obligation  for  compensation  would 
arise.  It  was  not  an  act  done  in  the  occupation  of  land  by  the  de- 
fendant or  upon  land  to  which,  upon  the  facts,  he  had  any  title." 

These  words  apply  with  equal  force  to  this  case  and  are  decisive 
of  this  appeal. 

The  judgment  should  be  affirmed  with  costs. 

Pratt,  J.,  concurred  ;  Brown,  P.  J.,  not  sitting. 

Judgment  affinned,  with  costs.^ 

^  Compare  Donovan  v.  Construction  Syndicate,  L.  R.  i  Q.  B.  D.  629.    See 


PERSONAL  INJURY.  200 


1872.     Supp'-ME  C'^vn  Ri.     50 

Appeal  from  S" 

J.  WiCKHAM,  1 

The  defense  S'.'.     m.-  is   v^:\i  r^.'^  sMr-iinipj"!   v."-:is  - 
oitr?e  of  hi<  em. i^Ovment,   and   I'hat  the   m?>^ler 


y  or  the  course  oi  the  eir; 
:-      ..    expressly  forbidden;  alsc   ..,,. 
i-he  principle  of  law  holding  the  master  i 

1  it,  -trvant  or  a^r-'-    ■'  '?  on  the  grc '   '' 

d  not  do  an  act  b.i,  cause  it  to 

:  i*s  to  -■  rd  per^Oiis.     liv.. 

J  done  .  rvant  while  not 

.  nor  does  it  reach  wrongs  caused  !>> 

-  -  -  of  an  act  not  directed  by  the  master, 

scope  of  the  agency  or  the  course  of  the  employ- 

v-M.  yn  ..  ,  iiit.     (i  Am.  Lead.  Cas.  619.) 

A  master  is  not  liable  for  any  act  or  omission  of  his  servants  which 

ith  the  business  in  \\ '  '  '     "  "  im,  and  does 

•  cot^rse  of  '■^'=■.1'"  on;  id  the  sc*"-'"*? 

..s  ally  or: 

-.    ■•        ^    ^     -    -       -ol.6^- 
,  Bank,  17  Mo.  510;  Douglas  v. 

rvant  ca'     ' -  ■" -'uthorized  -•- 

the  m.'.  ster,  in 


■  ivaiii,  ii   . 

Lut  was  , 

^ter;  and  if  wrong  be  done  : 

•    master,  and  not  for  the  1 

lis  business,  the  master  i:, 

287;  Howe  V,  Newmark, 
4.)     It  w-"??  the  dntv  of  th*' 
act  cor' 
the  serv 
Wend.  343,  345 ;  1  uiler 

-.    ...  -ui-    ->-:.,..  :..   TJ-1J .,      .  1 I 


268 

aiKl  ■  the  principle  of 

i.  '^msU  •  ,.;vic  the  relation  it>=  '^ 

exi>it,  ;i  •  le  master  of  such  ser*: 

is  the  servant  of 

in  the  cast  .bett  (^9  M.  &  W.  709)  ;  Allen  v. 

ilayvvoo'l   '-  .   facts  were  similar  to  the  oth'^'-v 

and  the  ,e  effect.     In  the  case  of  Lar> 

V.  P'  '-  iijch  was  similar,  the  judges  wei'. 

divi 

A  Is  the  contention  of  the  p!-    ' 

tiff  i.  404),  but  that  case  has  f 

ovt  >  .1:-  :■;  I i  this  country  and  i^ 

^■■•''r  ''l:xwc  V.  I'UTis,  5  N.  Y.  62;  U;.. 

This  last  case  is  very  instructive. 

ailding  by  the  road 

Lracl  vv;  aw  to  alter  the  bi'- '^ 

nd  to  t  .1  materials  neces> 

1  sent  them  by  a  teani 

,  >-     -.  for  use  there,  and  .   - 

ne  side  <  id.     In  a  short  tim^ 

"iding  aluL-   u,c  road,  when  his  horse 

i.rds  and  bolted  from  his  course,  and 
■  n  his  wagon  and  injured.     The  plr " 

was  ^et  aside  in  an  elaborate  opir-  . 
ee  from  liability,  and  concluded  with 

not  of  authority,  but  to  be  deternr' 
-■    ^-  cts  of  settled  principles  of  law,  i: 

what  pri  I  ;nt  be  held  resuonsible  for  this  inj ; 

He  did  no:  ■  ,'  :  ■  :.,^  injury  to  the  pi. 

tiff;  it  wasp  "d  or  request ;  it 

over  w; 
he  might 

-  "--  .--  ...  w.  w.v  v.i-fendant  and  1 

•.;■  of  ^Nh  jtion  for  compensation  wf 

i<"«n  of  land  by  the 
iie  had  any  title." 
.do  app.  ills  case  and  are  decisive 

of  :  ;! 

The  juugn  iih  costs. 


1 


Pratt,  J.,  c.  ,av-;-fi; 

Judgment  afh-. 


R.  I  Q.  B.  D.  629.    See 


PERSONAL  INJURY.  269 

GARRETZEN  v.  DUENCKEL. 
1872.     Supreme  Court  of  Missouri.     50  Mo.   104. 

Appeal  from  St.  Louis  Circuit  Court, 

J.  WiCKHAM,  for  appellant. 

The  defense  set  up  is  that  the  salesman  was  not  acting  in  the 
course  of  his  employment,  and  that  the  master  is  not  liable  for 
damages  resulting  from  an  injury  caused  by  the  carelessness  or 
negligence  of  the  servant,  in  the  performance  of  an  act  not  within 
the  scope  of  the  agency  or  the  course  of  the  employment  of  the  serv- 
ant, and  which  was  expressly  forbidden ;  also  that  there  was  no 
negligence.  The  principle  of  law  holding  the  master  liable  for  the 
acts  of  his  servant  or  agent,  rests  on  the  ground  that  the  master 
should  not  do  an  act  himself,  or  cause  it  to  be  done,  with  such 
negligence  or  want  of  skill  as  to  injure  third  persons.  This  princi- 
ple does  not  reach  a  wrong  done  by  the  servant  while  not  engaged 
in  the  business  of  his  master ;  nor  does  it  reach  wrongs  caused  by 
negligence  in  the  performance  of  an  act  not  directed  by  the  master, 
or  not  within  the  scope  of  the  agency  or  the  course  of  the  employ- 
ment of  the  servant,     (i  Am.  Lead.  Cas.  619.) 

A  master  is  not  liable  for  any  act  or  omission  of  his  servants  which 
is  not  connected  with  the  business  in  which  they  serve  him,  and  does 
not  happen  in  the  course  of  their  employment.  Beyond  the  scope 
of  his  authority  the  servant  is  as  much  a  stranger  as  any  other  per- 
son. (Schouler  Dom.  Rel.  638;  Sherman  &  R.  Negl.  64,  71 ;  id.  yy, 
§  63;  Foster  v.  Essex  Bank,  17  Mo.  510;  Douglas  v.  Stephens,  18 
Mo.  336,  367.)  No  servant  can,  by  an  unauthorized  act  of  his,  raise 
a  presumption  against  the  master ;  the  master,  in  such  case,  is  no 
more  liable  to  such  a  presumption  than  a  stranger.  The  law  will  not 
infer  authority  to  commit  a  trespass ;  and  in  order  to  hold  the  master 
liable  for  a  trespass  committed  by  a  servant,  it  is  necessary  to  show 
that  the  act  was  done  while  the  servant  was  acting  under  the  au- 
thority of  the  master ;  and  if  wrong  be  done  by  a  servant  without 
the  authority  of  his  master,  and  not  for  the  purpose  of  executing 
his  orders  and  doing  his  business,  the  master  is  not  liable.  (Church 
V.  Mansfield,  20  Conn.  287 ;  Howe  v.  Newmark,  12  Allen,  52 ;  Mali 
V.  Lord,  39  N.  Y.  384.)  It  was  the  duty  of  the  plaintiff  to  show 
affirmatively  that  the  act  complained  of  was  within  the  scope  or 
course  of  the  duty  of  the  servant.  Wilson  v.  Peverly,  2  N.  H.  548 ; 
Wright  V.  Wilcox,  19  Wend.  343,  345 ;  Tuller  v.  Voght,  13  111.  285 ; 
McManus  v.  Crickett,  i  East,  67.) 

The  only  authority  presumed  by  law  is  to  do  all  lawful  acts  be- 
longing to  his  employment,  and  the  specific  instructions  of  the  mas- 
full  discussion  of  the  cases  on  this  point  in  Baldwin  v.  Abraham,  57  App.  Div. 
(N.  Y.)  67. 


270  LIABILITY   TO   THIRD   PERSONS. 

ter  determine  the  limits  of  the  employment  and  scope  of  the  duty  of 
the  servant ;  no  master  is  chargeable  with  the  acts  of  his  servant  but 
w^hen  they  are  done  in  the  execution  of  the  authority  given  him. 
When  the  servant  oversteps  his  authority  he  becomes  as  a  stranger, 
and  the  act  not  having  been  done  in  the  service  of  the  master,  or 
w^ithin  the  limits  of  his  authority,  but  contrary  to  his  express  and 
specific  instructions,  it  was  wilful,  and  the  master  is  not  liable, 
(Oxford  V.  Peters,  28  111.  435;  Harris  v.  Nicholas,  5  Mumf.  489; 
Wright  V.  Wilcox,  19  Wend.  345  ;  Armstrong  v.  Cooley,  5  Gill,  512; 
Joel  V.  Armstrong,  25  Eng.  Com.  Law,  512;  McKeon  v.  Citizens' 
Railway  Co.,  42  Mo.  87-8.) 

The  cases  of  Joel  v.  Morison,  6  Carr.  &  P.  510,  and  Sleath  v. 
Wilson,  9  Carr.  &  P.  607,  cited  by  respondent  in  support  of  the 
proposition  that  it  is  immaterial  whether  the  act  complained  of  was 
done  in  disregard  of  the  orders  of  the  master,  have  been  overruled 
by  late  authorities.  (Mitchell  v.  Crassweller,  13  C.  B.  237;  16  Eng. 
L.  and  Eq.  448,  451;  Story  v.  Ashton,  Law  R.  4  Q.  B.  476,  479; 
Bard  v.  Yohn,  26  Penn.  St.  482.) 

Jecko  &  HosPES^  for  respondent. 

The  master  is  responsible  for  the  acts  of  his  servant,  done  in  the 
general  scope  of  his  employment  and  in  pursuit  of  his  master's  busi- 
ness, and  it  is  immaterial  whether  the  particular  act  causing  the  in- 
jury was  done  in  disregard  of  the  general  orders  or  specific  com- 
mands of  the  master.  (Joel  v.  Morrison,  6  Carr.  &  P.  510;  Cleath 
V.  Wilson,  9  Carr.  &  P.  607 ;  Limpus  v.  London  General  Omnibus 
Co.,  I  Hurlst.  &  Col.  526;  Croft  v.  Alison,  4  B.  &  Aid.,  6  Eng.  Com, 
L.  R. ;  Seymour  v.  Greenwold,  7  Hurl.  &  Nev.  355.)  The  rule 
of  respondeat  superior,  or  that  the  master  shall  be  civilly  liable  for 
the  tortious  acts  of  his  servant,  is  of  universal  application,  whether 
the  act  be  one  of  omission  or  commission,  whether  negligent,  fraudu- 
lent or  deceitful.  If  it  be  done  in  the  course  of  his  employment  the 
master  is  liable ;  and  if  it  makes  no  difference  that  the  master  did  not 
authorize  or  even  know  of  the  servant's  act  or  neglect,  or  even  if  he 
disapproved  or  forbade  it,  he  is  equally  liable  if  the  act  be  done  in 
the  course  of  the  servant's  employment.  (Philadelphia  &  R.  R.  R, 
Co.  V.  Derby,  14  How.  486 ;  Southwick  v.  Estes,  7  Carl.  385 ;  Lut- 
trell  V.  Hazen,  3  Snead.  20 ;  Pennsylvania  R.  R.  Co,  v.  Vandivier,  42 
Penn.  St.  365 ;  Oxford  v.  Peters,  28  111.  434 ;  Howe  v.  Newmark,  12 
Allen,  Mass.,  52-3.) 

Wagner^  Judge,  delivered  the  opinion  of  the  court. 

This  was  an  action  against  the  defendant  for  damages  caused  by 
a  wound  inflicted  on  the  plaintiff  by  the  firing  of  a  gun  by  a  sales- 
man who  was  in  the  employ  of  the  defendant.  The  record  shows 
that  at  the  time  of  the  happening  of  the  injviry  the  defendant  was 
the  keeper  of  a  gun  and  ammunition  store ;  that  one  Brewer  was  his 
servant,  employed  by  him  in  selling  arms  and  ammunition ;  and  that, 
upon  the  occasion  of  the  injury,  the  defendant  being  absent,  Brewer 


PEBSONAL  INJURY.  J/) 

le  of  Henry's  patent  to  a  cusi  •  o  requested 

m  order  that  he  •  \  '    and  re- 

■  less  it  was  done.  stating 

mijst  his  orders  to  1  ^  -■ 

:  making  the  sale  he  \ 
m,  and  in  doing  so  it  was 
,.  was  sitting  at  a  window  in 
street.     The  defense  was  that, 
■^nn  was  against  the  orders  and  n; 
er  was  acting  outside  of  the  scope 
iant  was  not  bound.    This  defense  vv. 
.1  a  verdict  for  the  '^In'r^ifF.  and  the 
1. 

-ally  recognized  r-„.  .  j.  principal  is 

^■■:t,  fraud,  or  other  wrcmgtui  act  of  his  :u 
;•,  employment,  though  the  principal  did  not  auiiv 
but  the  liability  is  only  for  acts  committed  in  til- 
's employment.     A  master  is  not  responsible  tor  . 
1  of  his  servant  which  is  not  connected  with  the  bus: - 
ihey  serve  him,  though  in  general  he  is  responsible  for 
'    which  they  execute  his  orders,  and  for  their  negli- 
i.ing  means  by  which  the  orders  are  to  be  carried  out. 
■g  whether  a  particular  act  is  done  in  the  course  of  a 
ioyment,  it  is  proper  first  to  inquire  whether  the  serv- 
time  engaged  in  se;    '       '      master.     If  the  act  w.v- 
servant  was  at  liber  ^.is  service,  and  pursn'    . 

\  ely,  there  can  ihcii  be  no  questi 
■       ibie,  even  thr>f-ii  t'lc  injuries  cr 
e  been  comniitt'  'ie  facili: 

elations  to  his  i.  _ ^...arman  iX 

It  may  not,  perhaps,  be  very  easy 
-  "n  this  subject,  but  we  think  th 
iced  from  them  will  be  found 
cited  and  r-  ■  or  the  a- 

,  io6.     But  i  -Jon  re- 

i;  trespass  and  trespass  c  ^Id 

That  case  only  decided  .mis 

1st  the  master  for  the  wilful  ;s  serv- 

i:  authorized  or  conser*    '  *  r  either 

ication,  from  the  na;  -  of  the 

'^'ing  the  judgment,  says;     "Who  nt 

which  he  is  employed,  and,  ,v- 

ulers.  pursues  that  which  h'  '.-o 

.  longer  ;n-t-:  in  pursuance  of  the  auth- 
'     the  doctrine  of  Lord  Holt  his  m 
h  an  act."    But  he  adds  that  "t: 


ici    (.nji  ■>  1  111- lie    li:..  .uC   (iliCV    Ol 

the  servant;  no  )•  -  servant  but 

•  litn  they  are  <  '  i:;:iven  him. 

'.  icii  the  serv?^"  >  stranger, 

and  the  act  -  laster,  or 

within  the  1'  ',aess  and 

specific  inst  not  liable. 

(Oxford  v  Muraf.  489; 

Wright  .  5  Gill,  512; 

Joel  ■■  )i  \'    Citizens' 

Rai^ 

'y  u.  i'.  510,  and  Sleath  v. 

W-'  -   otident  in  support  of  the 

\>:-r  the  act  complained  of  was 

c  c  master,  have  been  overruled 

hv  weller,  13  C.  B.  237;  16  Enj;. 

r'  r  ^,..  T.;>     .   r\    m     a-^a     ,-A 


servant,  done  in  th^' 
'nd  in  parjuit  of  his  master's  busi 
the  ra'rticitlar  act  causing  the  in 
i  'iers  or  specific  co-: 

.     ..irr.  &  P.  510;  Clc  ' 
,  i^ondon  General  Omni : 

.viison,  4  B.  &  Aid.,  6  Eng".  O. 
r  Hurl.  &  Nev.  355.)     The  r 
e  master  sliall  be  civilly  liable 
of  universal  application,  who? 
I  dssion,  whether  negligent,  frar> 
the  course  of  his  employment 
diflference  that  the  master  did 
"it's  act  or  neglect,  or  even  it 
iv  liable  if  the  act  be  don< 
I...-  U.     (Philadelphia  &  R.  R 

<^^  k  V.  Estes,  7  Carl.  385;  '■ 

iiiaR.  R.  Co.  V.  Vandi 


.\}1' 


434;  Howe  V.  Nevvn> 


.  of  the  coujc. 
adant  for  damages  causer 

...■  (ii/ni?:  of  a  gun  by  • 
:  ■;■  i.i:v..     The  recov. 
tliai  at  I  -injury  the  d'.  ' 

the  keep'-  ;  that  one  Br. 

servant,  emy  .nd  ammunitv 

Tliii"vr;    {"ht^  nc.  i;n:i    !:''iiU'>-  :)!• 


PERSONAL  INJURY.  27I 

was  showing  a  rifle  of  Henry's  patent  to  a  customer,  who  requested 
to  have  it  loaded,  in  order  that  he  might  see  how  it  worked,  and  re- 
fused to  buy  it  unless  it  was  done.  Brewer  at  first  refused,  stating 
that  it  was  against  his  orders  to  load  firearms  in  the  store,  but  for 
the  purpose  of  making  the  sale  he  was  finally  persuaded  and  induced 
to  load  the  gun,  and  in  doing  so  it  was  discharged  and  shot  the 
plaintiff,  who  was  sitting  at  a  window  in  a  house  on  the  opposite 
side  of  the  street.  The  defense  was  that,  inasmuch  as  the  act  of 
loading  the  gun  was  against  the  orders  and  instructions  of  the  de- 
fendant, Brewer  was  acting  outside  of  the  scope  of  his  employment 
and  the  defendant  was  not  bound.  This  defense  was  overruled,  and 
the  jury  found  a  verdict  for  the  plaintiff,  and  the  case  is  brought 
here  by  appeal. 

The  universally  recognized  rule  is  that  a  principal  is  civilly  liable 
for  the  neglect,  fraud,  or  other  wrongful  act  of  his  agent  in  the 
course  of  his  employment,  though  the  principal  did  not  authorize  the 
specific  act ;  but  the  liability  is  only  for  acts  committed  in  the  course 
of  the  agent's  employment.  A  master  is  not  responsible  for  any 
act  or  omission  of  his  servant  wdiich  is  not  connected  with  the  busi- 
ness in  which  they  serve  him,  though  in  general  he  is  responsible  for 
the  manner  in  which  they  execute  his  orders,  and  for  their  negli- 
gence in  selecting  means  by  which  the  orders  are  to  be  carried  out. 
In  determining  whether  a  particular  act  is  done  in  the  course  of  a 
servant's  employment,  it  is  proper  first  to  inquire  whether  the  serv- 
ant was  at  the  time  engaged  in  serving  his  master.  If  the  act  was 
done  while  the  servant  was  at  liberty  from  his  service,  and  pursuing 
his  own  ends  exclusively,  there  can  then  be  no  question  that  the 
master  is  not  responsible,  even  though  the  injuries  complained  of 
could  not  have  been  committed  without  the  facilities  afforded  by 
the  servant's  relations  to  his  master.  (Shearman  &  R.  Negl.,  §  63 
and  notes.)  It  may  not,  perhaps,  be  very  easy  to  reconcile  the 
numerous  cases  on  this  subject,  but  we  think  that  the  correct  rule 
extracted  and  deduced  from  them  will  be  found  as  above  laid  down. 

The  leading  case  cited  and  relied  on  for  the  appellant  is  McManus 
V.  Crickett,  i  East,  106.  But  that  decision  rested  entirely  upon  the 
distinction  between  trespass  and  trespass  on  the  case  under  the  old 
forms  of  pleading.  That  case  only  decided  that  trespass  z'i  et  annis 
would  not  lie  against  the  master  for  the  wilful  trespass  of  his  serv- 
ant, which  was  not  authorized  or  consented  to  by  the  master  either 
directly  or  by  implication,  from  the  nature  or  subject-matter  of  the 
employment. 

Lord  Kenyon,  in  giving  the  judgment,  says:  "When  a  servant 
quits  sight  of  the  object  for  which  he  is  employed,  and,  without  hav- 
ing in  view  his  master's  orders,  pursues  that  which  his  own  malice 
suggests,  he  no  longer  acts  in  pursuance  of  the  authority  given  him, 
and  according  to  the  doctrine  of  Lord  Holt  his  master  will  not  be 
answerable  for  such  an  act."     But  he  adds  that  "this  doctrine  does 


2/2  LIABILITY   TO   THIRD    PERSONS. 

not  at  all  militate  with  the  case  in  which  a  master  has  been  holden 
liable  for  the  mischiefs  arising  from  the  negligence  or  unskilfulness 
of  his  servant,  who  had  no  purpose  but  the  execution  of  his  mas- 
ter's orders,"  but  that  the  form  of  such  action  must  be  case  and 
not  trespass. 

The  opinion  contains  nothing  which  bears  upon  this  intermediate 
case  of  a  servant  who  does  not  "quit  sight  of  the  object  for  which 
he  is  employed"  but  for  the  purpose  of  executing  his  master's  or- 
ders, and  in  the  course  of  his  employment,  does  an  act  injurious  to 
another,  or  in  disregard  of  his  rights. 

A  few  cases  may  be  cited  as  illustrative  of  the  principle,  to  show 
the  turning  point  of  responsibility  on  the  part  of  the  master. 

In  the  case  of  McClenaghan  v.  Brock,  5  Rich.  Law,  17,  plaintiff's 
slave  was  on  board  a  steamboat  as  a  passenger,  and  the  second  engi- 
neer of  the  boat,  by  negligently  discharging  a  gun,  wounded  him 
while  he  was  upon  a  lighter  alongside  of  the  steamboat,  and  it  was 
held  that  the  captain  was  not  responsible.  The  engineer,  it  will  be 
seen,  was  not  acting,  in  the  discharge  of  the  gun,  in  any  duty  con- 
nected with  his  employment.  He  was  doing  something  on  his  own 
account,  independent  of  his  business  with  the  boat. 

In  the  case  of  Mali  v.  Lord,  39  N.  Y.  381,  the  plaintiff  was  in 
defendant's  store  purchasing  goods,  the  defendant  was  absent  at  the 
time,  and  the  superintendent  and  clerks  suspecting  the  plaintiff  of 
having  stolen  goods,  called  in  a  policeman  and  had  her  searched ;  no 
goods  were  found  upon  her.  She  then  brought  her  action  for  dam- 
ages, and  the  court  decided  that  as  the  act  was  done  without  the 
knowledge  or  the  express  or  impHed  authority  of  the  proprietor  or 
owner,  the  master  was  not  liable ;  that  the  servant  was  not  impliedly 
authorized  by  his  master  to  do  that  which  the  master  himself,  be- 
ing present,  would  not  be  authorized  to  do.  The  selling  of  goods, 
which  was  the  only  power  conferred  upon  the  servants,  had  nothing 
to  do  with  the  matter  of  making  arrests  for  supposed  offenses. 

In  McKenzie  v.  McLeod,  10  Bing.  385,  the  servant  was  employed 
to  light  fires  in  the  house,  and  she  lighted  furze  and  straw  with  a 
view  to  clean  a  chimney  that  smoked,  and  in  doing  so  the  house 
caught  fire  and  was  burned  up.  The  servant  was  cautioned  against 
the  danger  of  such  a  proceeding,  and  it  was  shown  that  it  was  no 
part  of  her  duty,  but  that  carpenters  and  masons  were  employed  to 
cleanse  the  chimney,  and  that  they  had  recently  performed  that  work 
in  the  presence  of  the  servant.  Under  these  circumstances  it  was 
left  to  the  jury  to  say  whether  the  servant  was  acting  within  the 
scope  of  her  duty;  and  the  jury  having  found  for  the  defendant,  the 
court  refused  to  grant  a  new  trial.  This  case  is  criticized  by  the 
authors  of  the  treatise  on  negligence,  and  they  declare  that,  although 
the  principle  may  be  sound,  it  may  well  be  doubted  whether  the  jury 
did  not  err  in  finding  that  the  act  was  not  within  the  scope  of  the 
servant's  general  or  ostensible  authority. 


T  in  the 
'.!j:^truct' 
r.  T-.  in 


to  have 
.f  the 


ided  It,  yet  he  is  re  for  consequent i 

the  negligence   and   >_,,■  .  .  sness  of  the   ser- 
'siness  of  his  employer,  another  receives  an  in; 
'limself  be  lia'  '  action  <'  ' 

^  for  the  <"'"'  il  dania 

3.T  that  the 
*)"•"  an  iniiui 


m  lurttierance 


to  another,  t 


effect  is  the  cent  case  of  Minter 

o.  503,  where  wc  iickl  chat  if  a  ?  1  the 

his  master's  order,  and  by  his  m\  njiiry 

arty,  the  master  will  be  responsible,  although  the  serv- 
s  not  necessary  for  the  proper  'v-t'-rmance  of  '  ■'^  ''''v-^- 
V,  or  w^as  even  contrary  to  hi  order. 


.-.  Alison,  4  B.  8 
distinction  is  t 
purpose 
!(1  pror'-- 
n  order 


K),  the  vOiirt  of  Kings    • 
I  servant  drivinpf  a  rnrri': 


carele^ 


-fi  s  iic 
,.  hi,-.-., 

Luit,  an 
-  .^..    Aid  a  v.- 
.  Greenwoo  ; 


^aron 


r  tiuit  1 


militate  w 

lial.lo  for  the  miscl; 

'  servant,  wh-, 

•  ders,"  but  ' 


tiers,  ana 

'in;  .1  ni»f      r. 


..-  !!een  holdeii 

'  :e  or  unskilfulness 

\.;vccution  of  his  mas- 

lion  must  be  case  and 

•?rs  iioon  this  intermediate 

which 

■,;  '-'s  or- 

nt,  does  an  act  mjurious  to 

ve  of  the  principle,  to  show 

part  of  the  master, 

.  5  Rich.  Law,  17,  plaintiff's 

'  ''  ■  i  engi- 

.  :d  him 

at,  and  it  was 

^  ..  ,.aeer,  it  will  be 

gun,  in  any  duty  con- 

M.ig  something  on  his  own 

'  the  boat. 

'iff  was  in 
•ent  at  the 
■     ^tiff  of 
led;  no 
She  then  brought  her  action  for  dam- 
'  -'^    ':-:  the  act  was  done  without  the 
1  authority  of  the  proprietor  <:' 
.  .  mat  Vr  t;  was  not  implied! 

th^t  wl  .  /laster  himself,  K  - 

•'I  to  do,     J< 
:  upon  the  se' 

•  ests  for  supposed  offenses, 
■^S,  the  servant  was  employe  i 
ed  furze  and  straw  witli 
;;  oNcv,.  and,  in  doing  so  the  housr 
The  servant  was  cautioned  against 
'    wn  that  it  was  no 
^^•ere  employed  t<' 
'  that  wcr 
i  ices  it  v, 
servant  was  acting  within  t: 
'     found  for  the  defendant,  • 
lis  case  is  criticized  by  » 


itliin  the  scope  ol 


PERSONAL  INJURY.  273 

Douglas  V.  Stephens,  18  Mo.  362,  was  an  action  for  damages  to 
the  goods  of  the  plaintiff  in  the  cellar  of  his  store,  alleged  to  have 
been  caused  by  the  obstructions  of  a  sewer  b}^  the  servants  of  the 
defendants  ;  and  Scott,  J.,  in  delivering  the  opinion  of  the  court,  said  : 
"Although  a  master  is  not  liable  in  trespass  as  principal  for  the  un- 
lawful and  directly  injurious  act  of  his  servant  unless  he  has  com- 
manded it,  yet  he  is  responsible  for  consequential  damages  where 
by  the  negligence  and  carelessness  of  the  servant  in  doing  the 
business  of  his  employer,  another  receives  an  injury  for  which  the 
servant  would  himself  be  liable  in  an  action  of  trespass.  To  make 
the  master  liable  for  the  consequential  damages  resulting  from  the 
trespass  of  the  servant,  it  must  appear  that  the  servant  was  in  the 
course  of  his  employment,  and  that  by  an  injudicious  or  negligent 
or  unskilful  act  done  in  furtherance  of  his  master's  business  the  in- 
jury resulted  to  the  plaintiff.  But  if  the  servant,  wilfully  and  to 
effect  some  design  of  his  ov/n,  does  an  injury  to  another,  the  master 
will  not  be  liable." 

To  the  same  effect  is  the  more  recent  case  of  Minter  v.  Pacific 
R.  R.,  41  Mo.  503,  where  we  held  that  if  a  servant  is  acting  in  the 
execution  of  his  master's  order,  and  by  his  negligence  causes  injury 
to  a  third  party,  the  master  will  be  responsible,  although  the  serv- 
ant's act  was  not  necessary  for  the  proper  performance  of  his  duty 
to  his  master,  or  was  even  contrary  to  his  master's  order. 

In  Croft  V.  Alison,  4  B.  &  Aid.  590,  the  court  of  King's  Bench 
say  that  "the  distinction  is  this :  If  a  servant  driving  a  carriage  in 
order  to  effect  some  purpose  of  his  own,  wantonly  strikes  the  horses 
of  another  person  and  produces  the  accident,  the  master  will  not  be 
liable.  But  if,  in  order  to  perform  his  master's  orders,  he  strikes, 
but  injudiciously  and  in  order  to  extricate  himself  from  a  difficulty, 
that  will  be  negligent  and  careless  conduct  for  which  the  master  will 
be  liable,  being  an  act  done  in  pursuance  of  the  master's  employ- 
ment." The  case  showed  that  the  defendant's  servant  had  wilfully 
struck  the  plaintiff's  horses  while  driving  his  master's  carriage,  in 
order  to  extricate  himself  from  an  entanglement  of  the  carriages, 
occasioned  by  his  own  fault,  and  thereby  had  caused  an  injury  to 
the  plaintift''s  carriage,  and  a  verdict  for  the  plaintiff  was  supported. 

In  Seymour  v.  Greenwood,  6  Hurl.  ,&  Norm.  359,  Chief  Baron 
Pollock  asks  the  question,  "Suppose  a  servant  driving  along  a  road, 
in  order  to  avoid  a  danger,  intentionally  drove  against  the  carriage 
of  another,  would  not  the  master  be  responsible?"  And  in  Limpus 
V.  London  General  Omnibus  Company,  i  Plurlst.  &  Col.  526,  it  was 
decided  in  the  exchequer  chamber  that  the  master  is  responsible  if 
the  servant  is  in  the  course  of  doing  the  master's  work  and  does  the 
act  to  accomplish  it. 

In  a  recent  well-considered  case  in  Massachusetts,  after  a  review  of 
18 — Reinhard  Cases. 


274  LIAniLITY   TO  THIRD   PERSONS. 

the  authorities,  the  court,  speaking  through  Hoar,  J.,  lays  down  the 
doctrine  as  follows  :  "In  an  action  of  tort  in  the  nature  of  an  action  on 
the  case,  the  master  is  not  responsible  if  the  wrong  done  by  the  serv- 
ant is  done  without  his  authority,  and  not  for  the  purpose  of  execut- 
ing his  orders  or  doing  his  work.  So  that  if  the  servant,  wholly  for 
a  purpose  of  his  own,  disregarding  the  objects  for  which  he  is  em- 
ployed, and  not  intending  by  his  act  to  execute  it,  does  an  injury  to 
another  not  within  the  scope  of  his  employment,  the  master  is  not 
liable.  But  if  the  act  be  done  in  the  execution  of  the  authority  given 
him  by  his  master,  and  for  the  purpose  of  performing  what  the  mas- 
ter has  directed,  the  master  will  be  responsible,  whether  the  wrong 
done  be  occasioned  by  negligence  or  by  a  wanton  or  reckless  pur- 
pose to  accomplish  the  master's  business  in  an  unlawful  manner." 
(Howe  V.  Newmark,  12  Allen  49.) 

This  exposition  of  the  law  fully  coincides  with  the  previous  rul- 
ings of  this  court.  The  true  ground  upon  which  a  master  avoids 
responsibility  for  most  of  the  wilful  acts  of  his  servants,  when  im- 
authorized  by  him,  is  that  they  are  not  done  in  the  course  of  the 
servant's  employment.  When  they  are  so  done,  the  master  is  liable 
for  them.  Tested  by  those  principles,  the  conclusion  in  this  case  is 
inevitable.  Brewer,  the  servant,  was  unquestionably  aiming  to  exe- 
cute the  order  of  his  principal  or  master.  He  was  acting  within  the 
scope  of  this  authority  and  engaged  in  furtherance  of  his  master's 
business.  There  is  no  pretense  that  he  was  endeavoring  to  do  any- 
thing for  himself.  He  was  acting  in  pursuance  of  authority,  and 
trying  to  sell  a  gun,  to  make  a  bargain  for  his  master,  and  in  his 
eagerness  to  subserve  his  master's  interests  he  acted  injudiciously 
and  negligently.  It  makes  no  difference  that  he  disobeyed  instruc- 
tions. Innocent  third  parties  who  are  injured  in  consequence  of  his 
acts  cannot  be  affected  thereby.  The  instructions  of  the  court  fairly 
submitted  the  question  of  negligence  to  the  jury,  and  are  not  ob- 
noxious to  any  reasonable  objection.  The  court  committed  no  error 
in  ruling  out  the  evidence  offered  by  the  defendant  for  the  purpose 
of  showing  that  the  act  of  loading  or  charging  guns  in  a  store  is  no 
part  of  "the  business  of  selling  the  same.  If  we  admit  that  the  serv- 
ant did  an  unauthorized  act,  the  evident  truth  still  remains  that  it 
was  done  wholly  in  carrying  out  and  executing  his  master's  business, 
and  in  such  a  case  the  master  will  be  held  liable.  When  the  servant 
acts  in  the  course  of  his  employment,  although  outside  of  his  instruc- 
tions, the  master  will  be  held  responsible  for  his  acts. 

I  see  no  error  in  the  record,  and  with  the  concurrence  of  the  other 
judges  the  judginent  will  be  affirmed.^ 

^  "The  general  rule  may  now  be  said  to  be  that  a  master  is  responsible  for 
the  torts  of  his  servant,  done  with  a  view  to  a  furtherance  of  the  master's 
business,  whether  the  same  be  done  negligenth'  or  wilfully,  but  within  the 
scope  of  his  agency.     The  fact  that  the  servant,  in  committing  the  tort,  may 


COIJRI  OF  ApPE- 

rom  judgment  of  the  general  term  of  the 

A  New  Yorl:.    •-  "  ■ '  •■""n  an  or:'.  •  ■ ■ 

affirmed  a  ;  avor  of 

-  •  •  ■  .  526.) 

damage  . 

^:d   oil   c; 

^1:  -^  -         -.  „  L  iree  time: 

last  tri;i!,  iMe  jury  rendered  a  verdict  for  the  plains 

T-       ■    'c-nce  of  the  plaintiff  showed  that  on  jcu-: 
V  '  ^  a  boy  eight  years  old.  he  jumped  on  the 

?  lird  or  fourth  car  from  the  engine,  of  a  tr- 

;  ,:  as  proceeding  up  Eleventh  avenue  at  a  s, 

hour.     After  he  had  gone  a  few  blocks  he  was  k 
(•;  by  a  conductor  or  brakeman  employed  on  the  train, 

J-  his  leg  under  the  hind  wheel  of  the  car,  it  was  crushed. 

1  by  one  Vogel,  who  gave  important  testimony  for  the 
'"  was  taken  to  a  police  station  and  then  to  the  hospital  , 

as  amputated.    There  was  a  sharp  conflict  of  testi 
1  points,  pani'^nhrly  in  regard  to  the  fact  of  the 
mony  o;  ig  to  show  that  the  v 

I  off  the  •  ^  other  boys  vrho  '••- 

The  most  im;  taken  1 

'•'^  -allowance' b\  , .  of  a  que- 

a  by  plainti-  f  Cross,  tht 

ch  the  accid>  and  an  " 

-if  he  was  ;  a  of  To 

•ndant,  to  whicii  he  auswereo    ' 
the  records  of  the  police  st;. 
h  the  plaintiff  was  taken  soor 
T.  r-    ,.n,.ii-int.     The  author;.. 

n  has  not  been  expt 
%  !.»)•,     (  Isaacs  V.  The  Third  Ave.  :\ 
V.  Freeman,  .^3  id   ^66:  Hi.tghes  v   >.' 
222 ;  W 
id  cxec'ui 

^  the  empioymei  r.     (8  T. 

cs  V.  Third  Ave  ...  ...■         '^'    •     ■■ 

;.  R.  R.  Co.,  70  'ohen  v 

mention  of  the  pLiiuuu  -.■    :  ^'  '" 
and  the  court  should  n 

%  or  even  disobeye 

1    ■,,  '-;,.i;ii.  ,-    \u 


as  folloA 


ployed)  and 
another  not 
liable.    But 

him  by  I: ' 
ter  has 

doi^ 


i;'.-'.-!i,   J,,    i,i_v  ^  u  (.."■">  1 J    im 

/  the  nature  of  an  action  or 

'   •  ■•  by  the  serv- 

se  of  exec  11 1- 

il  Liic  sei  vanl,  wholly  fc>- 

jects  for  which  he  is  eii^ 

eciite  it,  does  an  injti 

. .....ioyment,  th€  master  io  ^j  ' 

cecution  of  the  authority  givei 
-  •  '/;  f'  ■  ■■  J':'-  what  the  m- 
. .      i.er  the  \\  r 
ov  by  a  wautou  or  reckless  pur 
i-u'^inc'^s  in  an  unlawful  manner. 


acts  can 

submit; 

ji'Xxions 

11'  . 

of    , 

parCui 

ihe 

nat  did 

nn 

was  do^' 

and  in 

acts  in 

,    A'ith  the  previous 
und  upon  which  a  master  a\ 
"■       '       -   '^is  servants,  when  m 
in  the  course  of  th; 
'ic  master  is  >'  ' 
';)n  in  this  en - 
ly  aiming  to  exc 
acting  within  th'- 
-r-  of  his  master'^ 
.-    --.,,  ciiu^avoring  to  do  any 
1  pursuance  of  authority,  an. 
for  his  master,  and  in  hi 
.  ts  be  acted  injudicious!; 
'>3yed  instrut 
.     _.  1    cquence  of  hi 
instructions  of  the  court  fair!  ■ 
...  c  to  the  jury,  and  are  not  ob 
n.    The  court  committed  no  errc 
'  .   t  for  the  pu' 
3  in  a  store  < 
:  '  the  seiv 
■■  .i    :■    .r'.nis  that  r 
xecuting  his  master's  business 
'  niable.    W^hen  the  servani 
Mgh  outside  of  his  instruc- 
) '.-  tor  his  acts. 
1)  the  concurrence  of  the  other 


i:c  juu 


th^: 


ill'.    '.viMi;::    ctx,: 
the  tort,  may 


■  PERSONAL  INJURY.  275 

HOFFMAN  V.  NEW  YORK,  ETC.,  RAILROAD  CO. 
1881.     Court  of  Appeals  of  New  York.     87  N.  Y.  25. 

Appeal  from  judgment  of  the  general  term  of  the  superior  court 
of  the  city  of  New  York,  entered  upon  an  order  made  December  6, 
1880,  which  affirmed  a  judgment  in  favor  of  plaintiff  entered  upon 
a  verdict.     (Reported  below  14  J.  &  S.  526.) 

This  action  was  brought  to  recover  damages  for  personal  injuries 
suffered  by  the  plaintiff  frbm  being  kicked  off  defendants'  cars  by 
an  employe  of  defendant.  It  has  been  three  times  tried,  and  on  the 
last  trial,  the  jury  rendered  a  verdict  for  the  plaintiff"  for  $5,000. 

The  evidence  of  the  plaintiff  showed  that  on  January  21,  1869, 
when  he  was  a  boy  eight  years  old,  he  jumped  on  the  front  step  of 
a  car,  the  third  or  fourth  car  from  the  engine,  of  a  train  of  defend- 
ants' that  was  proceeding  up  Eleventh  avenue  at  a  speed  of  about 
ten  miles  an  hour.  After  he  had  gone  a  few  blocks  he  was  kicked 
off  the  step  by  a  conductor  or  brakeman  employed  on  the  train,  and 
falling  with  his  leg  under  the  hind  wheel  of  the  car,  it  was  crushed. 
Accompanied  by  one  Vogel,  who  gave  important  testimony  for  the 
plaintiff,  he  was  taken  to  a  police  station  and  then  to  the  hospital, 
where  his  leg  was  amputated.  There  was  a  sharp  conflict  of  testi- 
mony on  several  points,  particularly  in  regard  to  the  fact  of  the 
kicking,  the  testimony  of  defendant  tending  to  show  that  the  plain- 
tiff was  knocked  off  the  step  by  the  rush  of  other  boys  who  jumped 
on  with  him.  The  most  important  exceptions  taken  by  the  defend- 
ant were  to  the  allowance  by  the  trial  judge  of  a  question  asked  on 
cross-examination  by  plaintiff's  counsel  of  Cross,  the  conductor  of 
the  train  on  which  the  accident  occurred,  and  an  important  witness 
for  the  defense, — if  be  was  not  a  grandson  of  Cornelius  \''anderbilt, 
president  of  defendant,  to  which  he  answered  that  he  was ;  and  to 
the  exclusion  of  the  records  of  the  police  station  in  regard  to  the 
accident,  to  which  the  plaintiff  was  taken  soon  after  he  was  hurt. 

Samuel  Hand,  for  appellant.  The  authority  to  remove  a  tres- 
passer from  a  train  in  motion  has  not  been  expressly  or  impliedly 
given  to  the  conductor.  (Isaacs  v.  The  Third  Ave.  R.  R.  Co.,  47  N. 
Y.  122;  Frazer  v.  Freeman,  43  id.  566;  Hughes  v.  N.  Y.  &  N.  H. 
R.  R.  Co.,  4  J.  &  S.  222;  Wright  v.  Wilcox,  19  Wend.  343.)  The 
act  in  its  inception  and  execution  was  wholly  illegal,  and  entirely  in- 
dependent of,  and  outside  the  employment  of  the  conductor.  (8  T. 
R.  299;  2  Salk.  641 ;  Isaacs  v.  Third  Ave.  R.  R.  Co.,  47  N.  Y.  122; 
Peek  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  70  id.  587 ;  Cohen  v.  D.  R.  R. 
Co.,  69  id.  173.)  The  intention  of  the  plaintiff  to  tell  the  truth  was 
a  sharp  issue  in  the  case,  and  the  court  should  not  have  expressed 

have  exceeded  his  actual  authority,  or  even  disobeyed  his  express  instructions, 
does  not  alter  the  rule."   Mitchell,  J.,  in  Smith  v.  Munch,  65  Minn.  256,  261. 


276  LIABILITY   TO   THIRD    PERSONS. 

an  opinion  in  regard  to  his  truthfulness.  (Meyer  v.  Clark,  45  N.  Y, 
285.)  Jurors  cannot  distinguish  between  a  direction  in  a  matter  of 
law  or  fact,  and  the  direction  of  the  court  in  regard  to  matters  of 
fact  should  be  advisory.  (Allis  v.  Leonard,  58  N.  Y.  288;  Watson 
V.  Gray,  4  Keyes  385.) 

Nelson  Smith,  for  respondent. 

The  master  is  responsible  for  the  wrongful  act  of  his  servant, 
where  the  servant  was  acting  within  the  general  scope  of  his 
authority,  although  he  acted  negligently,  improperlv  or  reck- 
lessly. (Rounds  V.  D.,  L.  &  W.  R.  R.  Co.,  64  N.  Y'  129;  Hig- 
gins  V.  Watervliet  T.  &  R.  Co.,  46  id.  23 ;  Rounds  v.  D.,  L.  &  W. 
R.  R.  Co.,  3  Hun  329,  5  T.  &  C.  475 ;  Cohen  v.  Dry  Dock,  E.  B. 
&  B.  R.  R.  Co.,  69  N.  Y.  170-3;  Limpus  v.  General  Omnibus  Co., 
I  Hurlst.  &  Colt.  528;  Wood's  M.  &  S.  585 ;  Shea  v.  Sixth  Ave.  R. 
R.  Co.,  62  id.  180;  Peck  V.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  6  T.  &  C 
(Sup.  Ct.)  436.)  When  the  act  of  the  servant,  assuming  it  to  have 
been  properly  performed,  is  one  which  the  master  himself,  if  present, 
might  have  done,  it  will  be  presumed  that  it  was  an  act  within  the 
scope  of  the  servant's  authority,  and  the  burden  of  proof  of  want  of 
authority  rests  upon  the  master.  (Jackson  v.  Second  Ave.  R.  R. 
Co.,  47  N.  Y.  274;  Rounds  v.  D.,  L.  &  W.  R.  R.  Co.,  64  id.  129 ;  Gar- 
retzen  v.  Duenckel,  50  Mo.  104;  Oliver  v.  Northern  Transportation 
Co.,  3  Ore.  84;  Poulton  v.  The  L.  &  S.  W.  R.  Co.,  L.  R.  2  Q.  B. 
534;  Brennan  v.  Fairhaven  &  W.  R.  R.  Co.,  45  Conn.  284.)  The 
rules  of  a  corporation  are  supposed  to  continue  until  they  are  shown 
to  have  been  repealed,  (i  Greenl.  on  Ev.,  §§  41,  42,  43.)  When  a 
judge  expresses  an  opinion  on  the  evidence  an  exception  will  not  lie, 
but  the  party  must  ask  him  to  submit  it  to  the  jury.  (3  Wait's  Pr. 
178,  205;  Winne  v.  McDonald,  39  N.  Y.  233;  Dows  v.  Rush,  28 
Barb.  157;  Carnes  v.  Piatt,  6  Rob.  270;  Mallory  v.  Tioga  R.  R.  Co., 
36  How.  202;  s.  c.  I  Trans.  App.  203 ;  3  Keyes  354.) 

A  general  exception  to  a  judge's  refusal  to  charge  is  unavailing. 
(Ayrault  v.  Pacific  Bank,  47  N.  Y.  570;  Decker  v.  Matthews,  12  N. 
Y.  313;  Kluender  v.  Lvnch,  4  Keves  351 ;  Caldwell  v.  Murphy,  11 
N.  Y.  416.) 

Andrews,  Ch.  J. — The  jury  have  found  that  the  plaintiff  was 
kicked  from  the  car  while  in  motion,  by  the  conductor  or  brakeman. 
Tliere  was  a  very  sharp  conflict  of  evidence  upon  this  question.  The 
testimony  of  the  conductor  and  brakeman,  and  of  a  bystander, 
tended  strongly  to  show  that  neither  the  conductor,  nor  brakeman 
touched  or  said  anything  to  the  plaintiff,  and  that  he  and  other  boys 
jumped  off  the  platform  of  the  car  as  the  brakeman  came  out  of  the 
door. 

It  is  not  claimed  that  the  finding  of  the  jury  upon  this  issue  is  un- 
supported by  evidence  and  the  point  is  not  raised  by  any  exception, 
but  it  is  insisted  that  the  act  of  kicking  a  boy  from  a  car  while  in 


_   •  of  anv  • 
n  the  person  in  cb- 
and  wilful  act,  for  wi.  ,..  .,.„  ..  ^.^   ,.     .. 
ie  g^eneral  regulations  adopted  by  the  defe; 
''  the  transaction  'in  question,  the  co"  ' 
id  is  responsible  for  its  safe  an- 
other   servants    thereor; 
■rized  to  remove  from  th. 
iieir  fare,  or  are  drunk,  riotous,  or  un, 
re  that  in  exercising-  this  authority  he  i... 
sions  of  law.    The  only  provision  of  law 
section  35  of  the  General  Railroad  Act  ( ' 
o.'hich  provides  that  if  any  passenger  shall 
nail  be  lawful  for  the  or  to  put  him  ai,. 

*he  cars,  using  no  u;..  y  force,  at  any  u 

■ar  an}'-  dwelling-lioase,  on  stopping  the  train, 
ling  the  duties  of  brakem^n,  introduced  by  the    ., 
not  printed  in  the  case,  and  there  is  no  proof  before  us 
fic  authority  given  to  brakemen  to  remove  trespassers 
ir  s.     It  is  conceded  that  authority  in  a  conductor  to  re- 

H'  -passer  in  a  lawful  manner,  whether  conferred  b-      ' 

lu  is  implied,  and  is  incident  to  his  position.     We 

made  in  respect  to  the  authority  of  a 
■isser  on  the  platform  of  a.  cnr.     Tli- 
niariiy  pertain  to  the  protection  of  th 
.   .le  is  a  servant  o^  ^'•^^'  -^--r-,:r,r.r,--  r-,n  :: 
'■■'■■  management,  and  ^ 

v  ly  there 

!',  atid  a  tri.bpc.o-..ei-  was  put  off  b} 
■necessary  violence,  would  it  not  ; 
!st  him  for  the  assault  that  he  was  a  brakeman,  and 
Nned  of  in  ih-.f  r-.r,acity,  although  without  expi--Q-? 
lied  au  such  a  case  is  an  info 

e  busint;>:       ,      ■  5  actual  daily  ^ ■  -    - 

nation  and  experience.    But  2 
■nove  a  r 
.  r  when  . 
.;  or  notice  of  any  \  ooy  of  * 

>rm  of  a  car,  while _-  . .  ..   i-'n^nlT;- 

-d  of  ten  miles  an  hour,  he  can  be  said  to  be  actu 
>;'€  of  his  /^ r.n  J.  ,>,.-.,.-  i-   SQ  as  to  make  the  company  ; 
'  ■      Assuni  nade  by  the  plaintiff,  the  act 

'   t  is,  was  the  act 
Tf  it  was.  and  ■ 
ing  vvjut  he  did  ;-..,wcitook  to  act 


285.)     Jurors  cai 
:tct,  and 
^]i]  h^  afi 


in  a  matter  of 

'  ''  ■  Miatlers  of 
:  Watson 


The  1. 
where   tLv. 
authority,    aK 


.^3;    Kill: 

N.  Y.  416.) 

om  the 
s  a  verv 
of  tht 


■^il  uti  the  Pi 

li  IS  not  c! 
supported  b\ 
but  it  is  insisted  that 


wrongful  act  of  his  servant, 

la   the   general   scope   of   his 

:  -jently,    improperly    or    reck- 

i\.  R.  Co.,  64  N.  Y.  129;  Hig- 

,  t  id,  23;  Rounds  v.  D.,  L.  &  W. 

'  ;  Cohen  v.  Dry  Dock,  E.  B. 

;[)us  V.  General  Omnibus  Co., 

&  S.  585 ;  She.a  v.  Sixth  Ave.  R. 

C.  &  H.  R.  R.  R.  Co.,  6  T.  &  C 

E  the  servant,  assuming  it  to  have 

;"'•    ' 'er  himself,  if  present, 

ris  an  act  within  the 

of  proof  of  want  of 

Second  Ave.  R.  R. 

>.,  L.  ik  W.  R.  R.  Co.,  64  id.  129 ;  Gar- 

|;  Oliver  v.  Northern  Transportation 

le  L.  &  S.  W.  R.  Co.,  L.  R.  2  Q.  B. 

W.  R.  R.  Co.,  45  Conn.  284.)     The 

osed  to  continue  until  they  are  shown 

^§  41,  42,  43.)    When  a 

an  exception  will  not  lie, 

jiYUL  ii  lo  the  jury.     (3  Wait's  Pr. 

;9  N.  Y.  233;  Dows  V.  Rush,  28 

270;  Mallory  v.  Tioga  R.  R.  Co.. 

203;  3  Keyes  354.) 

■;^  refusal  to  charge  is  unavailing. 

570;  Decker  v,  Matthews,  12  N. 

•es  351;  Caldwell  y.  Murphy,  11 

found  that  the  plaintiff  was 
y  the  conductor  or  brakeman. 
(  nee  upon  this  question.  The 
.keman,  and  of  a  bystander, 
tlie  conductor,  nor  brakeman 
I,  and  that  he  and  other  boys 
1  he  brakeman  came  out  of  the 

'.e  jury  upon  this  issue  is  un- 

iiot  raised  by  any  exception, 

boy  from  a  car  while  in 


PERSONAL  INJURY.  277 

motion,  assuming  that  it  was  done  by  the  conductor  or  brakeman, 
was  not  within  the  scope  of  any  authority  conferred  by  the  defend- 
ant upon  the  person  in  charge  of  the  train,  but  was  an  illegal, 
wanton,  and  wilful  act,  for  which  the  employer  is  not  responsible. 

By  the  general  regulations  adopted  by  the  defendant,  in  force  at 
the  time  of  the  transaction  in  question,  the  conductor  has  charge  of 
the  train,  and  is  responsible  for  its  safe  and  proper  management, 
and  brakeman,  and  other  servants  thereon,  are  subject  to  his 
orders.  He  is  authorized  to  remove  from  the  car  persons  who  re- 
fuse to  pay  their  fare,  or  are  drunk,  riotous,  or  unruly ;  but  the  regu- 
lations declare  that  in  exercising  this  authority  he  must  be  governed 
by  the  provisions  of  law.  The  only  provision  of  law  on  the  subject 
is  found  in  section  35  of  the  General  Railroad  Act  (Laws  of  1850, 
chap.  140),  which  provides  that  if  any  passenger  shall  refuse  to  pay 
his  fare,  it  shall  be  lawful  for  the  conductor  to  put  him  and  his  bag- 
gage out  of  the  cars,  using  no  unnecessary  force,  at  any  usual  stop- 
ping place,  or  near  any  dwelling-house,  on  stopping  the  train.  The 
regulations  defining  the  duties  of  brakeman,  introduced  by  the  de- 
fendant, are  not  printed  in  the  case,  and  there  is  no  proof  before  us 
of  any  specific  authority  given  to  brakemen  to  remove  trespassers 
from  the  cars.  It  is  conceded  that  authority  in  a  conductor  to  re- 
move a  trespasser  in  a  lawful  manner,  whether  conferred  by  the 
rules  or  not,  is  implied,  and  is  incident  to  his  position.  We  think 
the  same  concession  must  be  made  in  respect  to  the  authority  of  a 
brakeman  who  finds  a  trespasser  on  the  platform  of  a  car.  His 
duties  do  not  primarily  pertain  to  the  protection  of  the  cars  against 
intruders ;  but  he  is  a  servant  of  the  company  on  the  train,  con- 
cerned in  its  management,  and  fully  cognizant  of  the  obvious  fact 
that  intruders,  who  jump  upon  the  train  for  a  ride,  without  inten- 
tion of  becoming  passengers,  are  wrongfully  there.  Suppose  a  train 
was  standing  still,  and  a  trespasser  was  put  off  by  force  by  a  brake- 
man,  using  no  unnecessary  violence,  would  it  not  be  a  good  defense 
to  an  action  against  him  for  the  assault  that  he  was  a  brakeman,  and 
did  the  act  complained  of  in  that  capacity,  although  without  express 
authority?  The  implied  authority  in  such  a  case  is  an  inference 
from  the  nature  of  the  business,  and  its  actual  daily  exercise,  accord- 
ing to  common  observation  and  experience.  But  assuming  authority 
in  the  conductor  or  brakeman  to  remove  a  trespasser  in  a  lawful 
manner,  the  question  remains,  whether  when  a  conductor  or  brake- 
man,  without  warning  or  notice  of  any  kind,  kicks  a  boy  of  eight 
years  from  the  platform  of  a  car,  while  the  train  is  running  at  a 
speed  of  ten  miles  an  hour,  he  can  be  said  to  be  acting  within  the 
scope  of  his  employment,  so  as  to  make  the  company  liable  for  the 
act.  Assuming  the  case  made  by  the  plaintiff,  the  act  was  flagrant, 
reckless  and  illegal ;  but  the  point  is,  was  the  act  within  the  scope 
of  the  employment  and  authority  ?  If  it  was,  and  the  servant  in  do- 
ing what  he  did  undertook  to  act  for  the  company,  and  not  for  him- 


278  LIABILITY   TO   THIRD   PERSONS. 

self  or  for  his  own  ends,  the  company  is  not  exonerated,  although 
the  servant  may  have  deviated  from  instructions  in  executing-  the 
authority,  or  may  have  acted  without  judgment,  or  even  brutally. 
The  removal  of  trespassers  from  the  cars  was,  as  we  hold,  within 
the  implied  authority  of  the  defendant's  servants  on  the  train.  The 
fact  that  they  acted  illegally  in  removing  the  plaintiff  while  the  train 
was  in  motion  does  not  exonerate  the  defendant.  In  some  cases, 
where  the  existence  of  an  authority  in  the  servant  to  do  a  particular 
act  is  in  controversy,  and  the  authority  is  sought  to  be  established  by 
inferences  and  implications,  it  may  be  a  material  circumstance  bear- 
ing upon  the  non-existence  of  the  authority  sought  to  be  implied, 
that  the  act  was  one  which  the  master  could  not  do  himself,  without 
a  violation  of  the  law.  But  this  fact  would  not  be  decisive.  No 
doubt  the  kicking  the  boy  off  the  car  was  not  only  a  wrong  to  the 
plaintiff,  but  was  a  violation  of  the  duty  which  the  train  servants 
owed  to  the  defendant,  to  exercise  proper  care  in  executing  the  au- 
thority confided  to  them;  but  in  most  cases,  where  the  master  has 
been  held  liable  for  the  acts  of  a  servant,  the  tortious  act  was  a 
breach  of  the  servant's  duty.  In  this  case,  the  authority  to  remove 
the  plaintiff  from  the  car  was  vested  in  the  defendant's  servants. 
The  wrong  consisted  in  the  time  and  mode  of  exercising  it.  For 
this  the  defendant  is  responsible,  unless  the  brakeman  used  his  au- 
thority as  a  mere  cover  for  accomplishing  an  independent  and 
wrongful  purpose  of  his  own.  The  general  subject  has  been  re- 
cently considered  in  this  court,  and  it  is  unnecessary  further  to 
elaborate  it.  (Higgins  v.  The  Watervliet  Turnpike  Co.,  46  N.  Y. 
23;  Rounds  v.  D.  L.  &  W.  R.  R.  Co.,  64  id.  129.)  We  think  the 
court  would  not  have  been  justified  in  taking  the  case  from  the 
jury,    *    *    * 

All  concur. 

Judgment  affirmed.^ 

^  In  Fulton  v.  Wilmington  Star  Mining  Co.,  133  Fed.  193,  a  statute  pro- 
vided that  no  one  could  be  employed  as  manager  of  a  mine  unless  he  had  ob- 
tained a  certificate  of  competency  from  the  state  board  of  examiners.  It  was 
held  that  this  statute  did  not  exempt  the  employers  of  a  licensed  manager 
from  liability  for  injuries  caused  by  the  manager's  negligence.  See  Durkin 
V.  Kingston  Coal  Co.,  171  Pa.  St.  193.  Compare  these  cases  with  Homer 
Ramsdell  Transportation  Co.  v.  La  Compagnie  Generale  Transatlantique,  182 
U.  S.  406,  in  which  it  was  decided  that  a  shipowner  is  not  liable  for  injuries 
resulting  from  the  negligence  of  a  pilot,  who  was  accepted  by  the  shipowner 
under  a  statute  compelling  the  employment  of  a  licensed  pilot. 


PER?.ONv.  279 


-ux:  r,\Tr-  AND  CI.  . 
TRIAL  sot 

1891.    Appellate  Court  c 

[rumtacker,  J. — This  action  m'ps  broiisfbt  bv  Bi- 
J:        ('ural  society  for 

...litted  upon  thp  pi.  ..     ..  .       - 

omplaint  was  in  two  paragraphs,  tht 
ance,  that  the  dr'"  •  ^  •■-'^  is  an  ag"'  • 
der  the  laws  of  i  .^xid  in 


.ipioy  ai  hU(  a  iair,  as  a  poiiceman  anu 

:,  whose  duty  was  to  '^/i^sr.r  1=;  peace  a  _  .   ., , 

those  who  were  not  j  admission,  and  to  e 

-re  disorderly;  that  p;..   .1  1.  iield  a  pass  entitling-  huu 
to  said  fair,  and  he  peaceably  entered  the  fair  gr. 
Uwfully  therein  the  "defendant's  said  em 
that  plp.'r!<ifT  had  not  entered  sa'd  fa'V  c^r 
■d  tiiai  It  to  be  ejected 

■  i  that  pi  ,0  right  of  entranc  :  ,-  ?, 

.in  effort  by  said  employe  to  exclude  the  plamtitt  from  said 
iinds,  said  employe  then  and  there  acting  as  such  employe/' 
;  any  cause  or  provocation  whatever,  assaulted  the  plaintift 
'  !  him  will        '  '  on  and  about  his  head  ai)' 

nentlv  <: 


jyment,  but  the  derendam  n^ 
......    I  investigating  his  fitness  or  q 

plaintiff  had  die  right  to  go  upon  th 

' :;lly  and  peac     '  '       ■  vrnpting  r     ' 

cause  or  pi  therefr 

■j 
i  ciuD  b  -  nose  was  oroken  and  he  was 


vas  overruled 


aintiff  and  assessed  1, 


St  paragrapl-i  cf  '■•■.inr.V^int  that 
complained  of  w  ?• 

.tine    '"•   •'""  '■"•' 


27S 


,  or  may  h 

1 11'.,  icuioval  of  tr-  -■ 
the  implied  autho. 
fact  that  they  act-: 
vvas  in  m':^tion  <' 
where  t'; 
act  is  in  : 
inferences  ai. 
ing  upon  t' 
that  the 
a  vi' 
dnu' 


-xonerated,  although 

--ons  in  executing  the 

irment,  or  even  brutally. 

was,  as  we  hold,  within 

rvants  on  the  train.    The 

;laintiff  while  the  train 

>:  'ant.     In  son^e  casfs 

•     ant  to  d.  liar 

:^    -.  •  ■■:,.;iit  to  be  e  i  by 

be  a  material  circumstance  bear- 

•  authority  sought  to  be  implied, 

■  ster  could  not  do  himself,  without 

fact  would  not  be  decisive.     No 

car  was  not  only  a  wrong  to  the 

he  duty  which  the  train  servants 

:  proper  care  in  executing  the  au- 

in  most  cases,  where  the  master  has 

of  a  servant,  the  tortious  act  was  a 

In  this  case,  tlie  authority  to  remove 

is  vested  in  the  defendant's  servants. 

■ime  and  mode  of  exercising  it.     For 

■  his  au- 

cnt   and 

'■■  he  general  subject  has  been  re- 

and  it  is  unnecessary  further  to 

Ihe  Watervliet  Turnpike  Co.,  46  N.  Y. 

R.  R.  Co.,  64  id.  129.)     We  think  the 

nstified  in  taking  the  case  from  the 


All  concur. 
Judgment  afiir; 


'  111  Fulton 
iU '.]  that  no 


ling  Co.,  133  Fed.   193,  a  statute  pro- 

-  manager  of  n  mine:  unless  he  had  ob- 

t;  '  d  of  examiners.    It  v.•Ll^^ 

'  of  a  licensed  manai.e. 


licensed  pilot. 


4 


PERSONAL  INJURY.  279 

THE  OAKLAND  CITY  AGRICULTURAL  AND  INDUS- 
TRIAL SOCIETY  V.  BINGHAM. 

1891.     Appellate  Court  of  Indiana.     4  Ind.  App.  545. 

Crumpacker,  J. — This  action  was  brought  by  Bingham  against 
the  agricultural  society  for  damages  resulting  from  an  alleged  as- 
sault committed  upon  the  plaintiff  by  a  servant  of  the  defendant. 

The  complaint  was  in  two  paragraphs,  the  first  of  which  alleges 
in  substance,  that  the  defendant  is  an  agricultural  society,  incorpo- 
rated under  the  laws  of  this  state,  and  in  August,  1890,  it  held  a  fair, 
at  which  agricultural  and  other  industrial  products  were  exhibited, 
and  to  which  the  general  public  were  invited ;  that  the  defendant  had 
in  its  employ  at  such  fair,  as  a  policeman  and  gatekeeper,  one  Willis 
Swallow,  whose  duty  was  to  preserve  peace  and  good  order,  and  to 
exclude  those  who  were  not  entitled  to  admission,  and  to  eject  those 
who  were  disorderly ;  that  plaintiff  held  a  pass  entitling  him  to  ad- 
mission to  said  fair,  and  he  peaceably  entered  the  fair  grounds 
thereon,  and  while  lawfully  therein  the  "defendant's  said  employe. 
Swallow,  pretending  that  plaintiff  had  not  entered  said  fair  grounds 
properly,  and  that  plaintiff  ought  to  be  ejected  therefrom  by  said 
employe,  and  that  plaintiff"  had  no  right  of  entrance  to  said  grounds, 
and  in  an  effort  by  said  employe  to  exclude  the  plaintiff  from  said 
fair  grounds,  said  employe  then  and  there  acting  as  such  employe," 
without  any  cause  or  provocation  whatever,  assaulted  the  plaintiff 
and  beat  and  bruised  him  with  a  club  on  and  about  his  head  and  face 
so  that  he  was  permanently  disabled. 

The  second  paragraph  alleges  that  said  Swallow  was  possessed  of 
a  "cruel  and  quarrelsome  disposition,"  which  unfitted  him  for  the 
duties  of  said  employment,  but  the  defendant  negligently  engaged 
him  therein  without  investigating  his  fitness  or  qualifications  there- 
for ;  that  the  plaintiff  had  the  right  to  go  upon  the  said  fair  ground, 
and  while  lawfully  and  peaceably  attempting  so  to  do  said  Swallow, 
"wholly  without  cause  or  provocation  therefor,  but  in  a  spirit  of  op- 
pressive malice  and  wantonness,  fell  upon  the  plaintiff  and  violently 
ejected  him  from  said  fair  ground,"  and  while  so  doing  assaulted 
and  beat  him  with  a  club  so  that  his  nose  was  broken  and  he  was 
otherwise  permanently  injured. 

A  demurrer  to  each  paragraph  of  the  complaint  was  overruled 
and  the  cause,  put  at  issue  by  the  general  denial,  was  tried  by  a  jury, 
who  found  for  the  plaintiff  and  assessed  his  damages  at  $275.  Judg- 
ment was  rendered  upon  the  verdict,  and  the  defendant  appeals  and 
assigns  for  error  the  ruling  upon  the  demurrer  to  each  paragraph  of 
complaint  and  in  refusing  a  new  trial. 

The  point  is  made  against  the  first  paragraph  of  complaint  that 
it  fails  to  show  the  assault  complained  of  was  perpetrated  by  the 
gate-keeper  while  he  was  acting  in  the  line  of  his  employment.     It 


28o  LIABILITY   TO  THIRD   PERSONS. 

is  insisted  with  much  persistence  and  plausibiHty  that  the  averments 
that  appellee  was  rightfully  upon  the  fair  ground,  and  was  orderly 
and  peaceable,  show  the  assault  was  not  committed  by  the  gate- 
keeper in  his  capacity  as  a  servant,  because  he  was  only  authorized 
to  eject  objectionable  persons,  and  the  pretext  that  appellee  was  ob- 
jectionable, being  without  foundation,  did  not  characterize  the  act 
as  one  for  which  the  appellant  was  responsible.  The  relation  of 
master  and  servant  existed  between  the  appellant  and  the  gate- 
keeper, to  which  relation  the  doctrine  of  respondeat  superior  ob- 
tains. A  master  is  responsible  not  only  for  the  omissions  and  short- 
comings of  his  servant,  but  for  positive  misfeasance  in  the  line  of 
duty.  Such  responsibility  is  founded  upon  the  theory  that  the  mas- 
ter authorized  the  wrong,  either  expressly  or  by  implication.  It  is 
a  fiction  of  the  law  that  the  master  is  always  present  in  the  conduct 
of  his  business,  and  any  wrong  committed  by  a  servant  while  so 
engaged,  though  tortious  and  malicious  in  its  character,  is  the  wrong 
of  the  master.  Authority  in  the  physical  absence  of  the  master  is 
often  implied  from  the  nature  of  the  employment  and  the  character 
of  the  act,  though  it  be  shown  to  have  been  in  violation  of  the  ex- 
press command  of  the  master.  But  the  application  of  this  principle, 
for  cogent  reasons,  extends  only  to  acts  properly  within  the  range 
of  the  employment.  A  master  does  not  stand  sponsor  for  the  de- 
portment of  one  in  his  service  except  while  he  is  actually  engaged 
about  the  master's  business.  It  is  very  difficult  in  some  cases  to  de- 
termine what  acts  are  to  be  imputed  to  the  master  and  what  not; 
but  where  the  servant  clearly  departs  from  his  employment,  and 
performs  an  act  for  some  purpose  of  his  own,  independent  of,  and 
not  connected  with,  the  master's  affairs,  the  latter  cannot  be  held 
liable  therefor. 

It  was  said  by  Lord  Kenyon,  in  McManus  v.  Crickett,  i  East  io6 : 
"When  a  servant  quits  sight  of  the  object  for  which  he  is  employed, 
and  without  having  in  view  his  master's  orders,  pursues  that  which 
his  own  malice  suggests,  he  no  longer  acts  in  pursuance  of  the  au- 
thority given  him,  and  according  to  the  doctrine  of  Lord  Holt,  his 
master  will  not  be  answerable  for  such  act." 

It  was  the  early  rule  that  the  master  could  not  be  held  for  the  wil- 
ful wrongs  of  the  servant,  even  in  the  line  of  the  employment,  but 
that  rule  has  been  quite  generally  discarded  by  the  modern  adjudi- 
cations. The  test  seems  to  be,  was  the  act  complained  of  done 
within  the  general  scope  of  the  employment,  and  with  a  view  of  ac- 
complishing some  end  thereof?  If  so,  the  employer  will  be  answer- 
able, though  the  act  be  ill-advised,  malicious,  and  against  his  express 
order.  Pittsburgh,  etc.,  R.  W.  Co.  v.  Kirk,  102  Ind.  399;  Phelon 
v.  Stiles,  43  Conn.  426 ;  Adams  v.  Cost,  62  Md.  264 ;  Howe  v.  New- 
march,  12  Allen  49;  Golden  v.  Newbrand,  52  Iowa  59;  Rounds  v. 
Delaware,  etc.,  R.  R.  Co.,  64  N.  Y,  129;  Quinn  v.  Power,  87  N.  Y. 
535 ;  Wood  Master  and  Servant,  pp.  593  and  594. 


?yl 


'.ill  not  be  i]. 

on  as  a  clo.i 

purpose,  IV 

...  .  lile,  etc.,  R.  i 

\i.  R.  Co.,  70  Ala 

naster  e^mploys  one  in  a  voci; 

n  conditions  and  to  his  ; 

when  and  what  '  ly  be  ne.' 

nsible  for  tl';  ^it,  as 'well  .: 

.  )t,  and  if  he  .  :'re  is  no  occa 

•ntending  to  accomplish  some  end  of  the  emp; 
bility  will  still  exist. 

ioctrine  is  applicable  to  the  case  in  judgment,  as  it  a:tjears 
.    gate-keeper  wns  autbori/;.',]   to  preserve  order  •; 
no  we^-e  not  rightiul';^^  -ipo-"  the  fair  ground,  and   . 

^  one  was  <i  or  was  wrongfully  upc-i 

have  been  <.•  d  to  him.     If,  in  the  exci 

•    judgment,  he  wrongfully  ejected  appellee  from  the  ground, 
fancied  violation  af  some,  rule  of  demeanor  so  excited  the 
•  per's  anger  that  he  inflicted  a  malicious  injury  in  attempting 
lorce  it      '        .ance,  th  "  '      Id  be  held  for  the  re- 

The  tl  under  (  Jns  an  averment  that 

^:trated  acting  as 

^ii  gener.  nt  to  any  <■ 

and  m  the  light  of  th  i  it  must  be 


Ucally  different  question  ari^n 

■  aint.    It  is  based  up'  '  v.\<-o.  ai- 

•ise  reasonable  care   !  on  of  ? 


ihose  u 
'anger  as  far  as  reasonal 


rht  to  n-. 


;  eerous 


onsible  tor  his  own  con^' 
r.    An  employer  cannot  1 
re  in  the  selection  of  a  ?; 
failure  to  di 
an  ininrv  1 


'Jl    tilC 


lUC    tlVCl  IllfUI.^ 


I  lee  was 
■  jaceable,  show 
r  in  his  rapacib 
to  eject  objec 
jectionable,  1, 
as  one  for  v 
master  and  Sv .  < 
keeper,  to  which 


viuty.  b-. 
ter  authr 
a  flc'' 


ad,  and  was  orderly 
'  '•  the  gate- 
>      ■  authorized 

'ee  was  ob- 
..  rtze  the  act 

,le.      Ihe  relation  of 
,.    L,.^   .li'jicllant  and  the  gate- 
;rine  of  respondeat  superior  ob- 
'     for  the  omissions  and  short- 
■  e  misfeasance  in  the  line  of 
.'on  the  theory  that  the  mas- 
sly  or  by  implication.     It  is 
\  IS  always  present  in  the  conduct 
.,   committed  by  a  servant  while  so 
: malicious  in  its  character,  is  the  wrong 
'he  physical  absence  of  the  master  is 
of  the  employment  and  the  character 
violation  of  the  ex- 
'">tT  of  this  principle, 
■\  the  range 
for  the  de- 
except  while  he  is  actually  engaged 
JL  is  very  difficult  in  some  cases  to  de- 
to  be  imputed  to  the  master  and  what  not ; 
'  '  departs  from  his  employment,  and 
iiose  of  his  own,  independent  of,  and 
he  latter  cannot  be  held 


It  was  said  ;  • 
"When  a  serv.-i 
and  without  h: 


nirircl'i,  12  All .  m 
Deiaw.-ire,  etc.,  K 


\ ;  anus  V,  Crickett,  i  East  106 : 

.:,^  ..,,cct  for  which  he  is  employed, 

master's  orders,  pursues  that  which 

'  nger  acts  in  pursuance  of  the  au- 

o  the  doctrine  of  Lord  Holt,  his 

ich  act." 

ter  could  not  be  held  for  the  wil-. 

line  of  the  employment,  but 

rded  by  the  modern  adjudi- 

ihe  act  complained  of  done 

iv.  vment,  and  with  a  view  of  ac- 

so,  the  employer  will  be  answer- 

nalicious,  and  against  his  express 

v.  Kirk,.  102  Ind.  399 ;  Phelon 

',  62  Md.  264;  Howe  v.  New- 

and,  52  Iowa  59;  Rounds  v, 

129;  Quinn  v.  Power,  87  N.  Y. 

:::i :-;  ur.A   '(1,1. 


PERSONAL  INJURY.  28l 

But  a  master  will  not  be  held  liable  for  the  act  of  a  servant  who 
employs  his  position  as  a  cloak  to  protect  him  in  the  prosecution  of 
a  purely  private  purpose,  unconnected  with  the  business  of  the 
former.  Evansville,  etc.,  R.  R.  Co.  v.  Baum,  26  Ind.  70;  Gilliam  v. 
South,  etc.,  R.  R.  Co.,  70  Ala.  268 ;  Rounds  v.  Delaware,  etc.,  R.  R. 
Co.,  supra. 

Where  a  master  employs  one  in  a  vocation  requiring  him  to  act 
under  certain  conditions  and  commits  to  his  discretion  the  duty  of 
determining-  when  and  what  action  may  be  necessary,  the  employer 
will  be  responsible  for  the  mis  judgment,  as  well  as  the  misconduct, 
of  the  servant,  and  if  he  acts  when  there  is  no  occasion  for  it  at  all, 
though  intending  to  accomplish  some  end  of  the  employment,  such 
responsibility  will  still  exist. 

This  doctrine  is  applicable  to  the  case  in  judgment,  as  it  appears 
that  the  gate-keeper  was  authorized  to  preserve  order  and  eject 
those  who  were  not  rightfully  upon  the  fair  ground,  and  the  duty 
of  judging  when  one  was  disorderly  or  was  wrongfully  upon  the 
ground  seems  to  have  been  committed  to  him.  If,  in  the  exercise 
of  such  judgment,  he  wrongfully  ejected  appellee  from  the  ground, 
or  if  a  fancied  violation  of  some  rule  of  demeanor  so  excited  the 
gate-keeper's  anger  that  he  inflicted  a  malicious  injury  in  attempting 
to  enforce  its  observance,  the  appellant  should  be  held  for  the  re- 
sult. The  paragraph  under  consideration  contains  an  averment  that 
the  gate-keeper  perpetrated  the  assault  while  acting  as  such,  and 
this  averment,  though  general,  is  not  repugnant  to  any  other  alle- 
gation, and  in  the  light  of  the  principles  noted  it  must  be  held  suf- 
ficient. 

A  radically  different  question  arises  upon  the  second  paragraph 
of  complaint.  It  is  based  upon  the  theory  that  appellant  was  bound 
to  exercise  reasonable  care  in  the  selection  of  a  gate-keeper,  and 
having  failed  to  do  so  it  should  be  answerable  for  the  wrongs  of  that 
functionary,  whether  they  occurred  in  the  line  of  his  employment 
or  not.  Every  person  owes  a  duty  to  those  upon  his  premises  law- 
fully and  by  his  invitation,  express  or  implied,  to  see  that  they  are 
not  exposed  to  danger  as  far  as  reasonable  care  and  vigilance  can 
protect  them. 

One  has  no  right  to  maintain  a  dangerous  pitfall  upon  his  prem- 
ises where  injury  is  likely  to  result  to  one  lawfully  thereon,  nor 
has  he  the  right  to  keep  a  ferocious  animal  likely  to  injure  those 
rightfully  upon  his  premises,  but  we  know  of  no  instance  in  which 
this  principle  has  been  applied  to  the  employment  of  servants.  Every 
sane  person  is  solely  responsible  for  his  own  conduct  except  where 
he  acts  for  or  with  another.  An  employer  cannot  be  held  to  account 
for  failing  to  exercise  care  in  the  selection  of  a  suitable  person  for 
a  given  position  unless  the  failure  to  discharge  the  duties  of  the 
position  properly  resulted  in  an  injury  to  another;  and  where  an 
injury  so  results,  the  employer  is  liable,  regardless  of  the  amount  of 


282  LIABILITY   TO   THIRD   PERSONS. 

care  he  may  have  used  in  the  selection  of  the  servant.  Counsel  for 
appellee  in  support  of  the  ruling  of  the  court  cite :  Chicago,  etc.,  R, 
W.  Co.  V.  Harney,  28  Ind.  28;  Ohio,  etc.,  R.  W.  Co.  v.  Collarn,  73 
Ind.  261  ;  Indianapolis,  etc.,  R.  W.  Co.  v.  Johnson,  102  Ind.  352 ; 
Lake  Shore,  etc.,  R.  W.  Co.  v.  Stupak,  108  Ind.  i. 

These  cases  have  no  application  whatever  to  the  question  under 
consideration.  They  relate  solely  to  the  duty  of  the  master  to  one 
servant  in  respect  to  the  employment  and  retention  of  co-servants, 
yet  they  are  all  grounded  upon  the  principle  that  the  master  is  re- 
sponsible only  for  misconduct  in  the  line  of  employment,  even  where 
he  negligently  employs  an  incompetent  servant. 

The  case  of  Sweat  v.  Rogers,  6  Heisk.  117,  was  an  action  for  dam- 
ages committed  by  two  slaves  owned  by  the  defendant  in  burning 
and  robbing  the  plaintiff's  storehouse.  The  complaint  alleged  that 
the  slaves  were  of  "bad  character  for  stealing  and  pilfering,"  and 
the  defendant  being  cognizant  of  their  character  and  habits  in  that 
respect,  allowed  them  to  go  abroad,  and  took  no  steps  to  prevent 
them  from  practicing-  their  pilfering  propensities.  The  complaint 
was  held  bad  because  the  wrong  complained  of  was  not  done  in  the 
line  of  duty  for  the  master. 

In  the  case  of  Curtis  v.  Dinneen  (Dak.),  30  N.  W.  Rep.  148,  the 
defendant  was  an  innkeeper  and  the  plaintiff  was  her  guest,  and 
sued  for  an  assault  and  battery  perpetrated  by  the  defendant's  serv- 
ant. The  complaint  did  not  show  that  the  servant  was  acting  in  the 
line  of  his  engagement  at  the  time  he  cornmitted  the  assault,  but  it 
alleged  that  he  "was  of  a  rough,  brutal,  passionate  and  ferocious 
disposition,"  and  was  in  the  habit  of  assaulting  and  beating  guests, 
which  the  defendant  well  knew,  but  negligently  retained  him  in  her 
service  in  and  about  the  inn  after  such  knowledge.  The  culpable 
servant  was  the  defendant's  husband,  and  while  the  court  expressed 
some  doubt  respecting  her  liability  for  failure  to  discharge  him  on 
that  ground,  it  was  also  declared  that  she  was  not  responsible  upon 
any  theory,  because  the  injury  was  not  inflicted  by  the  servant  while 
engaged  as  such.    See,  also,  McCann  v.  Tillinghast,  140  Mass.  327. 

We  know  of  no  principle  upon  which  the  paragraph  of  complaint 
in  question  can  be  upheld,  and  it  was  reversible  error  to  overrule  the 
demurrer  to  it. 

Complaint  is  also  made  of  the  action  of  the  court  in  refusing  to 
give  instructions  three  and  six,  requested  by  appellant. 

No.  3  was  substantially  covered  by  others  given,  so  no  available 
■error  occurred  in  refusing  it. 

No.  6  was  as  follows:  "If  you  find  from  the  evidence  that  the 
striking  and  beating  complained  of  were  done  by  one  Willis  Swal- 
low, a  servant  of  the  defendant  at  the  time  of  said  striking  and  beat- 
ing, and  said  servant  himself  was  without  fault  and  in  a  place  in 
which  he  had  a  right  to  be,  and  that  he  did  the  striking  and  beating 
of  the  plaintiff  in  the  honest  exercise  of  the  right  which  the  law  gave 


I  you  must  tind  for  the  defendant, 

:.    ..wider    -••'^■'•'    'Mr. -,-i-,c-  .;,,-.   ,    ,  ,    .,!,1    rir.; 

iendant. 

':vn  was  ieir^-ev!,  \^  c  are 
it  wa?  predicated  upon  ' 
> --native 
by  the  >^ 
;d.  143,  is  relied  upon  in  support  01 
true,  where  an  ii-i<''>  i.>  '-■■  is  sued  for  -r 
:   only  puts  in  it    •  act  of  the  p 

m.    So)i  '  >  an  affirmaii V  c  • 

I'cspass  advances  facts  ( 


s  by  construction  of  iaw  making  it  the  appehant 
iS  incumbent  upon  appellee  to  prove  not  only  the  c--: 
the  trespass,  but  that  it  was  committed  by  appellant's 
'       raged.    The  general  denial  put  ail  these  facts  in 
nee  was  admissible  thereunder  tending  to  dis- 
.5  or  to  prove  that  the  servant,  when  he  perpetrated 
Cf  for  appellant,     ^f  it  ^.vere  trne  that  appellee  a?- 
er  first  ok  to  defend 

.  ....  ...  .-;aged  in:...,.  .   ,'iained  of   '' 

imputation  of  author;  llant,  becaus' 

■     .Tite-keeper  was  ac  s  u     -1  I'/jself  -r--^   ■  *■ 
This  would  Ik-  a  cood  defense. 


as  comnuLieu  oy  i>,  auu  Uiu^ 
clearly  the  theory  of  the  in:: 
are  of  opinion  that  the  court  e 
!is  are  discussed  by  counsel,  '( 
'ey  will  not  likely  arise  at  zv  .■  will 

'        '      'a. 

iistructions  1 
i  paiag:  mplaint.^ 


■i.  Co.  V.  Wetmore,  19  Ohio  St.  no 


ay  have  used  in 
•1  support  of  the 

j6i  ;    IlK: 

Lake  Shore,  etc.,  ' 

■(t^rvaiii  in  re-.-: 
vet  thev  are  ; 


it-. 


i^ounsei  lor 
go,  etc.,  R. 
C<jllarn,  73 
.!  Ind.  3^,2- 

'■•i  the  master  to  one 
■id  retention  of  co-servants, 
iiciple  that  the  master  is  re- 
:  of  employment,  even  where 
-ervant. 
'>  Hei;5k.  117,  was  an  action  for  dam- 
owned  by  the  defendant  in  burning 
'^ehouse.    The  complaint  alleged  that 
icter  for  stealing  and  pilfering,"  and 
of  their  character  and  habits  in  that 
I'o  steps  to  prevent 
The  complaint 
not  done  in  the 


serv 


aeen  (Dak.),  30  N.  W.  Rep.  148,  the 

:tid  the  -''"''H"  ,^-35;  jig^  guest,  and 

.  perpeti  .le  defendant's  serv- 

;it  was  acting  in  the 

1  the  assault,  but  it 

■  ugh,  biuiai,  p.io.',iunate  and  ferocious 

abit  of  as.",?.n1tir;K"  and  beating  gfuests, 

V,  but  n<  retained  liim  in  her 

•  fter  sue..  ...,    ..edge.    The  culpable 

sband,  and  while  the  court  expressed 

ility  for  failure  to  discharge  him  on 

•d  that  she  was  not  responsible  upon 

•■-  not  infl"  lie  servant  while 

vm  v.  T^  140  Mass.  327. 

hich  the  paragraph  of  complaint 

.';  rev^TsiMc  :rror  lo  overrule  llic 


jctions 


■    (_)  was  a^   • 
V  uig  and  beat;' 
low,  a  servant  of  ; 
ing,  and  said  ser.:  :. 
which  he  had  a  right 
"  "^"^'e  plaintitt  ' 


d  by  appellant. 

>thers  given,  so  no  availabit 

from  the  evidence  that  the 
re  done  by  one  Willis  Swal- 
le  time  of  said  striking  and  beat- 
without  fault  and  in  a  place  in 
■:  he  did  the  striking  ^nd  beating 

'  £  -'■-■-.  ,-:  -,-i-'   ..  k;.,i    |.}^g  Yaw  gr;r:^ 


PERSONAL  INJURY.  283 

him  of  defending  his  own  person  against  an  unlawful  assault  upon 
him  by  the  plaintiff,  whereby  he  was  in  danger  of  suffering  great 
bodily  harm,  then  you  must  find  for  the  defendant,  because  a  beating 
of  the  plaintiff  under  such  circumstances  could  not  be  held  to  be  the 
act  of  the  defendant." 

This  instruction  was  refused,  we  are  informed  by  counsel,  upon 
the  ground  that  it  was  predicated  upon  the  defense  of  son  assault 
demesne,  and  that  being  an  affirmative  defense,  could  not  be  as- 
serted under  the  issues  created  by  the  general  denial.  Norris  v. 
Casel,  90  Ind.  143,  is  relied  upon  in  support  of  the  action  of  the 
court.  It  is  true,  where  an  individual  is  sued  for  an  assault  the  gen- 
eral traverse  only  puts  in  issue  the  fact  of  the  perpetration  of  the 
assault  by  him.  Son  assault  demesne  is  an  affirmative  defense,  which 
admits  the  trespass  complained  of,  but  advances  facts  to  justify  it. 

The  first  paragraph  of  the  complaint  in  the  case  before  us  charges 
an  assault  by  appellant's  servant  while  in  the  performance  of  duty 
as  such,  thus  by  construction  of  law  making  it  the  appellant's  as- 
sault. It  was  incumbent  upon  appellee  to  prove  not  only  the  com- 
mission of  the  trespass,  but  that  it  was  committed  by  appellant's 
servant  while  so  engaged.  The  general  denial  put  all  these  facts  in 
issue,  and  any  evidence  was  admissible  thereunder  tending  to  dis- 
prove the  trespass  or  to  prove  that  the  servant,  when  he  perpetrated 
it,  was  not  acting  for  appellant.  If  it  were  true  that  appellee  as- 
saulted the  gate-keeper  first  and  the  latter  undertook  to  defend  him- 
self,  and  while  so  engaged  inflicted  the  injury  complained  of,  it  would 
exclude  the  imputation  of  authority  from  appellant,  because  it  would 
show  that  the  gate-keeper  was  acting  for  himself  and  not  for  appel- 
lant at  the  time.  This  would  be  a  good  defense,  not  of  son  assault 
demesne,  but  that  it  was  not  appellant's  trespass.  If  A  is  sued  for 
an  assault,  he  may,  under  the  general  denial,  show  that  the  assault 
complained  of  was  committed  by  B,  and  thus  exclude  the  idea  of  his 
guilt.  This  was  clearly  the  theory  of  the  instruction  under  consid- 
eration, and  we  are  of  opinion  that  the  court  erred  in  refusing  it. 

Other  questions  are  discussed  by  counsel,  but  they  are  of  such  a 
character  that  they  will  not  likely  arise  at  another  trial,  so  we  will 
not  extend  this  opinion  to  decide  them. 

The  judgment  is  reversed,  with  instructions  to  sustain  the  de- 
murrer to  the  second  paragraph  of  complaint.^ 

^Accord:  Evansville  &  Terre  Haute  Co.  v.  McKee,  99  Ind.  519.  See  Wright 
V.  Wilcox,  19  Wend.  (N.  Y.)  343.  Compare  last  case  with  Mott  v.  Ice  Co., 
73  N.  Y.  543,  and  Levy  v.  Ely,  48  App.  Div.  (N.  Y.)  554. 

See  also  Little  Miami  R.  R.  Co.  v.  Wetmore,  19  Ohio  St.  no. 


284  LIABILITY    TO   THIRD    PERSONS. 

GOLDEN  V.  NEWBRAND  et  al. 
1879.     Supreme  Court  of  Iowa.     52  la.  59. 

Appeal  from  Mahaska  Circuit  Court. 

It  is  stated  in  the  petition  that  the  "defendants  unlawfully  wilfully 
and  maliciously  killed  David  Golden,"  and  this  action  is  brought  to 
recover  damages  caused  by  said  act.  The  answer  consisted  of  a 
general  denial.  There  was  a  trial  before  the  court.  On  the  con- 
clusion of  the  plaintiff's  evidence  the  defendants  moved  the  court  to 
exclude  all  evidence  introduced,  "because  it  was  incompetent,  im- 
material and  irrelevant,  and  failed  to  show  any  liability  on  the  part 
of  the  defendants."  The  motion  was  sustained  and  judgment  ren- 
dered for  the  defendants  for  costs.    The  plaintiff  appeals. 

Seevers,  J. — I.  At  the  proper  time  the  defendants  asked  the 
court  to  make  a  finding  of  facts.  As  this  was  not  done,  it  is  insisted 
this  constitutes  prejudicial  error.  If  no  competent  evidence  was  in- 
troduced, no  finding  of  facts  could  be  made.  The  theory  of  the 
court  was  that  no  fact  had  been  established  by  legitimate  evidence. 
The  case  stood  before  the  court  as  if  no  evidence  had  been  intro- 
duced. If  this  is  correct,  then  there  was  no  error  in  failing  to  make 
a  finding  of  facts. 

II.  Using  the  language  of  appellant's  counsel,  the  following  facts 
were  established :  "That  the  defendants,  ever  since  1876,  have  been 
owning  and  operating  a  brewery  in  the  city  of  Oskaloosa,  Iowa, 
under  the  firm  name  and  style  of  Blattner  &  Newbrand,  and  that 
Charles  Blattner,  during  all  that  time,  has  been  and  is  now  their 
superintendent,  managing  and  running  the  business,  and  that  one 
Max  Roenspeiss  during  all  that  time  has  been  and  is  now  a  hand  em- 
ployed in  the  business  there  under  the  control  of  Charles  Blattner, 
and  paid  his  wages  by  him  out  of  the  firm  moneys,  and  that  a  part  of 
his  business  was  to  guard  the  brewery,  and  he  slept  there  at  night 
for  that  purpose,  and  that  there  was  a  revolver  kept  there  by  the  firm, 
and  Roenspeiss  had  access  to  it  and  slept  with  it  under  his  pillow  at 
night ;  that  defendants  were  engaged  in  the  business  of  manufactur- 
ing and  selling  beer,  and,  like  all  beer  saloons,  rows  were  likely  to 
occur,  and  Roenspeiss  was  empowered  to  protect  the  property  and 
to  quell  disturbances,  and  worked  there  in  the  business  generally. 

"In  the  afternoon  of  the  day  David  Golden  was  killed,  he  and  his 
brother  were  there  drinking  beer,  and  got  kicked  out  of  the  brew- 
ery. Afterwards,  about  supper  time,  they  went  back  to  the  brewery 
and  drank  some  more  beer,  and  being  a  little  drunk,  mad  and  crazy, 
John  Golden  got  into  a  little  fracas  with  John  Mackey,  and  they 
skirmished  until  they  got  out  of  the  brewery.  In  the  meantime  Max 
Roenspeiss  came  out  of  the  office,  where  the  revolver  was  kept,  and 
approached  the  east  door,  and  just  about  that  time  David  Golden, 
being  out  of  doors  on  the  east  side  of  the  brewery,  threw  a  brick 


PERSONAL,   TNJCRS-  285 

into  the  brewery,  and  hit  tho  -  ,  ,    :      ,  s  '^tnrfe.-l 

out  of  the  east  door  after  him,  and  Dave  ; 

''    ■"  ■    after  going  fifteen  or  twenty  fec<.    . 

■t  Dave  in  the  back  of  the  head,  and  ! 
•It  forty  or  fifty 
I  the  evidence  \\ 

.  ;>:  .V  that  defendiint.'5  were  iiab' 

inaL._  ui  was  properly  excluded,     'i.^ 

that  Roenspeiss  was  employed  to  guard  and  p: 
.,  ;,.  .1    .  -^rpose  he  was  furnished  with  a  pistol,  .^ 
while  in  the  line  of  his  duty.  Without  dei 
il  the  dt .      '  ''  " 

was  re; 

hows  c-  not  liri 

ing  the  :  -^  line  of 

peiss  liad  shot  with  the  pistol  from  the  brewery 
y  passing  along  the  highway,  the  defendants  clears, 
i-  been  liable,  and  we  think  there  is  no  essential  diffc 
'  '      rl  the  one  at  bar.    To  protect  the  brew  - 

^5  to  shoot  and  kill  a  person  who  was 
The  killing  was  not,  done  in  the 

isoeiss  was  emploved  to  i  -  ,    :(=    *    * 


..vATOiN 

1   v.  i:-L  kv^'jj:..  y                       J.v:\ii-v  vv.\ 

Supreme  JuDici.                      Maine.    59 

recover  damage                pass  upon  ar: 

ugh  which                    's  railroad  ■• 

of  were   fi                  -qf  of   a    r-X' 

■le  the  h 

iitly  per' 

^^li-  ;  ■■ 

caking  of  i 

'■'.,■       , 

:s  the  case. 

\    -; 

J. — In  1850  the  defendant  corp< 

a  railroad  from   B 

.   ana 

mdary  line  of  Ne^^ 

'-    f'X- 

but  wa? 

,  1872,  V, 

road. 

On    - 

'■i^,r     r.M  defendnnt  corn...,  . 

lell  for  the  construe 
^'ew  Brunswi  ' 


oOLDEiX 


APPEAL  from  Mah; 
it  is  stated  in  th^-  • 
und  maliciouslv  1-:; 


1  oi  tli 

::ie  all  ^ 
material  m 
of  the  dc  I 
dered  for 


vcni-'aiu.~i    niiui\viLii 


j):o- 


.  that  d( 


the  afi( 


iiijii  <:iank;  some  more 
Joliri   C-iolden  got  i'lft 
skjrmi?hed  until  U' 
Roenspeiss  came  oui 
approached  the  east  < 
being  out  of  door 


ind  this  action  is  brought  to 

The  answer  consisted  of  a 

ore  the  court.     On  the  con- 

e  defendants  moved  the  court  to 

'ecause  it  was  incompetent,  im- 

how  any  liability  on  the  part 

c,  sustained  and  judgment  ren- 

The  plain  tifl  appeals. 

Mcr   time  the  defendants  asked   the 

•.    As  thi«t  was  not  done,  it  is  insisted 

r.     If  n'  •nt  evidence  was  in- 

could  h  The  theory  of  the 

.        legitimate  evidence. 

rice  had  been  intro- 

r  in  failing  to  make 

ppeliant  following  facts 

;:fendants,  evti  m:icc  1876,  have  been 

erv  in  the  city  of  Oskaloosa,  Iowa, 

I        ittncr  &  Newbrand,  and  that 

!dL  iii;  c,  has  been  and  is  now  their 

running  the  business,  and  that  one 

time  has  been  and  is  now  a  hand  em- 

ider  the  control  of  Charles  Blattner, 

f  '^     nn(>  1;  nd  that  a  part  of 

,..,.:;!  L  there  at  night 

.  a  revolver  kcpi  there  by  the  firm, 

!  slept  with  it  under  his  pillow  at 

id  in  the  business  of  manufactur- 

icer  saloons,  rows  were  likely  to 

red  to  protect  the  property  and 

■  ■?  in  the  business  generally. 

;  Tolden  was  killed,  he  and  1 

'  '  •  -  ed  out  of  the  brew  - 

hack  to  the  brewery 

:  little  drunk,  mad  and  crazy, 

ith  John  Mackey,  and  they 

very.    In  the  meantime  Max 

:•  the  revolver  was  kept,  and 

ut  that  time  David  Golden, 

the  brewery,  threw  a  brick 


I 


PERSONAL  INJURY.  285 

into  the  brewery,  and  hit  the  copper  cooler,  and  Roenspeiss  started 
out  of  the  east  door  after  him,  and  Dave  turned  and  ran,  when 
Roenspeiss,  after  going  fifteen  or  twenty  feet  from  the  brewery, 
fired  and  shot  Dave  in  the  back  of  the  head,  and  he  fell  forward  on 
his  face,  about  forty  or  fifty  feet  from  the  brewery." 

Conceding  the  evidence  was  as  above  stated,  it  did  not,  in  our 
opinion,  show  that  defendants  were  liable.  It  was,  therefore,  im- 
material, and  w^as  properly  excluded.  The  theory  of  appellant  is 
that  Roenspeiss  was  employed  to  guard  and  protect  the  brewery,  for 
which  purpose  he  was  furnished  with  a  pistol,  and  that  he  shot  the 
deceased  while  in  the  line  of  his  duty.  Without  determining  whether 
if  this  was  ail  the  defendants  would  be  liable,  we  think  the  fact  that 
the  deceased  was  retreating  from  the  brewery,  at  the  time  the  fatal 
shot  was  fired,  shows  conclusively  it  was  not  fired  for  or  with  the 
intent  of  protecting  the  brewery,  or  in  the  line  of  Roenspeiss'  duty. 
If  Roenspeiss  had  shot  with  the  pistol  from  the  brewery  a  person 
peaceably  passing  along  the  highway,  the  defendants  clearly  would 
not  have  been  liable,  and  we  think  there  is  no  essential  difference 
between  the  case  supposed  and  the  one  at  bar.  To  protect  the  brew- 
ery did  not  require  Roenspeiss  to  shoot  and  kill  a  person  who  was 
retreating  therefrom.  The  killing  was  not,  therefore,  done  in  the 
line  of  the  duty  Roenspeiss  was  employed  to  perform.^    ^    ^    ^^ 

Affirmed. 


EATON  V.  EUROPEAN,  ETC.,  RAILWAY  CO. 
1871.     Supreme  Judicial  Court  of  Maine.     59  Me.  520. 

Action  to  recover  damages  for  trespass  upon  and  injury  to  plain- 
tiff's lands,  through  which  defendant's  railroad  was  located.  The 
acts  complained  of  were  the  building  of  a  road  through  plain- 
tiff's lands,  outside  the  location  of  the  railroad ;  also  the  kindling  of 
fires  and  negligently  permitting  them  to  spread  and  burn  plaintiff's 
timber,  and  the  taking  of  timber  for  building  hovels  and  camps. 
The  opinion  states  the  case. 

Appleton,  C.  J. — In  1850  the  defendant  corporation  obtained  a 
charter  to  build  a  railroad  from  Bangor  to  Mattawamkeag,  and 
thence  to  the  boundary  line  of  New  Brunswick.  The  charter  ex- 
pired several  times,  but  was  revived  from  time  to  time,  and,  ulti- 
mately, December  31,  1872,  was  fixed  for  the  final  completion  of  the 
road. 

On  7th  August,  1865,  the  defendant  corporation  entered  into  a 
contract  with  Pierce  &  Blaisdell  for  the  construction  of  a  railroad 
from  Bangor  to  St.  John,  in  New  Brunswick.     It  was  specified 

'  A  portion  of  the  opinion  regarding  the  admissibility  of  evidence  is  omitted. 


286  LIABILITY    TO  THIRD   PERSONS. 

therein  that  the  work  should  "be  constructed  under  the  general  su- 
pervision and  direction  of  the  chief  engineer  of  said  company,  as  re- 
quired by  the  contract  and  specification ;"  and  that  the  railroad  was 
"to  be  built  on  the  line  as  located,  or  to  be  located  and  marked  out 
by  the  engineers  of  the  company." 

This  contract,  by  the  consent  of  the  defendant,  was  assigned  by 
Pierce  &  Blaisdell  to  the  International  Railway  Construction  and 
Transportation  Company.  On  24th  May,  1869,  this  company  con- 
tracted with  Brooks  &  Ryan  "to  construct,  build,  complete  and  finish 
in  a  good,  substantial  and  workmanlike  manner,  under  the  superin- 
tendence of  the  chief  engineer  of  the  E.  &  N.  A.  R.  Co.,  for  the  time 
being,"  all  the  work  within  certain  limits  defined  in  said  contract,  at 
a  certain  sum  per  mile.  Brooks  &  Ryan  were  to  make  good  any 
damages  to  the  adjoining  lands  caused  by  blasting  and  removing 
fences,  etc. 

On  November  i,  1869,  Brooks  &  Ryan  contracted  with  Riley  & 
Bunston  for  all  the  grading,  etc.,  of  the  portion  of  the  railway  be- 
tween stations  No.  650  and  No.  746,  the  work  to  be  done  in  accord- 
ance with  the  contract  of  May  24th,  1869,  between  said  International 
Railway  Construction  and  Transportation  Company  and  said  Brooks 
&  Ryan.  There  was  likewise  a  similar  contract  between  Brooks  & 
Ryan  and  Wiseman  for  the  grading  between  stations  No.  800  and 
No.  854. 

The  acts  of  which  complaint  is  made,  and  for  which  damages  are 
sought  to  be  recovered,  are  those  of  Riley  &  Bunston  and  of  Wise- 
man, or  of  those  in  their  employ.  The  relation  of  master  and  serv- 
ant did  not  exist  between  them  and  the  defendants.  They  were  not 
under  the  direction  and  control  of  the  defendants.  They  were  not 
employed  and  could  not  be  dismissed  by  the  defendants.  They  were 
sub-contractors  or  the  servants  of  sub-contractors.  The  sub-con- 
tractors were  responsible  to  those  with  whom  they  had  contracted, 
and  their  servants  to  those  in  whose  service  they  were  laboring. 

When  the  contract  is  to  do  an  act  in  itself  lawful,  it  is  presumed 
it  is  to  be  done  in  a  lawful  manner.  Unless,  therefore,  the  relation 
of  master  and  servant  exists,  the  party  contracting  is  not  responsible 
for  the  negligent  or  tortious  acts  of  the  person  with  whom  the  con- 
tract is  made,  especially  if  those  acts  are  outside  of  the  contract.  If 
the  injury  was  the  natural  result  of  work  contracted  to  be  done,  and 
it  could  not  be  accomplished  without  causing  the  injury,  the  person 
contracting  for  doing  it  would  be  held  responsible.  Butler  v. 
Hunter,  7  H.  &  N.  826.  In  Reedie  v.  The  London  &  N.  W.  R.  Co., 
4  Exch.  244,  a  company  empowered  by  act  of  parliament  to  con- 
struct a  railway,  contracted  under  seal  with  certain  persons  to  make 
a  portion  of  the  line,  and  by  the  contract  reserved  to  themselves  the 
power  of  dismissing  any  of  the  contractors  or  workmen  for  incom- 
petence. The  workmen,  in  constructing  a  bridge  over  a  public  high- 
way, negligently  caused  the  death  of  a  person  passing  beneath  the 


PRRSONA" 


....    .,,,^t    ..:.     .,    .......    .,.,    .....    ..,    ....   .......  i-i   ^  suit 

.idministrafrix,  that  the  company  was  n  rton 

'.  L.  866,  A  contracted  '  * 

'.  anH  enteritd  into  a  sub- 


same.      1  lit  plaintiff  fell  over  them  and 


'•V 


"csponsible  for  the  negligence, 
the  pre.'^ent  case  falls  within 
■     (i  that  the  s^  ' 
.  5,  is  liable  c; 
one  by  inmself  or  his  sc 
.  :ied  for."    In  Peachey  v.  , 

it  contracted  with  certain   mdividuals  to  cc 
-ki;.  ,  ;-rhway,  who  employed  one  C  to  fill  in  ;.. 
ind  to  carry  awav  the  surplus.    C  left  the 
'      •"'■''        "  ^        '  Intiff,  dr^ 

iield  tb- 
'onsibic  ior  uie  .  c  of  C. 

'dy  to  do  what  u    ,  done  irj       ; 

mer.    It  was  done  negligently  and  miproperly,  and  th^ 
'■'"ired,  but  it  was  not  thus  done  by  the  defendants, 
ace,  and  they  were  not  held  responsible.    So  in  the 


with  these 

..ns,5N.V    , 

.....  .1^. 

;  from  the  c 

w  York 

wer  in  . 

u  iet,  and  w.k. 

it  bv  .  ■ 

,  ronsiTuct  it  at 

the  injury,  is  a 
v..:iu  These  views  vv^-c  .'.nn 
k.  8  N.  Y.  222.    In  Kellv  \ 


m  his  employ. 


IIRD  PERSONS. 


iherein.that  tKe  work  shr 
i>ervision  and  direction 
quired  by  the  cont^'r 
to  be  built  on  th- 

by  the  engineers  ■ 
This  contract. 

rraeted  \\  i' 

in  a  goofi 

beinq-,'"  - 

a  ctir^ 

iider  the  general    ;i 
of  said  company,  as  re- 
ad that  the  railroad  was 
located  and  marked  out 

defendant,  was  assigned  by 

"  T^.  :vvM      ~  ion  and 

riy  con- 

.  curupicic  and  finish 

i  'J  .      :  .;i,  under  the  superin- 

:.c  E.  &  N.  A.  R.  Co.,  for  the  time 

■  limits  defined  in  said  contract,  at 

v^t  Ryan  were  to  make  good  any 

.  iused  by  blasting  and  removing 

:  acted  with  Riley  & 
i;  of  the  railway  be- 
■  -  be  done  in  accord- 

1  '^aid  International 
and  said  Brooks 

i'ttween  Brooks  & 
lations  No.  800  and 


H.  & 


pOi'.  I'll    w  .'.    lii  ; 

lower  of  dismisti 


!  for  which  damages  are 
,^t  Riley  &  Bunston  and  of  Wise- 
.    The  relation  of  master  and  serv- 
and  the  defendants.    They  were  not 
'  '  f  the  defendants.    They  were  not 
d  by  the  defendants.    They  were 
I        !      .     The  sub-con- 
'    had  contracted, 
■e  service  they  were  laboring. 
act  in  itself  lawful,  it  is  presumed 
r.    Unless,  therefore,  the  relation 
■"f^-  contracting  is  not  responsible 
f  person  with  whom  the  con- 
c  outside  of  the  contract.    If 
•  k  C(3ntracted  to  be  done,  and 
nj;  the  injury,  the 
resj/onsible.      T 
I  he  London  &  N.  W.  R.  Co., 
oy  act  of  parliament  to  con- 
with  certain  persons  to  make 
•t  reserved  to  themselves  the 
tors  or  workmen  for  incom- 
'  I       over  a  public  hi:  '• 
passing  beneath  rl 


PERSONAL  INJURY.  287 

bridge,  by  allowing  a  stone  to  fall  upon  him.  It  was  held,  in  a  suit 
by  the  administratrix,  that  the  company  was  not  liable.  In  Overton 
V.  Freeman,  73  E.  C.  L.  866,  A  contracted  with  parish  officers  to 
pave  a  certain  district,  and  entered  into  a  sub-contract  with  B,  under 
which  the  latter  was  to  do  the  paving  of  the  street,  the  materials  be- 
ing supplied  by  A  and  brought  to  the  spot  in  carts.  Preparatory  to 
paving,  the  stones  were  laid  by  laborers,  in  the  employ  of  B,  on  the 
pathway,  and  there  left  unguarded  during  the  night,  so  as  to  obstruct 
the  same.  The  plaintiff  fell  over  them  and  was  injured.  It  was 
held  that  B  was  responsible  for  the  negligence,  and  not  A.  "I  think," 
says  Maule,  J.,  "the  present  case  falls  within  the  principle  of  those 
authorities  which  have  decided  that  the  sub-contractor,  and  not  the 
person  with  whom  he  contracts,  is  liable  civilly,  as  well  as  criminally, 
for  any  wrong  done  by  himself  or  his  servants  in  the  execution  of 
the  work  contracted  for."  In  Peachey  v.  Rowland,  76  E.  C.  L.  181, 
the  defendant  contracted  with  certain  individuals  to  construct  a 
drain  in  a  public  highway,  who  employed  one  C  to  fill  in  the  earth 
over  the  brick  work,  and  to  carry  away  the  surplus.  C  left  the  earth 
so  much  raised  above  the  level  of  the  road  that  the  plaintiff,  driving 
by  in  the  dark,  was  thereby  upset  and  injured.  It  was  held  that  the 
defendants  w'cre  not  responsible  for  the  negligence  of  C.  The  de- 
fendant employed  somebody  to  do  what  might  be  done  in  a  proper 
and  safe  manner.  It  was  done  negligently  and  improperly,  and  the 
plaintiff  was  injured,  but  it  was  not  thus  done  by  the  defendants, 
nor  at  their  instance,  and  they  were  not  held  responsible.  So  in  the 
case  at  bar,  the  negligent  or  tortious  acts  of  the  sub-contractors  or 
of  their  servants  were  not  the  acts  of  the  defendants,  and  if  not  their 
acts,  nor  done  by  their  procurement,  the  sub-contractors,  or  the 
servants  committing  them,  alone  are  liable. 

In  conformity  with  these  views  are  the  decisions  in  this  country. 
In  Blake  v.  Ferris,  5  N.  Y.  48,  it  was  held  that  the  defendants,  who 
had  a  license  from  the  city  of  New  York  to  construct  at  their  own 
expense  a  sewer  in  a  public  street,  and  who  had  engaged  another 
person  to  do  it  by  contract,  to  construct  it  at  a  stipulated  price  for 
the  whole  work,  were  not  liable  to  third  persons  for  any  injury  re- 
sulting from  the  negligent  manner  in  which  the  sewer  was  left  at 
night  by  the  workmen  engaged  in  its  construction.  The  doctrine 
there  held  was,  that  the  immediate  employer  of  the  servant,  whose 
negligence  occasions  the  injury,  is  alone  responsible  for  the  negli- 
gence of  such  servant.  These  views  were  affirmed  in  Pack  v.  Mayor, 
etc.,  of  New  York,  8  N.  Y.  222.  In  Kelly  v.  Mayor,  etc.,  of  New 
York,  II  id.  432,  the  corporation  of  the  city  of  New  York  had  or- 
dered a  street  to  be  graded,  and  contracted  wath  a  person  to  do  the 
grading.  It  was  held  that  they  were  not  liable  for  damages  occa- 
sioned by  the  negligence  of  the  person  who  had  contracted  to  do  this 
work,  or  of  the  laborers  in  his  employ.  In  Clark  v.  Vermont  and 
Canada  R.  R.  Co.,  28  Vt.  103,  and  in  Pawlet  v.  The  Rutland  and 


288  LIABILITY   TO   THIRD   PERSONS. 

Washington  R.  R.  Co.,  28  id.  297,  it  was  held  tbat  the  defendants 
were  not  Hable  for  the  negligent  or  tortious  acts  of  the  servants  of 
those  who  had  contracted  to  do  certain  work  for  these  corporations ; 
that  no  privity  existed  between  such  servants  and  the  corporations. 
"Though  it  may  be  assumed  in  the  case  before  us,"  remarks  Ben- 
net,  J.,  in  the  last-named  case,  "that  a  public  nuisance  had  been  com- 
mitted by  the  servants  of  the  sub-contractor,  and  a  particular  injury 
has  resulted  therefrom  to  Phelps,  and  for  which  the  town  (of  Paw- 
let)  had  been  compelled  to  make  satisfaction,  yet  we  cannot  discover 
any  privity  existing  between  the  defendants  and  the  employes  of  the 
sub-contractor.  The  contract  made  for  the  building  of  the  abutments 
to  the  bridge  was  for  a  lawful  purpose,  and  in  no  way  involved  the 
commission  of  a  wrong,  and  the  employes  of  the  sub-contractor 
were  not  the  servants  of  the  defendants  nor  under  their  control." 
In  Cuff  V.  Newark  and  New  York  R.  R.  Co.,  9  Am.  Law  Reg.  N. 
S.  541,  the  question  under  discussion  was  very  carefully  considered 
and  examined  by  the  supreme  court  of  New  Jersey,  and  with  like 
conclusions.  "The  rule  is  now  firmly  established,"  remarked  Depue, 
J.,  "that  when  the  owner  of  lands  undertakes  to  do  a  work  which, 
in  the  ordinary  mode  of  doing  it  is  a  nuisance,  he  is  liable  for  any 
injuries  which  may  result  from  it  to  third  persons,  though  the  work 
is  done  by  the  contractor  exercising  an  independent  employment 
and  employing  his  own  servants.  But  when  the  work  is  not  in  itself 
a  nuisance,  and  the  injury  results  from  the  negligence  of  such  con- 
tractor or  his  servants  in  the  execution  of  it,  the  contractor  alone  is 
liable,  unless  the  owner  is  in  default  in  employing  an  improper  and 
unskilful  person  as  the  contractor." 

In  Callahan  v.  Burlington  &  Missouri  River  R.  R.  Co.,  23  Iowa 
562,  the  plaintiff  sought  to  recover  compensation  for  damage  done 
to  his  timber,  and  by  a  fire  negligently  set  by  the  employe  of  a  sub- 
contractor with  the  defendant  corporation,  for  the  purpose  of  clear- 
ing the  way  of  trees,  logs,  brush  and  rubbish.  The  contract  provided 
that  the  way  should  be  cleared  of  all  trees,  etc.,  by  removal  or 
burning,  as  the  engineer  should  direct,  before  the  grading  should 
be  commenced.  The  engineer  ordered  the  burning,  which  by 
the  negligence  of  the  person  who  set  the  fire,  escaped  on  the 
plaintiff's  land,  doing  there  much  injury,  and  the  question  pre- 
sented was  whether  the  railroad  corporation  was  responsible  for 
the  negligence  of  a  servant  of  a  sub-contractor.  In  delivering  the 
opinion  of  the  court.  Beck,  J.,  says :  "If  the  person  sought  to  be 
charged  under  the  rule  as  employer  did  not  contract  with  the  party 
committing  the  wrongful  act  for  his  labor  or  services,  and  is  not 
directly  liable  to  him  for  compensation  for  such  labor  or  services, 
and  has  no  such  control  over  him  as  will  enable  the  employe  to  direct 
the  manner  of  performing  the  labor  or  services,  he  is  not  liable  for 
the  wrongful  act  of  the  agent  or  servant.  In  order  to  create  the  lia- 
bility, it  is  especially  necessary  that  the  control  of  the  employe  over 


2Sq 

such  a  character  as  tc 
.mng  the  services,  and  to  p: 
.  aone  in  order  ^'-    -^  oniplish  V. 
s  have  received  ion  of  tli  ' 

nd.    In  Gilbert  a  3  Irish 

owner  of  the  s:  'addy.  b 

'  as  secretary  lu 
■or  of  Wicklaw 
ti  of  the  negligence  of  comm.  >  nad  c. 

:  certain  piles,  etc.,  and  neglec, ^  i-  >-ar, 

ny  light,  or  to  use  any  other  rei  : 
.^  from  being  driven  thereon. 
dants  pleaded,  among  other  pleas,  that  th- 
•1  of  the         ' 
etc.,  the  - 
I  the  said  Kiiiicn. 
L  .,  in  delivering  his  opinion,  ;      I  think  the  case 

-e  rule  that  the  contractor,  and  not  the  employee,  ougl. 

■> 

--  is  a  plain  difference,"  remarks  Richards,  B.,  "between  the 
■t  ^ter  and  servant,  and  that  of  employee  and  contractor. 
■  ce  was  authorized  to  perform  the  work,  and  he  author - 
otitractor.    No  man  would  drive  down  piles  in  a  navigable 
(hout  being  authorized.    Therefore,  I  think  it  was  the  con- 
duty  to  have  apprised  his  employer  that  this  work  had 

.such  a  stage  that  it  was  necessary  to  get  ligh?'~  *■'-  -■* 

It  was  not  to  be  expected  that  the  commis 
'  on  all  occasions  to  see  what  mit;' 
nger.    The  coritract-^r  frjiled  in  pe- 
.  ■       •  -^  t  to  be  e  questi 

":-,  .Vi  J  iS  liable.  iractor,  t' 

^le,  for  it  is  clear,  from  all  the  cases, 
able  the  employee  "        '■      It  appe?'- 
:v  of  the  contra^  i;t  these  ^ 

'  ''     "The  prin(.i;.)c  ot  law  is  c'. 
■r\  a  person  is  engaged  by  cor 
.ctor  and  not  ■ 

iield  to  be  the  Rv;- 

r..,  9th  March,  1850,  22  Jur.  394,  1 
ontracts  with  one  man  to  do  a  pi 
jutracts  with  another,  the  sub-o-; 
iiage  committed  in  the  course    ^"  ' 
e  law  was  again  sustained   ; 
ow  Railway  Co., 
,  this  suit,  relies  1 
•X) ;  the  case  was  this 


2S8 


Washington  R.  R.  ^-  ..  -. 
ere  not  liable  for  the  ne 
ihose  who  had  contract-  ' 
that  no  privity  existe< 
"Though  it  may  1 
net,  J.,  in  the  last 
uiitted  by  tlie 
has  resulted  i' 
let)  had  been 
any  privity  ex 
sub-contractor 


were 
Ii,  C 


to  his  umber, 
contractor  with 
ing  the  way  of 
<.u^*  the  way  r,l\< 
in',  as  the  ev 


nder  the  rul 
co.ii.ujiLLUig  the  \i 
directly  liable  to 
and  has  no  such  c> 
the  manner  of  per 
the  wrongful  act  ot  ti. 


;.M    il :.':-   the  dcfcndai;!.: 

-ervants  of 

rporations ; 

>rporations. 

.    us,     remarks  Ben- 

..cance  had  been  com- 

) .  and  a  particular  injury 

!    vhich  the  town  (of  Paw- 

otion,  yet  we  cannot  discover 

iants  and  the  employes  of  the 

^iie  building  of  the  abutments 

;  use,  and  in  no  way  involved  the 

employes  of  the  sub-contractor 

tdants  nor  under  their  control." 

K  R.  R.  Co.,  9  Am.  Law  Reg.  N. 

ussion  was  very  carefully  considered 

court  of  New  Jersey,  and  with  like 

lirmly  established,"  remarked  Depue, 

nds  undertakes  to  do  a  work  which. 

it  is  a  nuisance,  he  is  liable  for  any 

it  to  third  persons,  though  the  work 

rcising  an  mdependent  employment 

s.    But  when  the  work  is  not  in  itself 

ilts  from  the  negligence  of  such  con- 

xecution  of  it,  the  contractor  alone  is 

■efault  in  employing  an  improper  and 

ror." 

Missouri  River  R.  R.  Co.,  23  Iowa 

>ver  compensation  for  damage  done 

itly  set  by  the  employe  of  a  sub- 

.jjoration,  for  the  purpose  of  clear- 

;   and  rubbish.    The  contract  provided 

vd  of  all  trees,  etc.,  by  removal  or 

1  direct,  before  the  grading  should 

r    ordered    the    burning,    which    by 

who  set  the   fire,   escaped   on   the 

luch   injury,  and   the  question   pre- 

.1/1   corporation   was  responsible  for 

lb-contractor.     In  delivering  the 

.s:    "If  the  person  sought  to  hf 

r  did  not  contract  with  the  pa' 

is  labor  or  services,  and  is  ;■ 

lion  for  such  labor  or  servii:. 

will  enable  the  employe  to  direct 

•r  services,  he  is  not  liable  for 

t.    In  order  to  create  the  ; 


J    ,^f  i]^ 


ipV.i  /■• 


PERSONAL  INJURY.  289 

the  servant  should  be  of  such  a  character  as  to  enable  him  to  direct 
the  manner  of  performing  the  services,  and  to  prescribe  w^hat  par- 
ticular acts  shall  be  done  in  order  to  accomplish  the  acts  intended." 

The  same  views  have  received  the  sanction  of  the  highest  judicial 
tribunals  in  Ireland.  In  Gilbert  v.  Halpin,  3  Irish  Jurist,  N.  S.  300, 
the  plaintiff,  as  owner  of  the  schooner  Paddy,  brought  an  action 
against  the  defendant  as  secretary  to  the  commissioners  empowered 
to  improve  the  harbor  of  Wicklaw,  to  recover  damages  for  its 
loss  by  reason  of  the  negligence  of  commissioners,  who  had  caused 
to  be  placed  certain  piles,  etc.,  and  neglected  to  place,  or  cause  to 
be  placed,  any  light,  or  to  use  any  other  reasonable  precaution  to 
guard  vessels  from  being  driven  thereon. 

The  defendants  pleaded,  among  other  pleas,  that  they  committed 
the  execution  of  the  work  to  their  contractor,  John  Killien,  and  that 
at  the  time,  etc.,  the  said  piles  were  still  in  the  possession  and  under 
the  control  of  the  said  Killien. 

Green,  B.,  in  deHvering  his  opinion,  says :  'T  think  the  case  falls 
within  the  rule  that  the  contractor,  and  not  the  employee,  ought  to 
be  liable." 

"There  is  a  plain  difference,"  remarks  Richards,  B.,  "between  the 
case  of  master  and  servant,  and  that  of  employee  and  contractor. 
The  employee  was  authorized  to  perform  the  work,  and  he  author- 
ized the  contractor.  No  man  would  drive  down  piles  in  a  navigable 
river,  without  being  authorized.  Therefore,  I  think  it  was  the  con- 
tractor's duty  to  have  apprised  his  employer  that  this  work  had 
come  to  such  a  stage  that  it  was  necessary  to  get  lights  to  prevent 
accidents.  It  was  not  to  be  expected  that  the  commissioners  would 
be  on  the  ground  on  all  occasions  to  see  what  might  be  required  to 
guard  against  danger.  The  contractor  failed  in  performing  his  duty, 
and  I  think  he  ought  to  be  liable."  "The  question,"  says  Penne- 
father,  B.,  "is,  who  is  liable.  If  the  contractor,  the  commissioners 
are  not  liable,  for  it  is  clear,  from  all  the  cases,  that  if  the  con- 
tractor is  liable  the  employee  is  not.  It  appears  to  me,  that  if  it 
was  the  duty  of  the  contractor  to  put  these  lights,  his  employees 
were  not  bound."  "The  principle  of  law  is  clear,"  remarks  Pigot, 
C.  B.,  "that  when  a  person  is  engaged  by  contract  to  do  a  certain 
work,  the  contractor  and  not  the  employee  is  liable  for  this." 

Such,  too,  is  held  to  be  the  law  in  Scotland.  In  McLean  v.  Rus- 
sell, McNee  &  Co.,  9th  March,  1850,  22  Jur.  394,  it  was  decided  that 
when  a  person  contracts  with  one  man  to  do  a  piece  of  work,  and 
the  latter  sub-contracts  with  another,  the  sub-contractor  alone  is 
liable  for  any  damage  committed  in  the  course  of  the  work  by  him." 
This  view  of  the  law  was  again  sustained  by  the  same  court  in 
Shield  V.  Edinburgh  &  Glasgow  Railway  Co.,  28  Jur.  539. 

The  plaintiff,  in  support  of  this  suit,  relies  upon  the  case  of  Bush 
V.  Steinman,  i  B.  &  P.  400 ;  the  case  was  this :  A  having  a  house  by 
19 — Reinhard  Cases. 


290  LIABILITY   TO   THIRD   PERSONS. 

the  roadside,  contracted  with  B  to  repair  for  a  stipulated  sum ;  B 
contracted  with  C  to  do  the  work ;  C  with  D  to  furnish  the  materials ; 
the  servant  of  D  brought  a  quantity  of  lime  to  the  house,  and  placed 
in  the  road,  by  which  the  plaintiff's  carriage  was  overturned.  Held, 
that  A  was  answerable  for  the  damage  sustained.  Without  particu- 
larly examining  the  reasoning  of  the  court,  it  is  sufficient  to  say 
that  it  has  been  long  since  overruled  in  England  and  in  this  country, 
as  will  abundantly  appear  by  the  cases  cited.  It  is  true  the  case  is 
cited  with  approbation  in  Lowell  v.  Boston  &  Maine  Railroad, 
23  Pick.  24,  but  subsequently,  upon  an  elaborate  and  careful  review 
of  the  authorities,  it  was  overruled  in  Hilliard  v.  Richardson,  3  Gray, 
349.  It  can  no  longer  be  deemed  an  authority  on  the  other  side  of 
the  Atlantic. 

The  next  case  cited  in  support  of  this  claim  is  Lowell  v.  B.  &  M. 
R.  R.,  23  Pick.  24,  but  so  far  as  that  rests  upon  Bush  v.  Steinman, 
as  has  already  been  seen,  it  has  been  overruled.  "The  accident"  in 
that  case,  observes  Thomas,  J.,  in  Hilliard  v.  Richardson,  "occurred 
from  the  negligence  of  a  servant  of  the  railroad  corporation,  acting 
under  their  express  orders.  The  case,  then,  of  Lowell  v.  Boston  & 
Lowell  Railroad  stands  perfectly  well  upon  its  own  principles,  and 
is  clearly  distinguishable  from  the  case  at  bar.  The  court  might  well 
say,  that  the  fact  of  Noonan,  being  a  contractor  for  this  section,  did 
not  relieve  the  corporation  from  the  duties  or  responsibility  imposed 
on  them  by  their  charter  and  the  law,  especially  as  the  failure  to  re- 
place the  barriers  was  the  act  of  their  immediate  servant,  acting 
under  their  orders."  The  defendants  in  the  present  case  would  be 
liable  for  any  and  all  wrongful  acts  done  by  their  "immediate  serv- 
ants, acting  under  their  orders."  They  should  not  be  held  responsible 
for  the  torts  of  a  contractor  engaged  to  do  a  specified  work,  lawful 
in  itself,  which  might  be  performed  without  interfering  with  the 
rights  of  others,  nor  for  the  torts  of  his  servants,  whom  they  never 
employed,  over  whom  they  had  no  control,  and  whom  they  could  not 
discharge. 

In  Wyman  v.  Penobscot  &  Kennebec  R.  R.  Co.,  46  Me.  162,  the 
tiain  by  which  the  injury  was  caused  was  "run  under  tne  direction  of 
the  company  and  under  their  control,"  and  it  was,  consequently, 
held  liable.  In  Veazie  v.  Penobscot  R.  R.,  49  Me.  1 19,  the  plaintiff 
town  sought  to  recover  of  the  defendant  corporation  the  amount  it 
had  been  compelled  to  pay  in  consequence  of  a  defect  in  a  highway 
occasioned  by  their  neglect.  The  injury,  it  is  stated  in  Phillips  v. 
Veazie,  40  Me.  98,  was  occasioned  "by  the  acts  of  the  Penobscot 
Railroad  Company,  in  constructing  their  road  over  that  of  the  de- 
fendants." The  decision  in  Veazie  v.  Penobscot  Railroad  Co.,  is 
placed  on  the  ground  that  the  work  causing  the  injury  was  done 
"according  to  the  plans  and  directions  of  the  chief  engineer  of 
said  company."  It  is  undoubtedly  true,  that  when  the  contractor  is 
to  follow  the  directions  of  an  engineer  of  the  contracting  corpora- 


TV'kBC.V 


■it  3n'.i 

held 

airccUc 

arc  of 

Lhout  such  ci' 
ih'oad  corpor...    .. 
such  torts  of  a  coiv: 
rporation.     If  the  cinn:  ■-. 
.'■':  done  are  legal,  the  wren  : 
::,  and  not  those  of  the  party  v.. 
t  is  different  when  the  relation 

.:;erefore,  of  Veazie  v.  Penobscot  .Rail' 
svith  all  the  authorities,  if  these  wrongf- 
r'.one  by  the  specific  direction  of  their  engii..-v.. 
;r  ground  upon  v»hich  the  decision  is  placed,  thi.. 
-f  '  ■  responsible,  whatever  contracts  they  may  n 
se  with  whom  they  contract,  can  hardly  1^ 
.ich  an  extent.    The  authorities  already  cited  abundantly 
''^:  the  neglerr      ':d  tarts  of  contractors  or  their  servants, 
'tions  a.  be  governed  by  other  or  dift'erent 

l•>^e  applicaL'iv.  ..    ■  Liier  corporations  or  to  individuals. 
:  that  it  is  specified  in  the  original  contract  with  Pierce  & 
n.at  "the  work  shall  be  constructed  under  i'  .al  su- 

f  the  chief  engineer  of  said  company,  as  r.  v  thic? 

cifications,"  doc  .rily  ren  ■; 

liable  for  whate  "actor  ■  '. 

■fully  do.    The  corpo:  lOt  to  bc^ 

.::tracted  to  be  done  *  •  ^-  + - 

:Ctioned  by  corpo 

■    '.,  8i  E.  C.  L.  55u,  uic  wonc  \va: 
ding  to  plans  prepared  by  and 
company's  surveyor,  yet  the  rai' 
;:sible  for  an  injury  resulting  to  ■' 
;t  manner  in  which  the  work  was  d 
Mc,.,';  K.    ^^,^^  ,^. ,.,,..',.-;:  or  by  an 

^''ew  Yo 
^    lUK'ci"  tnc  circectior  ■  .    - 

ioner  of  repairs  and  .;• 

e  work,"  yet  the  cii 
■  ''  by  the  negligence  o 
he  clause  in  question,"  obser 
^^'>n  no  power  to  control  the 
it  he  might  make  his  ov 
:  -'    ■ -nn  lies  at  the  four 
d  for  the  acts  n- 


2(yj 


lABILTTY  TO  THTRD   PFRSONS. 


contracted  with  C  to 
the  servant  of  D  ^-- 
in  the  road,  by  w' 
that  A  was  n 
lavly  exaniir 
that  it  has  be 
as  will  abun  ' 
cited   with   a 
23  Pick.  24,  1 
of  the  autho!^ 

349      ' 
tlie    . 


ioyed,  o\ 


■  .    '.  Jiccbie. 

in  \ 

•  "^ou^ht 

:  to  It 

,   CO] 

inpelleci 

tc. 

■  *  1 

V  their 

iif. 

fe.  98, 

w-' 

.U...    i.      >.;■,      V-'-' 

nipany, 

in  cv. 

fendants/" 

The  decision 

' ;' '.  ed  on  tl 

■  ■? 

'•rdino- 

I  ted  sum;  B 

'  he  materials ; 

:.  and  placed 

rned.    Held, 

.  sustuuied.  particu 

court,  it  isi  .>.  to  sa\ 

I  England  arid  m  tins  country, 

:  cited.     It  is  true  the  case  is 

Boston   &   Maine   Railroad. 

,1  o  ^-  elaborate  and  careful  review 

'  in  Hilliard  v.  Richardson,  3  Gra> , 

'-■i-d  ail  authority  on  the  other  side  ol 

Tt  of  this  claim  is  Lowell  v.  B.  &  M. 

as  that  rests  upon  Bush  v.  Steinman, 

as  been  overruled.     "The  accident"  in 

.,  in  Hilliard  v.  Richardson,  "occurred 

ant  of  the  railroad  corporation,  actinj^ 

;- :   —       "'en,  of  Lowell  v.  Boston  & 

I  its  own  principles,  ami 

the  cii.s.  The  court  might  well 

leing  a  >  r  for  this  section,  did 

in  the  duties  or  responsibility  imposed 

•  he  law,  especially  as  the  failure  to  re 

t  of  their  immediate  servant,  acting 

endants  in  the  present  case  would  be 

il  acts  done  by  their  "immediate  serv- 

"'  They  should  not  be  held  respon,  .'  ' 

•  traped  to  do  a  specified  work,  la,. 

'out  interfering  with  the 
rvants,  whom  they  never 
controi,  and  whom  they  could 

■lebec  R.  R.  Co.,  46  Me.  162,  the 
'd  was  "run  under  tne  direction  o! 
iitrol,"  and  it  was,  consequently, 
t  R.  R.,  49  Me.  119,  the  plaintiff 
endant  corporation  the  an^nnrt  i*^ 
.    cquence  of  a  defect  in  a  ' 
injury,  it  is  stated  in  PL      . 
■  d  "by  the  acts  of  the  Penob 
'.<;  their  road  over  that  of  the 
te  V.  Penobscot  Railroad  Co 
causing  the  injury  was  d 
IS  of  the  chief  engineer 
,  that  when  the  cont 
:  of  the  contracting  ~ 


( 


PERSONAL  INJURY.  29I 

tion,  and  he  is  directed  by  such  engineer  to  do  an  unauthorized  and 
illegal  act,  the  corporation,  thus  acting  by  its  agent,  would  be  held 
liable.  But  if  the  engineer  gives  no  such  directions,  and  the  tortious 
acts  of  the  contractor  or  of  his  servants  are  of  his  or  their  mere 
motion,  and  without  such  direction  or  authority,  it  is  difficult  to  per- 
ceive why  a  railroad  corporation,  in  such  case,  should  be  held  any 
more  liable  for  such  torts  of  a  contractor  than  an  individual,  or  a 
city,  or  any  corporation.  If  the  contract  is  a  legal  one,  the  acts 
contracted  to  be  done  are  legal,  the  wrongful  acts  of  the  contractor 
are  his  own,  and  not  those  of  the  party  with  whom  the  contract 
is  made.  It  is  different  when  the  relation  of  master  and  servant 
exists. 

The  case,  therefore,  of  Veazie  v.  Penobscot  Railroad  Co.  is  in 
accordance  with  all  the  authorities,  if  these  wrongful  or  negligent 
acts  were  done  by  the  specific  direction  of  their  engineer. 

The  other  ground  upon  which  the  decision  is  placed,  that  "the 
company  must  be  responsible,  whatever  contracts  they  may  make," 
for  the  torts  of  those  with  whom  they  contract,  can  hardly  be  sus- 
tained to  such  an  extent.  The  authorities  already  cited  abundantly 
show  that  for  the  neglects  and  torts  of  contractors  or  their  servants, 
railroad  corporations  are  not  to  be  governed  by  other  or  different 
rules  than  those  applicable  to  other  corporations  or  to  individuals. 

The  fact  that  it  is  specified  in  the  original  contract  with  Pierce  & 
Blaisdell  that  "the  work  shall  be  constructed  under  the  general  su- 
pervision of  the  chief  engineer  of  said  company,  as  required  by  this 
contract  and  specifications,"  does  not  necessarily  render  the  defend- 
ant corporation  liable  for  whatever  the  contractor  or  their  servants 
may  wrongfully  do.  The  corporation  is  not  to  be  held  for  an  illegal 
act  not  contracted  to  be  done,  nor  directed  by  their  engineer,  and  in 
no  Avay  sanctioned  by  corporate  action.  In  Steel  v.  The  Southeast- 
ern Railway  Co.,  81  E.  C.  L.  550,  the  work  was  to  be  done  by  the 
contractor  according  to  plans  prepared  by  and  under  the  superin- 
tendence of  the  company's  surveyor,  yet  the  railway  company  was 
held  not  responsible  for  an  injury  resulting  to  a  third  person,  from 
the  negligent  manner  in  which  the  work  was  done  by  such  contractor. 
It  was  not  caused  by  the  company  or  by  any  servant  in  their  em- 
ploy. In  Kelly  v.  Mayor,  etc.,  of  New  York,  11  N.  Y.  435,  the 
work  was  to  be  done,  "under  the  direction  and  to  the  entire  satisfac- 
tion of  the  commissioner  of  repairs  and  supplies,  and  the  surveyor 
having  charge  of  the  work,"  yet  the  city  was  held  not  responsible 
for  damages  caused  by  the  negligence  of  workmen  in  the  employ 
of  the  city.  "The  clause  in  question,"  observes  Selden,  J.,  "clearly 
gave  the  corporation  no  power  to  control  the  contractor  in  the  choice 
of  his  servant.  That  he  might  make  his  own  selection  will  not  be 
denied.  The  right  of  selection  lies  at  the  foundation  of  the  responsi- 
bility of  a  master  or  principal  for  the  acts  of  his  servant  or  agent." 
To  the  same  effect  was  the  cases  of  Pack  v.  Mayor,  etc.,  of  New 


292  LIABILITY   TO   THIRD   PERSONS. 

York,  4  Seld.  222 ;  Cuff  v.  N.  &  N.  Y.  R.  R.  Co.,  9  Am.  Law  Register 
541.  In  Hobbett  v.  The  London  &  N.  W.  Ry.  Co.,  4  Exch.  253,  the 
company  by  their  contract  reserved  to  themselves  the  power  of  dis- 
missing any  of  the  contractor's  workmen  for  incompetence.  "Our 
attention,"  observes  Rolfe,  B.,  "was  directed,  during  the  argument, 
to  the  provisions  of  the  contract,  whereby  the  defendants  had  the 
power  of  insisting  on  the  removal  of  careless  or  incompetent  work- 
men, and  so  it  was  contended  they  must  be  responsible  for  their 
non-removal.  But  the  power  of  removal  does  not  seem  to  vary 
the  case.  The  workman  is  still  the  servant  of  the  contractor  only, 
and  the  fact  that  the  defendant  might  have  insisted  on  his  removal 
if  they  thought  him  careless  or  unskilful,  did  not  make  him  their 
servant." 

Though  a  person  employing  a  contractor  is  not  responsible  for 
the  negligence  or  misconduct  of  the  contractor  or  his  servants  in 
executing  the  act,  yet  if  the  act  is  wrongful,  the  employer  is  re- 
sponsible for  the  wrong  so  done  by  the  contractor  or  his  servants, 
and  is  liable  to  third  persons  for  damages  sustained  by  such  wrong- 
doing. Ellis  V.  Sheffield  Gas  Consumer  Co.,  75  E.  C.  L.  767.  So 
if,  in  the  present  case,  the  contract  was  to  do  a  wrongful  act,  the 
defendants  must  be  held  Hable  for  damages  occasioned  thereby.  Or, 
if  the  defendant's  engineer  directed  the  contractors  to  do  what  was 
illegal  and  unauthorized,  as  by  working  outside  of  the  limits  of  the 
true  location,  the  defendants  must  be  held  liable  for  any  trespass 
thus  committed. 

By  R.  S.  1857,  Ch.  51,  §  23,  "Legal  and  sufficient  fences  are  to  be 
made  on  each  side  of  land  taken  for  a  railroad,  when  it  passes 
through  enclosed  or  improved  land  or  wood-lots  belonging  to  a 
farm  before  the  construction  of  the  road  is  commenced,  and  they  are 
to  be  maintained  and  kept  in  repair  by  the  corporation.  For  any 
neglect  of  it  during  the  construction  of  the  road,  and  for  injuries 
thereby  occasioned  by  its  servants,  agents  or  contractors,  the  di- 
rectors are  jointly  and  severally,  personally  liable." 

By  section  25,  "the  corporation  is  liable  for  trespasses  and  injuries 
to  lands  and  buildings  adjoining,  or  in  the  vicinity  of  its  road,  com- 
mitted by  a  person  in  its  employ,  or  occasioned  by  its  order,  when 
the  party  injured  has,  within  sixty  days  thereafter  given  notice  of 
it  to  the  corporation ;  but  its  liability  does  not  extend  to  acts  of 
wilful  and  malicious  trespass. 

An  individual  in  the  employ  of  the  company  is  not  a  person  con- 
tracting with  the  company  to  do  and  perform  a  certain  contract. 
The  difference  between  the  contractor  and  servant,  or  employee  of 
the  company,  is  recognized  by  the  statute.  The  provisions  of  sec- 
tion 25  apply  only  to  those  in  the  employ  of  the  corporation,  or  those 
acting  under  its  orders. 

The  provisions  of  §  23  embrace  contractors.  As  contractors 
are  included  in  one  section,  and  omitted  in  the  other,  we  must  deem 


K  KOWLIID': 


.  therefore, 

spv       ler  this  sec 

",    factors. 

remainder  of  the  op; 
a-  I'-'  /whether,  in  fact,  the  rcr    >!.in  !>■  v. 
tion,  and  to  detennine  this  question  the 


Section  3. — Notice  to  and  Knowledge  of  Agent 

it  V.  THE  NTT  ASSOCIA' 


.  arc  £.;,. 
.d  that  c 
ttiai  was  awaideti  tu  the  plaiutifi  at  September 
M.  C.  240),  the  main  question  involved   ;>    t.ie 
uise  of  a  second  appeal,  the  defendant  c< 

rt  shall  review  -^  ■'    ■  •■  * '      '-  -'-— — 

hearing.     There 

ramfications.    '  co:ini:i 

Kearney  '" 

on  whicli 
-rief  on  ; 


1  MUTT  rV    'If 


missing  any  of  the 
attention," 
to  the  pro 
power  of  V 
men,  and 
n-remo\ 
.ue  case. 
and  the  fa^ 
if  ^'-       "^ 


_  iw  Registc 

£xch.  253,  the 

iv>,  -  .ixe  power  of  dis- 

r  incompetence.     "Our 

■  the  argument, 

'  'l^nts  had  the 

■  ciess  or  ^:;nt  work- 

:st  be  i\  ,  .  •  for  their 

\al  does  not  seem  to  vary 

^:  vant  of  the  contractor  only, 

might  have  insisted  on  his  removal 

i  -•^-•''' :',  fh'd  not  make  him  their 


is  not  ;  le  for 

.>:tor  or  aits  in 

e  act  is  wrongful,  the  ernpioyer  is  re- 


'.cmc  hv 

ihf   ^ 

iiT;ictor  or  his  servants, 
ed  by  such  wrong- 

.IS    '_i.uL.:>a 

.:w. 

E.  C.  L.  767.     So 

contract 

wa^ 

wrongful  act,  the 
1  thereby.    Or, 
)  do  what  was 

ijy  won. 

•1  the  limits  of  the 

'  ■■  mu?t 

e  for  any  tresoas; 

..-.,,,«.  c....a  -^.....cient  fences  arc  ^^  u^. 
;cen  for  a  railroad,  when  it  passes 


j':ir'-;i  hpfo' 


occasr 


.a on.     Fur  any 
,  cad  for  injuries 
agents  or  contractors,  the  di- 
.r.',lly  liable." 

for  trespasses  and  injuri 
li  Lue  vicinity  of  its  road,  con 
occasioned  by  its  order,  wlu 
reafter  given  notice  ot 
rot  extend  to  acts  of 


,  .  _     -    ..I   '-  person  co; 

;)erform  a  certain  contra' 

nd  servant,  or  employee  - 

le.    The  provisions  of  st 

ration,  or  th»' 


As 
ler,  we 


KNOWLEDGE   OF  AGENT.  293 

it  to  have  been  for  some  purpose,  and  that  when  they  are  omitted, 
it  was  not  the  intention  of  the  legislature  that  the}'  should  be  in- 
cluded. 

We  think,  therefore,  that  the  corporation  is  not  to  be  held  re- 
sponsible under  this  section  for  the  torts  of  contractors  or  the  serv- 
ants of  contractors. 

(The  remainder  of  the  opinion  is  devoted  entirely  to  the  question 
as  to  whether,  in  fact,  the  road  had  been  built  outside  of  the  loca- 
tion, and  to  determine  this  question  the  case  was  ordered  to  stand 
for  trial.)  ^ 


Section  3. — Notice  to  and  Knowledge  of  Agent. 

FOLLETTE  v.  THE  MUTUAL  ACCIDENT  ASSOCIATION. 

1892.     Supreme  Court  of  North  Carolina,     iio  N.  C.  377. 

Avery,  J. — Though,  in  some  of  its  features,  there  are  slight  differ- 
ences between  the  case  presented  by  this  appeal  and  that  considered 
when  a  new  trial  was  awarded  to  the  plaintiff  at  September  term, 
1890  (107  N.  C.  240),  the  main  question  involved  is  the  same. 
Under  the  guise  of  a  second  appeal,  the  defendant  company  insists 
that  this  court  shall  review  and  overrule  its  former  decision,  as  if 
it  were  a  rehearing.  There  is  no  branch  of  the  law  as  to  which, 
in  all  of  its  ramfications,  there  is  so  much  conflict  in  the  rulings  of 

'See  Farmer  v.  Kearney  (La.),  39  So.  967,  discussed  in  19  Harv.  Law 
Rev.  540. 

"The  distinction  on  which  all  the  cases  turn  is  this :  If  the  person  employed 
to  do  the  work  carries  on  an  independent  employment  and  acts  in  pursuance 
of  a  contract  with  his  employer  by  which  he  has  agreed  to  do  the  work  on 
certain  specified  terms,  in  a  particular  manner  and  for  a  stipulated  price,  then 
the  employer  is  not  liable.  The  relation  of  master  and  servant  does  not  sub- 
sist between  the  parties,  but  only  that  of  contractor  and  contractee.  The 
power  of  directing  and  controlling  the  work  is  parted  with  by  the  employer 
and  given  to  the  contractor.  But,  on  the  other  hand,  if  work  is  done  under  a 
general  employment,  and  is  to  be  performed  for  a  reasonable  compensation  or 
for  a  stipulated  price,  the  employer  remains  liable,  because  he  retains  the 
right  and  power  of  directing  and  controlling  the  time  and  manner  of  executing 
the  work,  or  of  refraining  from  doing  it.  if  he  deems  it  necessary  or  expedi- 
ent."   Bigelow,  C.  J.,  in  Brackett  v.  Lubke,  4  Allen  (Mass.)   138,  140. 

"The  inability  of  the  master  to  shift  the  responsibility  connected  with  the 
custody  of  dangerous  instruments,  employed  in  his  business,  from  himself  to 
his  servants  entrusted  with  their  use,  is  analogous  to,  and  may  be  said  to  rest 
upon  the  same  principle  as  that  which  disenables  him  from  shifting  to  an 
independent  contractor  liability  for  negligence  in  the  performance  of  work 
which  necessarily  tends  to  expose  others  to  danger,  unless  the  work  is  care- 
fully guarded.  It  seems  by  the  great  weight  of  authority  and  reason  that  this 
cannot  be  done."    Minshall,  C.  J.,  in  Railway  v.  Shields,  47  Ohio  St.  387,  393. 


294  LIABILITY   TO   THIRD   PERSONS. 

the  various  courts  of  appeal,  and  so  great  a  diversity  of  opinion 
amongst  respectable  text-writers,  as  that  governing  the  rights  and 
liabilities  of  insurers. 

When  the  universal  custom  was  that  the  underwriter  sat  in  his 
city  office  and  issued  policies  of  insurance,  relying  solely  upon  the 
representations  of  the  applicant  for  information,  whether  as  to  his 
own  physical  state  or  as  to  the  value,  condition  and  surroundings  of 
his  buildings,  the  insurer  would  have  dealt  at  a  great  disadvant- 
age with  the  unreliable  class  of  his  customers,  if  a  contract  procured 
b}^  false  representations  had  not  been  declared  fraudulent  and  void, 
or  if  the  disregard  of  stipulations  intended  to  insure  the  observance 
of  ordinary  care  in  the  habits  of  a  person,  or  the  use  of  a  building, 
had  not  been  held  sufficient  to  defeat  a  recovery  upon  the  death 
of  the  person  or  the  destruction  of  the  property  insured.  But  when, 
in  the  new  order  of  things,  the  active  competition  between  compa- 
nies brought  to  every  man's  door  a  soliciting  agent,  furnished  with 
instruction  and  advised  as  to  his  duty  by  the  best  trained  business 
men  and  ablest  lawyers  in  the  country,  the  shrewdest  and  most  un- 
scrupulous of  applicants  could  hope  to  get  no  advantage,  and  the 
untrained  or  uneducated  among  the  number  labored  under  a  decided 
disadvantage  in  answering  questions,  not  always  comprehended  in 
all  of  their  bearings  and  in  receiving  subsequently  from  its  chief 
office,  in  a  distant  city,  the  contract  of  the  company,  limiting  its 
own  liability  and  imposing  new  duties  upon  the  insured  by  means  of 
conditions  never  heard  of  before  the  issuing  of  the  policy,  and  often 
never  read,  or  imperfectly  understood  afterwards.  Ubi  eadam  ra- 
tio, ibi  idem  jus.  When  custom  reverses  the  position  of  the  parties, 
it  would  be  strange  if  the  law  should  undergo  no  modification. 

The  local  agent  of  the  defendant  company  testified  that,  with  a 
knowledge  of  the  deafness  of  the  plaintiff,  he  filled  out  his  appli- 
cation for  an  accident  policy,  signed  his  own  name  on  the  back  of 
it,  and  forwarded  it  to  the  principal  office  in  New  York.  The  pol- 
icy came  in  due  course  of  time  and  was  delivered  to  the  plaintiff, 
who  paid  all  of  the  premiums  assessed  against  him,  until  he  was  so 
seriously  wounded  in  his  arm  by  the  accidental  discharge  of  a  gun, 
in  the  hands  of  a  friend,  as  to  make  amputation  necessary.  The 
company  took  a  receipt  by  way  of  compromise,  which,  under  the 
findings  of  the  jury,  is  not  evidence  of  payment,  and,  as  there  w^s 
no  exception  to  the  rulings  or  charge  involving  the  question  of 
payment  or  satisfaction,  we  are  brought  to  the  consideration  of  the 
leading  point.  In  the  application  for  membership  is  the  following 
paragraph : 

"I  have  never  had,  nor  am  I  subject  to,  fits,  disorders  of  the  brain, 
*  *  *  or  any  bodily  or  mental  infirmity,  except  had  an  attack  of 
rheumatism  six  years  ago." 

The  defendant  now  contends  that  the  representation  by  the 
plaintiff   that   he   was    free   from   bodily   infirmity   was    false   and 


^95 


tuted  p 


ation.    But  the  plaintiff,  where  re; 
;^lication  are  admi'^^''  *■'•  ■  •■  -'-'•■• 
fraudulent  inteni 
ihe  local  a; 
■  of  the  Stat 

.1,     iippl'v..' V  CU 

■  of  this  coii. 
ie  ear  of  a  deal  , 
...,:..;.-..;    K  ..-.:,  write  for  him  a. 
time  to  be  untrue,  to  a  question  in  th; 

■■      ''      * "3  they  fall  uu.  . 

nd,  stand  aside  a 
aiiow  It.   witii  the  premiums  in  its  ■: 
account  of  a  statement  known  by  the 
■■:  prepared  it  for  the  applicant's  signature, 
luced  the  courts  to  ^ard  the  underwriter  ag  ■ 
s  as  to  facts  within  the  peculiar  or  exclusive  kr 
v.ijis  no  longer  exists,  when  the  agent  of  the  insu. ... 
.d.  has  as  full  knowledge  of  the  truth  or  falsity  of  an 
ired  by  him  as  has  the  insured.     Cessantc  ratione, 
Where  the  local  agent  of  a  company  has  actual 
falsity  of  an  an-  -  lion  in  the  applic 

tor  the  insured,  ..e  of  the  agent  v. 

.  'Hipany,  and  it  v  allowed  to  avoid  thu 

rriiid  of  false  wan  ,.      .     ,   Am.  &  Fn-    F,;.  v 

i§  140-143;  -^  ''^'-  ?'.S  497-501;  D- 

id.,  93  N.  C  240    -      ---    •    '■ 
]n<5.  Co..  S4  Cal  J 
=  1,  71^111.    ' 
\  Wis.  ;:•' 


/aiver  or  works  an  c 
"    "■  :^  ufjon  the  ] 
it  is.  that  in 

1  and  '  i: 
.  its  vn' 
as  a  g 

.  -^  0.497.'    .     -      . 

ig  with  the  plaintiff,  th. 

-   -unreasonable  to  presui 

led  to  affirm  that  to  I. 

natent  dr' 

V.  Ins. 


LTABILII 


ie  text-\^ 
V\  nti\  tjie  universal 


age  with  the  u. 
by  false  retn-- 
or  if  the  <' 
nf  ordinal 
had  not  i 


The  loi 


.iid  ail 


never  had,  r 
T  any  bodilv 
rheumatism  six  years  i' 
The   defendant   no^\ 
plaintiff   that   he   was 


.    \,    of  opini    ^ 
ung  the  rights  a; 

.ler writer  sat  in  his 

civing  solely  upon  the 

it  ion,  whether  as  to  his 

on  and  surroundings  of 

'  I  at  a  great  disadvant- 

mers,  if  a  contract  procured 

,     declared  fraudulent  and  void, 

.tended  to  insure  the  observance 

;>erson,  or  the  use  of  a  building, 

feat  a  recovery  upon  the  death 

jl  the  property  insured.    But  when, 

active  competition  between  conipa- 

or  a  soliciting  agent,  furnished  with 

lis  duty  by  tht-  ]w>*  trained  business 

country,  the  t  and  most  un- 

hope  to  gel  li-  ...vantage,  and  the 

,  the  number  labored  under  a  decided 

nnprehended  in 

from  its  chief 

alracL  oi  liiC  uuuipany,  limiting  its 

duties  upon  the  insured  by  means  of 

:  the  issuing  of  the  policy,  and  often 

erstood  afterwards.     Ubi  eadam  rn- 

■  \  reverses  the  position  of  the  partii 

should  undergo  no  modification. 

idant  company  testified  that,  wit); 

tift,  he  filled  out  his  appli- 
-  own  name  on  the  back  of 
:  office  in  New  York.    The  pol- 
!  was  delivered  to  the  plaintiff, 
•ed  against  him,  until  he  was 
e  accidental  discharge  of  a  guu, 
ike  amputation  necessary.     The 
e.  which,  under  the 
",  and,  as  there  was 
if.volvjng  the  question  ■  : 
■  to  the  consideration  of  ^ 
lembership  is  the  followri 

> abject  to,  fits,  disorders  of  the  br.". 

■'■■■-■•■'        ^  ■  •^  u^^  an  attack 

iiie    representation    by    tlie 
.y    infirmity   was    false   and 


\ 


KNOWLEDGE   OF   AGENT.  295 

fraudulent,  and  constituted  a  material  inducement  to  the  defendant 
to  issue  the  policy.  Ordinarily,  the  defendant  could  avoid  the  per- 
formance of  the  contract  by  showing  the  falsity  of  a  material  state- 
ment in  the  application.  But  the  plaintiff,  where  representations  con- 
tained in  the  application  are  admitted  to  be  untrue,  may  rebut  the 
presumption  of  fraudulent  intent  arising  from  such  admission  by 
showing  that  the  local  agent  of  the  company,  with  full  knowledge 
of  the  falsity  of  the  statement,  entered  the  answers  of  the  insured 
and  forwarded  the  application,  approved  by  his  own  endorsement. 
We  cannot  give  the  sanction  of  this  court  to  the  doctrine  that  a 
local  agent  may  scream  into  the  ear  of  a  deaf  person  solicitations  to 
apply  for  an  accident  policy,  write  for  him  an  answer,  which  he 
knows  at  the  time  to  be  untrue,  to  a  question  in  the  application,  pro- 
cure the  policy,  receive  the  premiums  as  they  fall  due,  and  when  the 
insured  becomes  prostrate  from  a  wound,  stand  aside  at  the  bidding 
of  the  principal  and  allow  it,  with  the  premiums  in  its  coffers,  to 
avoid  the  contract  on  account  of  a  statement  known  by  the  agent  to 
be  false  when  he  prepared  it  for  the  applicant's  signature.  The 
reason  which  induced  the  courts  to  guard  the  underwriter  against 
misrepresentations  as  to  facts  within  the  peculiar  or  exclusive  knowl- 
edge of  applicants  no  longer  exists,  when  the  agent  of  the  insurer, 
on  the  ground,  has  as  full  knowledge  of  the  truth  or  falsity  of  an 
application  prepared  by  him  as  has  the  insured.  Ccssantc  ratione, 
cessat  et  ipsa  lex.  Where  the  local  agent  of  a  company  has  actual 
knowledge  of  the  falsity  of  an  answer  to  a  question  in  the  application 
which  he  writes  for  the  insured,  the  knowledge  of  the  agent  will  be 
imputed  to  the  company,  and  it  will  not  be  allo\ved  to  avoid  the  con- 
tract on  the  ground  of  false  warranty,  i  Am.  &  Eng.  Ency.,  333 ; 
I  May  on  Ins.,  §§  140-143;  2  id.,  §§  497-501;  Dupree  v.  Ins.  Co., 
92  N.  C.  417;  id.,  93  N.  C.  240;  Hornthal  v.  Ins.  Co.,  88  X.  C. 
73 :  Fishbeck  v.  Ins.  Co.,  54  Cal.  422 ;  Eggleston  v.  Ins.  Co.,  65  Iowa 
308;  Ins.  Co.  V.  Fish,  71  111.  620;  Mullen  v.  Ins.  Co.,  58  Vt.  113; 
Shaffer  v.  Ins.  Co.,  53  Wis.  361  ;  Ins.  Co.  v.  McCrea,  8  Lea  (Tenn.) 

513- 

It  is  not  material  whether  we  say  that  the  conduct  of  the  local 
agent  amounts  to  a  waiver  or  works  an  estoppel  on  the  insurer,  as 
the  authorities  are  in  conflict  upon  the  point,  i  Alay,  supra.  No. 
143 ;  2  id.  No.  498.  Certain,  it  is,  that  in  such  cases  the  knowledge 
of  the  agent  is  imputed  to  the  principal  and  "to  deliver  a  policy  with 
a  full  knowledge  of  facts,  upon  which  its  validity  may  be  disputed, 
and  then  insist  upon  those  facts  as  a  ground  of  avoidance,  is  to 
attempt  a  fraud."  2  May  supra.  No.  497.  The  agent  necessarily  dis- 
covered, while  negotiating  with  the  plaintiff,  that  the  latter  was 
deaf ;  and  it  would  be  as  unreasonable  to  presume  that  both  the 
agent  and  the  applicant  intended  to  affirm  that  to  be  true  which  they 
knew  to  be  false,  as  that  such  a  patent  defect  as  the  loss  of  an  eye 
in  a  horse  did  not  exist.     Leslie  v.  Ins.  Co.,  5  T.  &  C.   (N.  Y.), 


296  LIABILITY   TO   THIRD   PERSONS. 

193;  Ins.  Co.  V,  Mahone,  21  Wallace  152;  Brown  v.  Gray,  6  Jo. 
103 ;  Fields  v.  Rouse,  3  Jones  72. 

We  do  not  propose  to  go  behind  the  verdict  and  the  instruction 
upon  which  it  was  founded,  and  avoid  the  reaffirmation  of  the  prin- 
ciples announced  on  the  former  hearing  of  this  case  by  determining 
what  is  a  bodily  infirmity,  since,  conceding  deafness  to  come  under 
such  designation,  we  think  that  there  was  no  error  in  the  rulings  of 
the  court  below.  As  alread}^  intimated,  it  is  immaterial  whether 
we  declare  that  the  agent  by  his  conduct  waived  objection  to  the 
inaccurate  statement,  or  that  by  writing  it  down,  or  having  full 
knowledge  of  the  real  truth  of  the  matter,  his  conduct  operated  to 
estop  the  company,  since,  in  view  of  what  occurred,  when  the  appli- 
cation was  made  out,  and  before,  the  avoidance  of  liability  under 
the  contract,  because  of  the  infirmity  known  by  the  agent  to  exist, 
would  be  fraudulent  and  unjust.    There  is  no  error. 

Affirmed.^ 


ROSS  AND  WAITE,  Executors,  v.  HOUSTON  and  CANNON. 

1853.     High  Court  of  Errors  and  Appeals  of  Mississippi. 

25  Miss.  591. 

Mr.  Justice  Yerger  delivered  the  opinion  of  the  court. 

James  C.  Alderson,  by  his  agent,  George  West,  became  the  pur- 
chaser at  a  sale  made  by  virtue  of  an  execution  against  Nathaniel 
Anderson  of  a  tract  of  land.  This  land  he  afterwards  sold  to  the 
defendant,  Houston,  by  a  quitclaim  deed,  Houston  being  informed  of 
the  manner  in  which  Alderson  acquired  his  title.    The  defendants, 

'See  The  Distilled  Spirits,  11  Wall.  (U.  S.)  356. 

It  was  held  in  Brown  v.  Columbus,  75  Atl.  917,  that  one  who  purchases 
realty  through  an  agent  will  be  charged  with  the  knowledge  of  the  agent  re- 
garding the  condition  of  the  title. 

In  Jackson  Co.  v.  Schmid,  124  S.  W.  1074,  a  statute  provided  that 
any  dramshop  keeper  selling  liquor  to  any  habitual  drvmkard  after  receiv- 
ing notice  from  the  wife  of  the  drunkard  not  to  sell,  must  forfeit  a  certain  sum 
of  money  to  the  wife.  It  was  held  that  notice  given  by  the  wife  to  the  agent 
of  a  dramshop  keeper  makes  the  latter  liable  under  this  statute. 

The  agent's  knowledge  of  the  vicious  character  of  domestic  animals  is  suf- 
ficient to  make  the  owner  liable  for  injuries  caused  by  the  animals.  Lynch 
V.  Kineth.  36  Wash.  368. 

In  Neal  v.  Hardware  Co.,  122  N.  Car.  104,  the  court  said  that  the  principal 
is  bound  by  knowledge  of  facts  which  the  agent  could  have  known  by  the  use 
of  ordinary  care. 

"The  notice  to  the  agent,  to  operate  as  constructive  notice  to  the  principal, 
must  be  such  as  would  reasonably  charge  the  agent,  on  failure  to  repeat,  with 
breach  of  faith  and  duty  to  his  employer,  and  therefore  the  law  will,  under 
such  circumstances  only,  presume  he  has  communicated  his  knowledge  to  his 
principal."    Ray,  J.,  in  Day  v.  Wamsley,  23  Ind.  145,  147. 


at  they 


:V  a  nnitclaiTn  H( 


!ie  facts  of  the  case ;  yet  t; 
Aldersor  '-■     ■-audulenl  as  ' 
son,  buv  d  by  him  f. 

,,  ciiat  when  the 

'de,  he  was  not  . 

:'  it  by  deed  to  A.  J- 
:  agent  by  whom  A 11 
iiad  notice  when  he  made  the  purchas' 
iid  not  own  the  land,  and  that  he  had  ii..  i.w-,. 
not  appear,  that  Alderson  knew  these  facts 
->n ;  or  that  West,  the  agent,  by  wliom  he  pure); 
ted  to  him  the  knowledofe  be  had  received  c, 
notice  had  ever  i  at  any  time 

'  n-vn  ^hr^  land.  -ttd  to  A.  F. 


.,'--Vll-,     W'lib    ':\i.r< 

and  though 
,  that  the  h; 
:h  whom  he  1 


y  know. 
o  Hopio 
i.ner  of  ' 


will  charge  him  with  knowle 
';itl  notice. 

as  a  principle  of  law,  foui 


-Ct  tioii. 


o  an  agv 


or  qualiiv   ■  .  i., 
ts  to  the  princip: 


206 


LIABILITY   TO  THIRD   PFRSON?. 


vT.-.h 


103 ;  Fields  v. 

We  do  not 

ipon  which  it 

Ro: 

propi.  ,-A 
was  fo 

SUCi. 

the 

we  declare  ti: 

knoy 

estoi 

cat  it. 

'"iray,  6  j.. 

...i  .,1V  instruction 

rniation  of  the  prin- 

.   '       V  ■-■rmining 

.  c  under 

.15  no  error  in  the  rulings  of 

d,  it  is  immaterial  whether 

luct  waived  objection  to  the 

...ling  it  down,  or  having  full 

matter,  his  conduct  operated  to 

'f  what  occurred,  when  the  appli- 

the  avoidance  of  liability  under 

aiity  known  by  the  agent  to  exist, 

There  is  no  error. 


lOUSTON  AND  CANNON. 


.;ORS  AK.i 

Miss.  59  i, 


F  Mississippi. 


the  manner  in  w- 

*SeeT) 
Tt  w3<; 


ed  the  opinion  of  the  court. 

-.  George  West,  became  tin?  pm- 
i  an  execution  against  Nathaniel 

This  land  he  afterwards  sold  to  the 

!"im  deed,  Houston  being  informed  ot 

quired  1  The  defendants, 

^U.  S.)  35^. 

75  All.  917,  that  one  who  purck  ; 
J  with  the  knowledge  of  the  agent  rt 

^^^    1074,    a   statute   provided    t!"^ 
habitual  drunkard  after  rev 

',    i'V.    ii.i.-:  fiirfeit  a  certain  .,.;.j. 
wife  to  the  agent 
tutc. 

stic  animals  i?    ■ 
.e  animals.     L., 

;  t  said  that  the  prin' 
I'.id  have  known  by  tht 

•  ••    -  notice  to  the  •^•■^'■'"■ 
-'  faihire  to  re 
iorc  the  law  w^   . 
i.icated  his  knowledge  '■• 
■45>  H7- 


KNOWLEDGE   OF   AGENT.  297 

who  are  sued  upon  a  writing  obligatory  given  for  the  purchase- 
money,  resist  payment  upon  the  ground  that  they  were  deceived  and 
defrauded  by  Alderson  in  the  sale  of  the  land,  while  they  admit  that 
Alderson  only  sold  by  a  quitclaim  deed,  and  that  they  knew  he  had 
obtained  title  to  the  land  by  virtue  of  an  execution  sale  of  it,  as  the 
property  of  Nathaniel  Anderson ;  and  that  they  took  upon  themselves 
the  risk  of  the  validity  and  legality  of  the  execution,  and  the  sale  un- 
der it,  so  far  as  the  proceedings  connected  with  the  sale  disclosed 
upon  their  face  the  facts  of  the  case ;  yet  they  say,  that  the  sale  under 
the  execution  to  Alderson  was  fraudulent  and  void,  which  fact  was 
known  to  Alderson,  but  concealed  by  him  from  them.  It  appears 
from  the  pleadings  and  proof,  that  when  the  sale  under  the  execu- 
tion against  Anderson  was  made,  he  was  not  the  owner  of  the  land, 
but  had  previously  sold  and  conveyed  it  by  deed  to  A.  F.  Hopkins 
&  Co.  It  also  appears,  that  West,  the  agent  by  whom  Alderson  pur- 
chased the  land,  had  notice  when  he  made  the  purchase  for  Alderson 
that  Anderson  did  not  own  the  land,  and  that  he  had  no  interest  in 
it.  But  it  does  not  appear,  that  Alderson  knew  these  facts  when 
he  sold  to  Houston ;  or  that  West,  the  agent,  by  whom  he  purchased, 
ever  communicated  to  him  the  knowledge  he  had  received  on  the 
subject;  or  that  notice  had  ever  been  given  to  him  at  any  time,  that 
Anderson  did  not  own  the  land,  and  that  it  belonged  to  A.  F.  Hop- 
kins &  Co. 

On  this  state  of  facts,  it  is  contended  by  Houston  and  Cannon, 
that  although  Alderson  did  not  have  notice  in  fact,  the  notice  given 
to  West,  the  agent,  was  notice  in  law  to  Alderson  of  the  title  of 
Hopkins  &  Co. ;  and  though  he  did  not  actually  know,  when  he  sold 
to  the  defendant,  that  the  land  belonged  to  Hopkins  &  Co.,  yet,  as 
the  agent  through  whom  he  became  the  owner  of  the  land  did  know 
this  fact,  the  law  will  charge  him  with  knowledge  of  all  the  facts  of 
which  his  agent  had  notice. 

It  is  certainly  true  as  a  principle  of  law,  founded  upon  reason  and 
sound  policy,  that  wherever  a  party  purchases  property  through 
the  agency  of  another,  notice,  communicated  to  that  agent  during 
the  progress  of  that  negotiation,  of  the  rights  of  third  parties  to 
the  property,  will  be  held,  in  any  controversy  with  such  third  parties 
in  relation  to  it,  as  equivalent  to  direct  notice  to  the  principal.  2 
Sugd.  on  Vend.  215. 

So,  too,  notice  given  to  an  agent  employed  to  purchase  property 
of  any  defect  in  the  title  or  quality  of  the  property,  will  be  equiva- 
lent to  notice  of  those  facts  to  the  principal,  in  any  controversy  that 
may  arise  between  him  and  the  vendor  in  relation  to  the  property. 

We  think  it  may  also  be  fairly  deduced  from  the  adjudged  cases, 
and  from  principle,  that  if  a  party  employ  an  agent  to  sell  prop- 
erty, and  notice  be  given  to  that  agent  of  such  defects  in  the  title  or 
quality  of  the  estate,  which  if  known  to  the  principal,  it  would  have 
been  his  duty  to  disclose  to  the  purchaser,  it  would  be  the  duty  of 


298  LIABILITY   TO  THIRD   PERSONS. 

the  agent  also  to  disclose  them  to  the  purchaser ;  and  in  the  event 
of  his  failure  to  do  so,  that  the  purchaser  might  be  relieved  from 
the  contract  in  the  same  manner  and  to  the  same  extent,  that  he 
would  have  been  relieved,  if  the  principal  had  known  the  facts,  and 
made  the  sale  without  disclosing  them ;  and  this,  too,  although  the 
principal,  when  his  agent  made  the  sale,  was  ignorant  of  the  defects, 
the  title,  or  quality  of  the  estate.  This  is  certainly  as  far  as  any 
adjudged  case,  or  any  sound  legal  principle,  would  warrant  the  court 
in  extending  this  doctrine  of  implied  notice. 

But  the  case  before  us  does  not  fall  within  the  operation  of  either 
of  the  foregoing  rules.  On  the  contrary,  the  attempt  is  now  made 
to  extend  the  doctrine  still  further,  and  we  are  asked  to  declare  not 
only,  that  notice  given  to  an  agent  to  buy  property  shall  effect  the 
conscience  of  the  principal  in  every  matter  touching  the  purchase  of 
the  property,  and  the  title  thereby  acquired,  so  far  as  the  rights  of 
third  parties  exist  in  relation  to  the  property,  but  also  that  knowl- 
edge of  defects  in  the  title  or  quality  of  the  estate  thus  possessed 
by  an  agent  employed  to  purchase,  shall  be  considered  in  law  as 
made  known,  though  in  fact  they  were  not  made  known,  to  the  prin- 
cipal, so  as  to  affect  his  conscience  in  any  future  sale  he  might  make 
of  the  property. 

We  do  not  believe  either  the  law  or  sound  policy  will  warrant 
such  an  extension  of  the  rule. 

So  far  as  the  rule  has  heretofore  been  established,  that  notice  to 
the  agent  shall  be  treated  as  notice  to  the  principal,  we  are  willing 
to  enforce  it,  as  a  rule  of  sound  policy,  although  in  individual  cases  it 
may  sometimes  operate  harshly.  But  we  are  not  willing  to  extend  it 
further  than  it  has  heretofore  been  carried ;  and  we  are,  therefore, 
of  opinion,  that  if  Alderson,  at  the  time  he  sold  to  Houston,  did  not 
know  in  fact  that  he  had  acquired  no  title  to  the  land  by  the  purchase 
under  the  execution  sale  against  Anderson,  because  the  land  be- 
longed to  A.  F.  Hopkins  &  Co.,  and  not  to  Anderson ;  the  notice  of 
those  facts  given  to  West,  the  agent,  by  whom  he  purchased  the 
land,  will  not  be  treated  as  implied  notice,  so  as  to  affect  his  con- 
science in  the  subsequent  sale  made  by  him  of  the  property,  and 
thereby  entitle  the  purchaser  to  insist  upon  an  avoidance  of  his  con- 
tract. 

As  the  circuit  judge  laid  down  the  law  differently,  we  must  re- 
verse the  judgment,  and  remand  the  cause. ^ 

'  Compare  Sec.  Nat.  Bk.  v.  Currcn.  36  la.  555. 


)::;OWLEDG! 


ii'- 


PFyKSVLVAXIA 


Thai  SI 


ii-/  f,-iC 


IS  or  alienee. 


>  not  in  (lis; 
.  :d  in  McCar  vealth,  5 

justice  at  nisi  pri 

:,  6  Plnia,  R.  yo,  that  this  liabihty  is  10 
^  ays  f.  r  tlir  veArrh,  and  does  not  extend  to  1 


"*■  •■*  ■  •"  all  viosv.-,  L.;u  of  the  fact  that  the  search  in 
•St  of  the  conveyancer  of  the  defendants,  was 
>y  the  ov  '  r  that  he 

money  .^ts.  ard 

sed,  an<! 

-  the  en.,  :.      ...;  :  .  -      

efendants  are  affected  with  this  V-. 
w  .....    i^vhich  was  omitted  ir. 
!e  and  well  settled. 

:U    mat    I:.-.    Y^XiV,Ll]j3.!     ' 

•n  the  .••>Mr-e  of  the 

.n  of  th  i>criiect! 

\j,  not  ',  i'>  ]i"'T.', 

:k,  8AV,  3rackei 

-'  ''^■•-  '.     it  is  a  n...  --.v-    L.-  -n 

.0  man  can  be  supposed  r 

former  occurrences,  an-i 

in  hi?  mine]  at  the  time, 

of  the  rule 

-err  hc^t.  :^r  ' 

of  tne 

cy  that  :...  ^,^- 
^al.     Notice  to  i 

ty-four  h'-  - 

;  went  V- ' 


[ lABJL! 

u  the  evv 
d  from 
•hat  he 
,<i  kiiowu  the  facts,  and 
_     ..  i  this,  too,  althdugfh  th'^ 

oal,  whc  was  i,£;iiorant  of  the  defe*^ 

tie,  or  «r  .3  is  certainly  as  far  as  au\ 

ged  case,  .pie,  would  warrant  the  court 

;.i  c-vten<^'  notice. 

But  i\v:'  vithin  the  operation  of  either 

of  th.  ry,  the  attempt  is  now  made 

to  (v>:  I,  we  are  asked  to  declare  not 

n!v,  '  CO  buy  property  shall  effect  the 

c  U.J'  matter  touching  the  purchase  "■ 

the  acquired,  so  far  as  the  ri;^hti 

'■..  Tiie  property,  but  also  that  knowi 

quality  of  the  estate  thus  possessed 

;,  shall  be  considered  in  law  as 

ere  nr^t  -rade  known,  to  the  prin- 

nce  in  a  •  he  might  make 

r  sound  policy  will  warrant 

'  been  established,  that  notice 

^  to  the  principal,  we  are  willmg 

■    >  y,  although  in  individual  cases  it 

But  we  are  not  willing  to  extend  it 

!)een  carried;  and  we  are,  therefore, 

"t    '  the  time  he  sold  to  Houston,  did  not 

kno\v  At   .  '  "o  title  to  the  land  by  the  purchase 

under  th  Anderson,  because  the  land  be- 

.1  not  to  Anderson;  the  notice  of 
ent,  by  whom  he  purchased  the 
;  notice,  so  as  to  affect  his  cr 
':  by  him  of  the  property,  a* 
-on  an  avoidance  of  his  con- 
circuit  lifFerently,  we  must 
iudsnmei 


KNO\\XEDGE   OF  AGENT.  299 

HOUSEMAN  V.  GIRARD  MUTUAL  BUILDING  AND  LOAN 

ASSOCIATION. 

1876.     Supreme  Court  of  Pennsylvania.     8i  Pa.  St.  256. 

Sharswood,  J. — This  was  an  action  instituted  in  the  court  below 
by  the  defendants  in  error  to  recover  from  the  plaintiff  in  error,  who 
was  formerly  recorded  of  deeds  for  the  county  of  Philadelphia,  dam- 
ages for  a  false  certificate  of  search  issued  by  him,  or  by  his  author- 
ity. That  such  a  certificate  was  issued  false  in  fact;  that  it  was 
ordered  and  paid  for  by  the  defendants,  and  that  in  consequence  they 
suffered  damages,  were  points  not  in  dispute.  That  the  recorder 
is  prima  facie  liable  to  respond  in  damages  for  such  false  search, 
has  been  settled  in  McCaraher  v.  Commonwealth,  5  W.  &  S.  21,  and 
is  no  longer  an  open  question. 

It  was  decided  by  the  present  chief  justice  at  nisi  priiis,  in  Com- 
monwealth v.  Kellogg,  6  Phila.  R.  90,  that  this  liability  is  to  the 
party  who  asks  and  pays  for  the  search,  and  does  not  extend  to  his 
assigns  or  alienee. 

The  contention  here  all  grows  out  of  the  fact  that  the  search  in 
this  case,  by  the  request  of  the  conveyancer  of  the  defendants,  was 
ordered  and  paid  for  by  the  owner  of  the  premises,  in  order  that  he 
might  obtain  a  loan  of  money  on  mortgage  from  the  defendants,  and 
the  certificate  was  so  used,  and  the  money  so  obtained. 

It  is  urged,  that  by  the  employment  of  the  owner  as  the  agent 
for  this  purpose,  the  defendants  are  affected  with  this  knowledge  of 
the  existence  of  the  mortgage,  which  was  omitted  in  the  certificate. 
This  is  a  very  familiar  principle  and  well  settled.  But  it  is  equally 
well  settled  that  the  principal  is  only  to  be  affected  by  knowledge 
acquired  in  the  course  of  the  business  in  which  the  agent  was  em- 
ployed. This  limitation  of  the  rule  is  perfectly  well  established  by 
our  own  cases,  and  it  is  not  necessary  to  look  further :  Hood  v. 
Fahnestock,  8  Watts  489 ;  Bracken  v.  Miller,  4  W.  &  S.  no;  Martin 
v.  Jackson,  3  Casey  508.  It  is  a  mistake  to  suppose  that  it  depends 
upon  the  reason  that  no  man  can  be  supposed  to  always  carry  in  his 
mind  a  recollection  of  former  occurrences,  and  that  if  it  be  proved 
that  he  actually  had  it  in  his  mind  at  the  time,  the  rule  is  different. 
It  may  support  the  reasonableness  of  the  rule  to  consider  that  the 
memory  of  men  is  fallible  in  the  very  best,  and  varies  in  different 
men.  But  the  true  reason  of  the  limitation  is  a  technical  one,  that 
it  is  only  during  the  agency  that  the  agent  represents,  and  stands 
in  the  shoes  of  his  principal.  Notice  to  him  is  then  notice  to  his 
principal.  Notice  to  him  twenty-four  hours  before  the  relation  com- 
menced is  no  more  notice  than  twenty-four  hours  after  it  had  ceased 
would  be.  Knowledge  can  be  no  better  than  direct  actual  notice. 
It  was  incumbent  on  the  plaintiff"  to  show  that  the  knowledge  of  the 


300  LIABILITY   TO   THIRD   PERSONS. 

agent,  to  use  the  accurate  language  of  one  of  our  cases,  "was  gained 
in  the  transaction  in  which  he  was  employed.''  There  was  not  only 
no  evidence  of  this  offer  by  the  plaintiff,  but  it  was  plain  that  it  had 
been  gained  before,  and  in  an  entirely  different  transaction.  It  is 
not  necessary  to  consider  in  this  view  of  the  matter  whether  the  al- 
leged agent  was  really  such,  or  only  the  servant  or  clerk  of  the  con- 
veyancer. 

It  is  urged  that  the  conveyancer  of  the  defendants,  in  the  employ- 
ment of  the  owner,  who  was  the  applicant  for  the  loan,  and  inter- 
ested, therefore,  to  obtain  clear  searches,  was  guilty  of  negligence, 
which  is  imputable  to  his  constituents,  and  will,  therefore,  bar  their 
recovery.  But  this  is  to  maintain  that  a  man  is  to  presume  fraud 
or  forgery  in  one,  whose  character  is  good,  and  that  if  he  does  not 
he  is  prima  facie  negligent.  When  the  scrivener  received  a  clear 
certificate  under  the  undoubted  official  seal  of  the  recorder,  he  sure- 
ly was  not  bound  to  presume  that  a  fraud  had  been  committed  on 
the  recorder  or  his  clerk,  nor  was  there  any  evidence  from  which 
such  fraud  could  be  inferred.  If  there  was  no  such  presumption, 
neither  would  there  arise  any  presumption  beforehand,  that  the 
owner  would  succeed  in  corrupting  or  deceiving  the  clerk  or  servant 
of  the  plaintiff.  Without  some  such  presumption,  how  can  it  be 
said  that  it  was  prima  facie  evidence  of  negligence?  that  the  owner 
was  employed  in  the  mere  ministerial  service  of  ordinary  paying 
for  and  procuring  the  certificate? 

We  are  of  opinion  that  the  learned  judge  was  right  in  directing 
a  verdict  for  the  plaintiffs  below. 

Judgment  affirmed.^ 


FAIRFIELD  SAVINGS  BANK  v.  CHASE. 
1881.     Supreme  Judicial  Court  of  Maine.     72  Me.  226. 

Writ  of  entry  to  recover  possession  of  a  certain  parcel  of  land, 
described  in  a  mortgage  from  John  W.  Chase  to  the  plaintiff  cor- 
poration, dated  the  tenth  day  of  March,  1876,  and  duly  recorded  on 
that  day.  The  defendant  seasonably  disclaimed  as  to  one  undivided 
half  of  the  demanded  premises,  but  claimed  title  to  the  other  un- 
divided half.  The  plea  was  the  general  issue  as  to  the  undivided 
half  claimed  by  the  defendant.  The  defendant  based  his  claim  to 
one  undivided  half  upon  a  deed  from  John  W.  Chase  to  him,  dated 
the  eighth  day  of  March,  1876,  but  not  recorded  till  the  twenty- 
eighth  day  of  March,  1876. 

The  attorney  who  wrote  and  took  the  acknowledgment  of  both 

^Accord:    Bessemer,  etc.,  Co.  v.  Jenkins,  iii  Ala.  135. 


-aftgage, 

It  was  not  ck. 

,^  1  ..,■...  1- .... 


1?    PlirpOF-^    of    c,;  .T^ioc;f^f>n 


recordt 

..  for  tl 
J  a  verrj 
■  i'lstriu;- 

to  a  bank  director  or  trustee,  oi 

'■^•-■[  r>r,o    <■..;  ■,■,]:,,,  officially  or  a^  ^.. 
operative  as  a  dt 

<e  3cts 

-r^,    Carrv    •  .at 

IS  notice  to  ■  sequence,  and 

.     A  single  trustee  : 


ui    IfUSitrcS   lUrU'vcs   a  <inecL' 
■rt   for  ;t^  !l  •:■_:  ,-..     1,  >  ^^:.-r    y.. 


ak  ot  L 


e^cT 


■tion.     Ir 
.  ;;■!    i\  nether  the 
or  clerk  of  the  «.•• 

ft  i^  V  -aants,  in  the  emp] 

for  the  loan,  and  inter- 
\as  g'viilty  of  negligence 
':  will,  therefore,  bar  ti: 
-"'I  is  to  presume  fr. 
'.     VI  that  if  he  does  > 
'.'-■■  scrivener  received  a  clea; 
-on]  of  the  recorder,  he  siii-e- 


h  presumpti' 
hand,   that    ■ 
-lerk  or  serv; 
,  how  can  it 
?  that  the  o\\ 
•rdinary  paying 

i>-ht  in  fi 


•T  T  A  c;f 


.  parcel  o i  i:: 
'je  plaintiflF  - 
i.'.ly  reco- 
o  one  ur  _ 
;e  to  the  other 
•^  to  the  undivi 
ed  his  clair; 


\vlcdgfment  of  both 


KNOWLEDGE   OF   AGENT.  3OI 

the  deed  and  the  mortgage,  was  at  that  time  a  trustee  of  the  plain- 
tiff corporation.  It  was  not  claimed  at  the  trial  that  any  other  offi- 
cer of  the  bank  had  any  knowledge  of  the  existence  of  the  deed  to 
the  defendant,  at  the  time  of  the  execution  or  recording  of  said 
mortgage. 

The  court,  for  the  purpose  of  settling  a  question  of  fact,  ruled, 
pro  forma,  that  if  the  attorney,  at  the  time  of  the  execution  of  the 
mortgage,  had  knowledge  that  the  deed  had  been  executed  and  de- 
livered by  John  W.  Chase  to  the  defendant,  this  would  be  sufficient 
notice  to  the  plaintiff  corporation  to  overcome  the  legal  effect  of 
the  fact  that  the  mortgage  was  recorded  before  the  deed,  and  that, 
if  the  jury  should  find  that  the  attorney  had  such  knowledge,  they 
should  return  a  verdict  for  the  defendant.  The  jury,  under  this 
instruction,  returned  a  verdict  for  the  defendant. 

To  the  foregoing  instructions  the  plaintiff  excepted. 

Peters,  J. — A  notice  to  a  bank  director  or  trustee,  or  knowledge 
obtained  by  him,  while  not  engaged  either  officially  or  as  an  agent 
or  attorney  in  the  business  of  the  bank,  is  inoperative  as  a  notice  to 
the  bank.  If  otherwise,  corporations  would  incur  the  same  liability 
for  the  unofficial  acts  of  directors  that  partnerships  do  for  the  acts 
of  partners;  and  corporate  business  would  be  subjected  oftentimes 
to  extraordinary  confusion  and  hazards.  Carry  the  proposition,  that 
notice  to  a  director  is  notice  to  the  bank,  to  its  logical  sequence,  and 
a  corporation  might  be  made  responsible  for  all  the  frauds  and  all 
the  negligences,  pertaining  to  its  business,  of  any  and  all  its  directors 
not  officially  employed.  Any  one  director  would  have  as  much  power 
as  all  the  directors.  A  single  trustee  or  director  has  no  power  to 
act  for  the  institution  that  creates  his  office,  except  in  conjunction 
with  others.  It  is  the  board  of  directors  only  that  can  act.  If  the 
board  of  directors  or  trustees  makes  a  director  or  any  person  its 
officer  or  agent  to  act  for  it,  then  such  officer  or  agent  has  the  same 
power  to  act,  within  the  authority  delegated  to  him,  that  the  board 
itself  has.  His  authority  is  in  such  case  the  authority  of  the  board. 
Notice  to  such  officer  or  agent  or  attorney,  who  is  at  the  time  acting 
for  the  corporation  in  the  matter  in  question,  and  within  the  range 
of  his  authority  or  supervision,  is  notice  to  the  corporation.  Ab- 
bott's Trial  Ev.  45,  and  cases  in  note ;  Fulton  Bank  v.  Canal  Co., 
4  Paige  127;  La  Farge  Fire  Ins.  Co.  v.  Bell,  22  Barb.  54;  National 
Bank  V.  Norton,  i  Hill  (N.  Y.)  578;  Bank  of  U.  S.  v.  Davis,  2  Hill 
(N.  Y.)  454;  North  River  Bank  v.  Aymar,  3  Hill  (N.  Y.)  263; 
Ins.  Co.  V.  Ins  Co.,  10  Md.  517;  Bank  v.  Payne,  25  Conn.  444;  Far- 
rell  Foundry  v.  Dart,  26  Conn.  376 ;  Smith  v.  South  Royalton  Bank, 
32  Vt.  341 ;  Washington  Bank  v.  Lewis,  22  Pick.  24 ;  Commercial 
Bank  v.  Cunningham,  24  Pick.  270 ;  Housatonic  Bank  v.  Martin,  i 
Met.  308 ;  I  Pars.  Com.  ''yy ;  Story  Agen.,  §  140 ;  South.  Law  Rev. 
N.  S.  vol.  6,  p.  45 ;  Hoover  v.  Wise,  91  U.  S.  308.  ^\nother  ques- 
tion arises  in  the  case  before  us.     It  appears  that  Brown's  knowl- 


302  LIABILITY   TO   THIRD   PERSONS. 

edge  of  a  previous  conveyance  was  acquired  anterior  to  his  employ- 
ment by  the  bank,  if  employed  by  the  bank  at  all,  and  not  during 
or  in  the  course  of  his  employment  on  their  account.  The  question  is, 
whether  a  principal  is  bound  by  knowledge  or  notice  which  his 
agent  had  previous  to  his  employment  in  the  service  of  the  principal. 

Upon  this  question  the  authorities  disagree.  The  negative  of  the 
question  has  been  uniformly  maintained  in  Pennsylvania  and  some 
other  of  the  states.  In  the  late  case  of  Houseman  v.  The  Building 
Association,  8i  Penn.  St.  256,  it  was  said,  that  "notice  to  an  agent 
twenty-four  hours  before  the  relation  commenced  is  no  more  notice 
than  twenty-four  hours  after  it  has  ceased  would  be."  But  we  think, 
all  things  considered,  the  safer  and  better  rule  to  be  that  the  knowl- 
edge of  an  agent,  obtained  prior  to  his  employment  as  agent,  will 
be  an  implied  or  imputed  notice  to  the  principal,  under  certain  limi- 
tations and  conditions,  which  are  these :  The  knowledge  must  be 
present  to  the  mind  of  the  agent  when  acting  for  the  principal,  so 
fully  in  his  mind  that  it  could  not  have  been  at  the  time  forgotten 
by  him ;  the  knowledge  or  notice  must  be  of  a  matter  so  material 
to  the  transaction  as  to  make  it  the  agent's  duty  to  communicate  the 
fact  to  his  principal ;  and  the  agent  must  himself  have  no  personal 
interest  in  the  matter  which  would  lead  him  to  conceal  his  knowl- 
edge from  his  principal,  but  must  be  at  liberty  to  communicate  it. 
Additional  modification  might  be  required  in  some  cases. 

These  elements  appearing,  it  seems  just  to  say  that  a  previous 
notice  to  an  agent  is  present  notice  to  the  principal.  The  presump- 
tion, that  an  agent  will  do  what  it  is  his  right  and  duty  to  do,  having 
no  personal  motive  or  interest  to  do  the  contrary,  is  so  strong  that 
the  law  does  not  allow  it  to  be  denied.  There  may  be  instances 
where  the  rule  operates  harshly ;  but,  under  the  rule  reversed,  many 
frauds  could  be  easily  perpetrated.  Of  course,  the  knowledge  must 
be  that  of  a  person  who  is  executing  some  agency,  and  not  acting 
merely  in  some  ministerial  capacity,  as  servant  or  clerk.  For 
instance,  if  in  the  present  case  Brown  had  merely  taken  the  ac- 
knowledgment of  the  deed  to  the  bank,  or  had  transcribed  the  deed 
as  a  clerk  or  copyist,  such  acts  would  not  have  imposed  a  duty  to 
impart  his  knowledge  to  the  bank.  But  if  employed  to  obtain  the 
title  for  the  bank  by  a  deed  to  be  drawn  by  hitii  for  the  purpose,  that 
would  place  the  transaction  within  the  rule.  Jones  IMort.  (2nd  ed.), 
§  587.  Notice  of  the  existence  of  an  unrecorded  mortgage  upon 
the  property  to  an  officer  employed  to  make  an  attachment,  is  notice 
to  the  plaintiff.  Tucker  v.  Tilton,  55  N.  H.  223.  In  the  case  before 
us.  Brown,  it  is  claimed  by  the  defendant,  was  employed  by  the  bank 
to  make  an  instrument  to  convey  a  title  from  a  person  to  the  bank. 
Brown  knew  that  such  person  had  not  the  title.  It  would  be  his 
duty  to  so  inform  his  client.  He  would  be  likely  to  do  so.  He  had 
no  motive  not  to  do  it.  The  law  conclusively  presumes  that  he  did 
inform  him.    We  think  such  a  case  comes  reasonably  within  the  rule, 


thouerh  it  is 

\j  1  '  e  the  Heed 


igh  the  earlier 

,.,    of  the  United  S......  -    . 

sustained  bv  ,-•,  preponderance  of  op: 
thr  •  has  been  discussed,     p- 

vorwood,  17  C.  B.  (N.  S. 
6  687;  The  Distilled  Spinls,    ii    ' 

Bi ;  :;:;  N.  H.  148 ;  H?-f  V.  The  Bank.  _ 

\\  ,  391 ;  \  Bank  v.  Cu 

4;,  .  ..   .    -iverse,  1,  >.  11;  Hoppc-...   . 

\\  .iwrence  v.  Tuck.  le  195  ;  Jones  Mort.  ■ 

i:  following  sectioi-^  .v<^:   notes.     Many  other 

'i'  r.he  questions,  will  be  found  cited  and  revie 

'■\  the  Amer.  Law.  Reg.  (Phila.)  New  Sene 

I  of  this  rule  to  the  facts  of  this  case,  requires  the 
-.  aside.     S.  S.  Brown,  while  a  trustee  of  the  Fair- 
;  Bank,  had  actual  knowledge  that  John  W.  Chase  had 
in  land  to  Isaac  T'^  •  -     t.-.       •..,-  that  fact,  he  as  an  at- 
•z  and  took  the  .  ;f  a  morteae^e  of  the 

!  John  W.   (  ,k-,  and    ' 

\st.    The  q'T"'  "  the  brj' 

-r  deed 
.:  the  kr     . 

:  the  le. 
..-.c  thf-  -'  ■  ■  ..  ...  ,.,. 

was,  at  <ing  the 

;  the  bt 

it  i-^  en 


^taniea. 


University  < 

'.Vis.  .^Sl :  Srr- 


r.yi. 


the  banl 
:  lie  course  o; 
:be.r  a  pnnri 
agent  had  pr> 
Upon  this 
question  has 
othet-  .1"  il' 
As?. 
tvver 
thar 


to  make  an  i; 


uLive  lu- 
n  him. 


not  during 

.  ;.    ine  question  is, 

or  notice  which  his 

I  vice  of  the  princi; 

The  negative  of 

I'ennsylvania  and  sf 

J ouseman  v.  The  Building, 

.lid,  that  "notice  to  an  agent 

oninienced  is  no  more  notic'.' 

'cd  would  be."    But  we  think. 

ter  rule  to  be  that  the  knowl- 

js  employment  as  agent,  will 

Uie  principal,  under  certain  limi- 

ihese :     The  knowledge  must  be 

vhen  acting  for  the  principal,  so 

have  been  at  the  time  forgotten 

must  be  of  a  matter  so  material 

e  agent's  duty  to  communicate  the 

!•*  must  hitnself  have  no  personal 

'■'■  conceal  his  knowl- 

to  communicate  it 

be  required  in  some  cases.   . 

■X  seems  just  to  say  that  a  previc;,. 

otice  to  the  principal.    The  presump- 

t  it  is  his  right  and  duty  to  do,  having 

to  do  the  contrary,  is  so  strong  that 

•>e  denied.     There  may  be  instances 

■  ;  but,  under  the  rule  reversed,  many 

:      Of  course,  the  knowledge  must 

:ving  some  agency,  and  not  acting 

..city,   as   servant   or   clerk.     For 

' -^-r'n  had  merely  taken  the  ac- 

or  had  transcribed  the  deed 

u;d  not  have  imposed  a  duty  to 

But  if  employed  to  obtain  the 

awn  by  him  for  the  purpose,  that 

I  he  rule.  Jones  Mort.  (2nd  ed.). 

;   .an  unrecorded  mortgage  upon 

-^  make  an  attachment,  is  noti'^- 

.  H.  223.    In  the  case  bef 

nt,  was  employed  by  the  b^inv 

:•  from  a  person  to  the  bank. 

!;  the  title.     It  would  be  ' 

!  be  likely  to  do  so.    He  i  .,  i 

t.sively  presumes  that  he  did 

.^  '.-ea^oniiMv  within  the  rule. 


KNOWLEDGE   OF   AGENT.  303 

though  it  is  not  so  marked  a  case  as  it  would  be  if  Brown  had  been 
employed  by  the  bank  to  ascertain  if  the  grantor  had  the  title,  and 
if  he  had  them  to  make  the  deed. 

The  general  rule  or  principle  touching  this  case,  guarded  by  the 
cautions  and  conditions  stated,  is  supported  by  the  later  English 
cases,  although  the  earlier  English  cases  went  the  other  way;  is 
also  the  law  of  the  United  States  supreme  court;  and  is,  we  think, 
sustained  by  a  preponderance  of  opinion  in  the  state  courts  where 
the  question  has  been  discussed.  Fuller  v.  Bennett,  2  Hare  394; 
Dresser  v.  Norwood,  17  C.  B.  (N.  S.)  466;  Rolland  v.  Hart,  L.  R. 
6  Ch.  App.  687;  The  Distilled  Spirits,  11  Wall.  356;  Hovey  v. 
Blanchard,  13  N.  H.  148;  Hart  v.  The  Bank,  33  Vt.  252;  Suit  v. 
Woodhall,  113  Mass.  391;  National  Bank  v.  Cushman,  121  Mass. 
490;  Anketel  v.  Converse,  17  Ohio  St.  11 ;  Hoppock  v.  Johnson,  14 
Wis.  303 ;  Lawrence  v.  Tucker,  7  Maine  195  ;  Jones  Mort.  (2nd  ed.), 
§  584,  and  following  sections  and  notes.  Many  other  cases,  on 
both  sides  the  questions,  will  be  found  cited  and  reviewed  in  a 
learned  article  in  the  Amer.  Law.  Reg.  (Phila.)  New  Series,  vol. 
16,  p.  I. 

An  application  of  this  rule  to  the  facts  of  this  case,  requires  the 
verdict  to  be  set  aside.  S.  S.  Brown,  while  a  trustee  of  the  Fair- 
field Savings  Bank,  had  actual  knowledge  that  John  W.  Chase  had 
deeded  certain  land  to  Isaac  Chase.  Knowing  that  fact,  he  as  an  at- 
torney wrote  and  took  the  acknowledgment  of  a  mortgage  of  the 
same  land  from  John  W.  Chase  to  the  bank,  and  the  mortgage 
was  recorded  first.  The  question  was  whether  the  bank  had  knowl- 
edge of  the  prior  deed  when  the  mortgage  was  taken.  The  pro 
forma  ruling  that  the  knowledge  of  Brown  was  sufficient  notice  to 
the  bank  to  overcome  the  legal  effect  of  the  fact  that  the  mortgage 
was  recorded  before  the  deed,  irrespective  of  the  further  question 
whether  Brown  was,  at  the  time  of  making  the  mortgage,  acting 
as  an  attorney  in  the  business  and  employment  of  the  bank  or  not, 
was  erroneous.  It  is  contended  that  the  evidence  shows  that  Brown 
was  acting  for  the  bank.  But  the  fact  being  at  least  questionable, 
it  should  have  been  passed  upon  by  the  jury. 

Exceptions  sustained.^ 

'^Accord:  Constant  v.  Universitj'  of  Rochester,  in  N.  Y.  604;  Brothers  v. 
Bank  of  Kaukauna,  84  Wis.  381 ;  Snyder  v.  Partridge,  138  111.  173,  184. 


304  LIABILITY   TO   THIRD   PERSONS. 

JENKINS  BROS.  SHOE  CO.  v.  RENFROW  &  CO. 
1909.     Supreme  Court  of  North  Carolina.     151  N.  C.  323. 

Appeal  from  Webb,  J.,  May  term,  1909,  of  Forsyth. 

The  plaintiff  corporation  sued  the  defendants,  as  partners,  to 
recover  an  amount  due  it  for  goods  sold  and  delivered.  The  de- 
fendant T.  J.  Renfrow  alone  answered  and  contested  the  plaintiff's 
right  to  recover  against  him.  The  plaintiff,  in  its  complaint,  al- 
leged "that  on  2'j,  May,  1907,  it  sold  and  delivered  to  the  defend- 
ants a  lot  of  shoes,  of  the  value,"  etc.  The  contesting  defendant 
denied  his  liability,  on  the  ground  that  the  partnership  between  him 
and  his  co-defendant  had  been  dissolved  on  March  28,  1907,  and 
notice  of  dissolution  had  been  published  in  a  newspaper  published 
in  Wilkesboro,  N.  C,  where  the  partnership  did  business,  the  plain- 
tiff doing  business  in  Winston-Salem,  and  that  notice  of  such  dis 
solution  had  been  given  to  W.  N.  Horn,  the  traveHng  salesman  of 
plaintiff,  its  agent  who  had  taken  the  order  sued  upon  and  all  other 
orders  from  defendant  for  plaintiff.  It  was  admitted  by  the  de- 
fendant that  the  partnership  existed  up  to  March  28,  1907,  and  was 
formed  in  1904;  that  his  co-partner,  G.  V.  Renfrow,  his  son,  had 
the  entire  management  of  the  business  and  did  all  its  buying  and 
selling ;  that  he  lived  in  Mecklenburg  county ;  that  when  the  partner- 
ship was  dissolved  he  took  from  his  co-partner  his  note,  secured  by 
a  mortgage  on  certain  described  lands  in  Mecklenburg  county.  The 
plaintiff  offered  evidence  of  the  continued  advertisement  in  the  paper 
stated  by  G.  V.  Renfrow  &  Co.  for  some  months  after  the  alleged 
dissolution,  and  denied  it  had  any  notice  of  the  dissolution  at  the 
date  mentioned  in  the  complaint.  It  further  appeared  in  evidence 
that  the  salesman  of  the  plaintiff,  Horn,  took  the  order  from  G.  V. 
Renfrow  on  April  4,  1907,  but  it  was  subject  to  acceptance  by  the 
plaintiff.  The  plaintiff's  salesman  admitted  he  received  notice  of 
the  dissolution  before  May  15  ;  that  it  was  within  his  duty  to  notify 
plaintiff  when  he  received  notice  of  dissolution  of  partnerships  who 
were  dealing  with  it,  and  he  sometimes  received  money  from  cus- 
tomers when  they  offered  it.  It  was  in  evidence  that  the  agent, 
Horn,  was  notified  on  April  4  of  the  dissolution,  but  this  was  de- 
nied by  him.  His  Honor  charged  the  jury  that  unless  the  notice  of 
dissolution  was  given  to  the  agent,  Horn,  on  or  before  April  4,  no 
subsequent  notice  would  avail  the  defendant.  The  defendant  ex- 
cepted. The  jury  answered  the  issue  of  indebtedness  in  favor  of  the 
plaintiff.  From  the  judgment  rendered  upon  the  verdict  the  de- 
fendant T.  J.  Renfrow  appealed  to  this  court. 

Manning,  J. — After  stating  the  case  :  If  Horn  was  such  an  agent 
of  the  plaintiff  that  notice  to  him  would  be  imputed  to  the  plaintiff, 
then  we  think  His  Honor  was  in  error  in  restricting  the  time  at 
which  the  notice  of  the  dissolution  should  have  been  given,  in  order 


-.OVVLEDGE  OF  AGEN  f .  305 

ifiding  \i\ron  his  principal,  the  ph  :  "on  or 

\pril  4."    While  the  order  '''"-  *'''^  •  t-il'->i) 

on  April  4,  it  was  made 
-    -  '       The  acceptance  ti  i-u-  !>;.ut  v\  , 
.:^oods  on  Ala\  -^7,  and  in  no  otht 
;e  and  deliv* 
we  must  cor 
, (leading".  T!v  ubLuicti, 

he  defendaii;  ....    .jo  asked  .   .  . 

led  he  had  1  .he  withdrawal  of  the 

<^ivAV  from  the  w.-.ii^.ciship  before  May  15,  ai!v< 
Lhe  agent  of  the  plaintiff,  with  the  same  scope  and  . 
as  theretofore. 

Agency,  §  y2i,4lit\e  learned  author  deduces  the  f ol- 
die authorities  :    "The  law  imputes  to  the  • 
with  all  notice  or  knowledge  relating  to  the 
.ncy  which  the  agent  acquires  or  obtains  while 
:  and  within  the  scope  of  his  authority  or  whicit  w 
lave  acquired,  and  which  he  then  had  in  mind,  or 
luired  so  recently  as  to  reasonably  warrant  the  as- 
still  retained  it.     Provided,  however,  that  such 
Ige  will  not  be  imputed  ( i )  where  it  is  such  as  it 
y  not  to  disclose,  and  (2)  where  the  agent's  rela- 
t-matter  or  his  previous  conduct  render  it  certain 
lisclose  it,  and  (3)  where  the  person  clair"-'»'"  ^'^^■ 
ce,  or  those  whom  he  represents,  Colluded 
defraud  tlit  '  al."    There  is  no  ev 

.  it  within  ar  exceptions  named  in 

e  rule.     This  v,ourt,   in   Straus 
-  with  approval  this  principle,  as 
.  637;  .3  L.  R.  A.,  p.  563:   "I.     ' 
-  :ie  to  his  principal  informatinr, 
iin  the  scr>pe  of  his  agenc} 
lOtice  to  the  principal  it  1  i  h:? 

ough  his  duty  had  been  :",  •:d.' 

id,  64  S.  E.  .^^.. 

1  was  such  an  agent  that  n  >  u 

the  plaintiff,  then,  under  the 
'r  plaintiff  had  notice  of  t: 
ow  from  the  firm,  and  \' 
ly  6  and  15,  as  fixed  I  • 
»r  the  goods  ordere  1 
Chan.   16,  it  is  heUl 
')f  thp  dissolution  oi 


IVKINK.VS- 


3^4 


JENKINS  BROS.  SH( 

•909.     Supreme  C 

Appeal  from  W 
The  plaintiff  co 
recover  an  amour; 
fendant  T.  J,  Rei 
to  recov 
"that  01 
antij  a  lor 
denieci  hi 
and  1 


Ren:, 
plainiuT. 


>y  him. 


:  lie  jur; 
From 
tcrniaiu  T.  J.  Rer 
Manning,  J.— 
of  the  plaintiff  tli 
then  we  think  I' 
which  the  notice  . 


'  orsyth. 

.Is.   as  partners,  to 
....  delivered.     The  de- 
contested  the  plaintiff's 
ff,  in  its  complaint,  al- 
delivered  to  the  defend- 
rhe  contesting  defendant 
Mie  partnership  between  him 
cd  on  March  28,  1907,  and 
^  ..cd  in  a  newspaper  published 
-tnership  did  business,  the  plain- 
leni,  and  that  notice  of  such  dis 
Horn,  the  travehng  salesman  of 
he  order  sued  upon  and  all  other 
:i>".     It  was  admitted  by  the  de- 
il  up  to  ]\Iarch  28,  1907,  and  was 
■?r,  G.  V.  Renfrow,  his  son,  had 
•iness  and  did  all  its  buying  and 
ifv  county ;  that  when  the  partner- 
-s  co-partner  his  note,  secured  by 
■  ;ds  in  Mecklenburg  county.    The 
rinued  advertisement  in  the  paper 
r  some  months  after  the  alleged 
notice  of  the  dissolution  at  the 
It  further  appeared  in  evidence 
rlorn,  took  the  order  from  G.  \". 
vas  subject  to  acceptance  by  the 
)  admitted  he  received  notice  of 
'  it  was  within  his  duty  to  notify 
■  solution  of  partnerships  wlio 
s  received  money  from  cus- 
vas  in  evidence  that  the  agent, 
■be  dissolution,  but  this  was  de- 
he  jury  that  unless  the  notice  of 
Horn,  on  or  before  April  4,  •^'^■ 
defendant.     The  defendant  t  • 
'  '    '  '  i  •  hiess  in  favor  of  the 
the  verdict  the  de- 
court. 

If  Horn  was  such  an  agent 

1  be  imputed  to  the  plaintiff, 

r  in  restricting  the  time  at 

lid  have  been  given,  in  order 


KNOWLEDGE   OF   AGENT.  305 

to  be  binding  upon  his  principal,  the  plaintiff,  to  the  date  "on  or 
before  April  4."  While  the  order  for  the  goods  sued  for  was  taken 
by  Horn  on  April  4,  it  was  made  by  Horn  subject  to  the  acceptance 
of  the  plaintiff.  The  acceptance  of  the  order  was  signified  by  the 
shipment  of  the  goods  on  l\Iay  2'j,  and  in  no  other  way.  The  com- 
plaint alleged  both  sale  and  delivery  on  that  day,  and  in  our  consid- 
eration of  this  appeal  we  must  consider  the  plaintiff  concluded  by  this 
allegation  of  his  pleading.  This  allegation  was  distinctly  presented  to 
His  Honor  by  the  defendant,  and  instructions  asked  and  refused. 
The  agent  admitted  he  had  notice  of  the  withdrawal  of  the  defend- 
ant T.  J.  Renfrow  from  the  partnership  before  May  15,  and  that 
he  was  then  the  agent  of  the  plaintiff,  with  the  same  scope  and  ex- 
tent of  authority  as  theretofore. 

In  Mechem  on  Agency,  §  721,  the  learned  author  deduces  the  fol- 
lowing rule  from  the  authorities :  "The  law  imputes  to  the  principal 
and  charges  him  with  all  notice  or  knowledge  relating  to  the  sub j  ect- 
matter  of  the  agency  which  the  agent  acquires  or  obtains  while  act- 
ing as  such  agent  and  within  the  scope  of  his  authority  or  which  he 
may  previously  have  acquired,  and  which  he  then  had  in  mind,  or 
which  he  had  acquired  so  recently  as  to  reasonably  warrant  the  as- 
sumption that  he  still  retained  it.  Provided,  however,  that  such 
notice  or  knowledge  will  not  be  imputed  (i)  where  it  is  such  as  it 
is  the  agent's  duty  not  to  disclose,  and  (2)  where  the  agent's  rela- 
tion to  the  subject-matter  or  his  previous  conduct  render  it  certain 
that  he  will  not  disclose  it,  and  (3)  where  the  person  claiming  the 
benefit  of  the  notice,  or  those  whom  he  represents,  colluded  with  the 
agent  to  cheat  or  defraud  the  principal."  There  is  no  evidence  in 
this  case  bringing  it  within  any  of  the  exceptions  named  in  the  pro- 
viso of  the  above  rule.  This  court,  in  Straus  v.  Sparrow,  148 
N.  C.  309,  quotes  with  approval  this  principle,  as  stated  in  Cox  v. 
Pearce,  112  N.  Y.  637;  3  L.  R.  A.,  p.  563:  "i.  The  failure  of  an 
agent  to  communicate  to  his  principal  information  acquired  by  him 
in  the  course  and  within  the  scope  of  his  agency  is  a  breach  of  duty  to 
his  principal ;  but  as  notice  to  the  principal  it  has  the  same  effect  as 
to  third  persons  as  though  his  duty  had  been  faithfully  performed." 
Mfg.  Co.  V.  Rutherford,  64  S.  E.  444. 

If,  therefore,  Horn  was  such  an  agent  that  notice  to  him  was 
notice  to  his  principal,  the  plaintiff,  then,  under  the  above  authorities, 
it  must  follow  that  the  plaintiff  had  notice  of  the  withdrawal  of 
the  defendant  T.  J.  Renfrow  from  the  firm,  and  its  dissolution  be- 
fore May  15 — between  May  6  and  15,  as  fixed  by  Horn.  No  credit 
had  then  been  extended  for  the  goods  ordered  on  April  4.  In  Bis- 
ban  V.  Boyd,  4  Paige's  Chan.  16,  it  is  held:  "If  he  (a  former 
customer)  was  informed  of  the  dissolution  of  the  partnership  im- 
mediately after  the  sale  and  while  the  goods  remained  in  his  own 
hands,  undelivered,  a  court  of  equity  would  never  permit  him  to  re- 
20 — Reinhard  Cases. 


3o6  LIABILITY   TO   THIRD   PERSONS. 

cover  for  those  goods  against  the  former  partners  of  the  vendee." 
Notice  of  the  dissolution  is  a  rescission  of  the  order.  Goodspeed  v. 
Plow  Co.,  45  Mich.  522.  The  correctness  of  these  doctrines  cannot 
be  controverted.  It  cannot  be  consistent  with  any  just  conception  of 
fair  dealing  to  subject  a  retired  partner  to  the  payment  of  debts  con- 
tracted after  notice  of  dissolution  of  the  partnership  has  been  given 
to  the  creditor  extending  the  credit.  Such  a  creditor  cannot  as- 
sume the  status  of  partnership  to  be  unchanged  when  he  has  actual 
notice  of  a  change  imputed  to  him  from  the  knowledge  of  his  agent. 
Was  Horn  such  an  agent  that  notice  to  him  was  notice  to  his  princi- 
pal? The  evidence  offered  at  the  trial  tends  to  show  that  Horn 
was  a  traveling  salesman  of  the  plaintiff,  and  defendants  made  all 
their  purchases,  extending  over  several  months,  from  plaintiff 
through  Horn;  that  he  was  the  sole  representative  of  plaintiff  in 
the  section  in  which  defendants  did  business,  and  visited  their  place 
of  business  nearly  every  thirty  days ;  that  he  reported  to  plaintiff 
references  given  by  new  customers ;  that  he  reported  dissolutions 
of  partnerships  with  whom  plaintiff  was  dealing,  and  sometimes 
received  payments  for  bills  due,  when  offered  him  by  merchants,  but 
that  he  was  not  instructed  to  collect  bills ;  that  he  in  a  general  way 
inquired  about  the  condition  of  the  business  of  those  with  whom 
he  was  dealing  for  plaintiff. 

In  Cowan  v.  Roberts,  133  N.  C.  629,  this  court  held:  "The 
notice  should  have  been  given  to  the  plaintiffs  or  to  some  one  of  their 
employees  who  had  charge  of  the  credit  department.  The  'man,' 
the  defendant,  Redmond,  found  'working  on  the  books'  ma}^  have 
had  no  duties  connected  with  any  department  of  the  business,  ex- 
cept to  keep  an  account  of  the  cash,  so  far  as  we  know.  Of  course,  if 
any  salesman  had  been  notified  of  the  dissolution  of  the  firm,  and 
that  salesman  had  afterward  sold  goods  to  Roberts,  Redmond  would 
not  have  been  liable."  In  reviewing  this  decision  in  Straus  v.  Spar- 
row, 148  N.  C.  309,  Hoke,  J.,  speaking  for  this  court,  said :  "The 
decision,  while  eminently  sound  in  principle,  goes  very  far,  cer- 
tainly on  the  facts  of  that  particular  case,  in  upholding  a  demand 
against  a  retired  partner."  A  careful  consideration  of  Cowan  v. 
Roberts,  supra,  does  not  convince  us  that  that  decision  militates 
against  our  holding  that  the  evidence  was  sufficient  to  support  a  find- 
ing that  Horn  was  a  competent  agent  to  receive  notice,  and  that 
notice  to  him  was  notice  to  the  plaintiff,  his  principal.  Horn  was, 
by  his  course  of  dealing  and  the  scope  and  extent  of  his  power, 
the  medium  of  negotiations  between  plaintiff  and  defendant  part- 
nership. The  learned  judge  who  tried  this  case  seemed  to  be  of 
this  opinion,  but  erroneously,  as  we  think,  in  view  of  the  distinct 
allegation  of  the  complaint,  restricted  the  binding  effect  upon  the 
plaintiff  of  the  notice  to  him  to  the  date  of  the  order.  The  case 
has  been  made  complicated  and  the  decision  more  difficult  by  the 
variance  between  the  proof  and  the  allegation  in  apparently  treating 


KNOWLEDGE  OF  AGENT.  307 

April  4  as  tlie  day  of  the  accepted  order  and  the  Hie  propo- 
sition to  buy  became  a  contract  of  purchase  anu  'jave  not 
'    'rion  the  other  exceptions  taken,  as  tl,  '  r^  pre- 
the  next  trial.    For  the  error  pointed  be  a 
rial. 


CHRISTOPHER. 

!  ^TTl^RrMF    Coi    RT   O i?   'MrW    TFtv:-F.','.        .JO 

,  J.— iiic  piamuii^  sueu  ine  ueienuani  on  a  -■■• 

'he  sum  of  $349,68,  dated  January  3d,  1877, 

.iths  after  date,  to  the  order  of  J.  M.  Scovel,  and 

!.  and  by  M.  &  J.  S.  Perrine.    The  note  was  discor 

on  the  9th  of  January,  1877,  ^^^l  before  maturity ;  and  n^e 

of  the  di*^'"'""""*'   '■■''■'''■'!    •■'■■   "^Tf'  rr/^. 1'i    <  ii'   fTi.'^i  fji-m    i-it   "V  T     >;     T 

'lintiffs  ha'."njg  rcstea,  wx  aeTCiiaanr  proposca  vc  prove  inau 

was  fraudulently  obtained,  and  was  without  consideration. 

regarding  the  bank  as  a  bona  fide  holder  for  full  value  be- 

'.rity,  overruled  the  defense,  and  directed  a  verdict  for  the 

estion  discussed  here  w^as  the  correctness  of  this  rv''''y  - 
idence  offered  was  to  show  that  the  note  was  pr< 
■  ''■      .ttomey  of  thr  ^  '  M.  &  J.  S.  Perr':  - 

.  nt  they  helo  r>ne  Wilkin, 

orrine  was  one  or  ^n^  ixiembers  of  the  ■-,.  } 

id  also  one  of  the  nine  directors  of  tl'.  .       J:*au 

4th  of  January  that  the  note  was  obtainea  by  traud,  as 
nted  by  the  bank  on  the  9th.    No  other  knowledge  of 
if  the  consideration  of  the  note  was  possessed  by  any 

'   :r  of  the  bank.     Perrine  did  r  ""■     t!ie 

;  president,  cashier  or  any  o  'he 

'ant  contends  th' 
dt  therefore  the 
older  -mala  fide. 

ie  is  that  notice  to  an  ag  !i- 

al  rule  is  not  denied.    T: 
'   •'    ^        "orporation  au    i ..  1- 

on  are  not  '•  " 

business,  v 
icii  as  the  presid'  ircctors 


3o6 


cover  for  those  sroO' 
'"•    lice  of  the  dis 
I'iovv  Co.,  45  Mi. 
be  controverted, 
fair  deahng  t: 
tracted  after 
to  the  c; 
*~ume  thr 


pai; 


r  vendee." 

loodspeed  v. 

-""=■5  cannot 

ption  of 

»  ciebts  con- 

-  been  g;iven 

.   .. .   .ii. or  cannot  as- 

:  •  \Ann  he  has  actual 

•wledg^e  of  his  agent. 

.^:  notice  to  his  princi- 

iends  to  show  that  Honi 

,  and  defendants  made  all 

1    montlis,    from    plaintiff 

lative  of  plaintiff  ir 

-d  visited  their  place 

^rted  to  plaintiff 

•rtcd  dissolutions 

,   and   sometimes 

'  y  merchants,  but 

■n  a  general  way 

lose  with  whom 


tne  me' I 


var; 


.  court  held:    "The 
to  some  one  of  their 
nt.     The  'man,' 
;o6ks'  may  have 
he  business,  ex- 
Kiiow.  Of  course,  if 
'     .hon  of  the  firm,  and 
Redmond  would 
:  Straus  V.  Spar- 
•/  this  court,  said :    "The 
:!'•.   L'oes  very  far,  cer- 
>  Iding  a  demand 
)n  of  Cowan  v. 
ccision  nulitates 
;.  sun  cuiuf  to  support  a  find- 
to  receive  notice,  and  that 
jal,    Horn  was, 
li   of  his  power, 
endant  part- 
.  .o  L..  ""'^  to  be  of 

distinct 
:|>on  the 
'he  case 
aiiiicult  by  the 
r>arently  treating 


m  vie 


KNOWLEDGE   OF  AGENT.  307 

April  4  as  the  day  of  the  accepted  order  and  the  day  when  the  propo- 
sition to  buy  became  a  contract  of  purchase  and  sale.  We  have  not 
passed  upon  the  other  exceptions  taken,  as  they  may  not  be  pre- 
sented at  the  next  trial.  For  the  error  pointed  out,  there  must  be  a 
New  trial. 


FIRST  NATIONAL  BANK  OF  HIGHTSTOWN  v. 
CHRISTOPHER. 

1878.     Supreme  Court  of  New  Jersey.     40  N.  J.  L.  435. 

Depue,  J. — The  plaintiffs  sued  the  defendant  on  a  note  made  by 
him  for  the  sum  of  $349,68,  dated  January  3d,  1877,  and  payable 
three  months  after  date,  to  the  order  of  J.  M.  Scovel,  and  endorsed 
by  Scovel,  and  by  M.  &  J.  S.  Perrine.  The  note  was  discounted  by 
the  bank  on  the  9th  of  January,  1877,  and  before  maturity;  and  the 
proceeds  of  the  discount  placed  to  the  credit  of  the  firm  of  M.  &  J. 
S.  Perrine. 

The  plaintiffs  having  rested,  the  defendant  proposed  to  prove  that 
the  note  was  fraudulently  obtained,  and  was  without  consideration. 
The  court  regarding-  the  bank  as  a  bona  fide  holder  for  full  value  be- 
fore maturity,  overruled  the  defense,  and  directed  a  verdict  for  the 
plaintiffs. 

The  question  discussed  here  was  the  correctness  of  this  ruling. 

The  evidence  offered  was  to  show  that  the  note  was  procured  by 
the  fraud  of  the  attorney  of  the  firm  of  M.  &  J.  S.  Perrine,  in  settle- 
ment of  a  judgment  they  held  against  one  Wilkin. 

Matthew  Perrine  was  one  of  the  members  of  the  firm  of  M.  &  J. 
S.  Perrine,  and  also  one  of  the  nine  directors  of  the  bank.  He  had 
notice  on  the  4th  of  January  that  the  note  was  obtained  by  fraud,  as 
is  was  discounted  by  the  bank  on  the  9th.  No  other  knowledge  of 
the  infirmity  of  the  consideration  of  the  note  was  possessed  by  any 
director  or  officer  of  the  bank.  Perrine  did  not  communicate  the 
information  to  the  president,  cashier  or  any  of  his  associates  in  the 
directorship.  The  defendant  contends  that  notice  to  Perrine  was 
notice  to  the  bank,  and  that  therefore  the  bank  took  the  paper  with 
notice,  or  was  a  holder  mala  Ude. 

The  general  rule  is  that  notice  to  an  agent  is  notice  to  his  prin- 
cipal. This  general  rule  is  not  denied.  The  inquiry  is  under  what 
circumstances  directors  of  a  corporation  are  its  agents  for  the  pur- 
pose of  receiving  notice. 

The  directors  of  a  corporation  are  not  individually  its  agents  for 
the  transaction  of  its  ordinary  business,  which  is  usually  delegated 
to  its  executive  officers,  such  as  the  president  or  cashier.    Directors 


3o8  LIABILITY  TO   THIRD   PERSONS. 

are  possessed  of  extensive  powers,  even  to  the  extent  of  absolute 
control  over  the  management  of  its  affairs,  but  these  powers  reside 
in  them  as  a  board ;  and,  when  acting  as  a  board,  they  are  collectively 
the  representatives  of  the  corporation.  Notice  to  directors  when 
assembled  as  a  board  would  undoubtedly  be  notice  to  the  corpora- 
tion. Under  what  conditions  knowledge  acquired  by  a  director  in 
other  than  his  official  capacity  will  be  constructive  notice  to  the  cor- 
poration, and  be  binding  on  it,  is  not  entirely  settled  in  the  cases. 
A  distinction  has  been  taken  between  knowledge  of  illegality  or  want 
of  consideration  of  a  note,  by  a  director  who  acts  with  the  board  in 
discounting  it,  and  such  knowledge  on  the  part  of  a  director  who 
is  not  present  and  acting  with  the  board  when  the  discount  is  made. 
In  the  former  case  it  had  been  held  that  the  bank  is  bound  by  his 
knowledge;  in  the  latter  it  is  not.  Bank  of  the  U.  S.  v.  Davis,  2 
Hill  451;  North  River  Bank  v.  Ay  mar,  "3  Hill  262;  National  Se- 
curity Bank  v.  Cushman,  121  Mass.  490;  Farmers,  etc.,  Bank  v. 
Payne,  25  Conn.  444;  Farrell  Foundry  v.  Dart,  26  Conn.  376;  Na- 
tional Bank  v.  Norton,  i  Hill  572 ;  Washington  Bank  v.  Lewis,  22 
Pick.  24;  The  President,  etc.,  v.  Cornen,  37  N.  Y.  320;  2  Leading 
Cas.  in  Eq.  171,  note  to  Le  Neve  v.  Le  Neve.  This  distinction  has 
been  criticized  and  condemned  by  Justice  Story  as  sapping  "the 
foundations  on  which  the  security  of  all  banking  and  other  moneyed 
corporations  has  been  supposed  to  rest,  to  wit,  that  no  act  or  repre- 
sentation or  knowledge  of  any  agent  thereof,  unless  officially  done, 
made  or  acquired,  is  to  be  deemed  the  act,  representation  or  knowl- 
edge of  the  corporation  itself."  Story  on  Agency,  §  140,  b.  It  will 
not  be  necessary  to  consider  the  soundness  of  this  distinction,  for  it 
is  admitted  that  Perrine's  knowledge  of  the  infirmity  in  the  consid- 
eration of  this  note  was  acquired  when  he  was  acting  in  his  private 
capacity;  and  the  opening  of  counsel  did  not  propose  to  show  that 
he  was  present  at  the  bank  when  the  note  was  discounted,  and  par- 
ticipated as  a  director  in  the  act  of  discount. 

Perrine  simply  occupied  a  twofold  relation.  He  was  a  member  of 
the  firm  of  M.  &  J.  S.  Perrine,  and  a  director  in  the  bank.  In  the 
absence  of  evidence  that  he  acted  in  the  capacity  of  a  director  in  the 
discount  of  the  note,  the  counsel  must  take  their  stand  on  the  broad 
ground  that  in  point  of  law  the  bank  was  chargeable,  in  virtue  of  his 
directorship,  with  knowledge  of  the  private  affairs  of  the  firm.  This 
position  is  obviously  untenable.  Powles  v.  Page,  3  C.  B.  16.  As  a 
member  of  the  firm  and  a  director  of  the  bank,  Perrine  was  in  the 
same  position  as  a  common  director  in  two  companies.  Speaking 
on  this  subject,  Mellish,  L.  J.,  says :  "I  cannot  think  that,  because 
he  was  a  common  director  to  the  two  companies,  we  are  on  that  ac- 
count to  say  that  the  one  company  has  necessarily  notice  of  every- 
thing that  is  within  the  knowledge  of  the  common  director,  and 
which  knowledge  he  has  acquired  as  director  of  the  other  company. 
It  appears  to  me  that  a  director  is  simply  a  person  appointed  to  act 


as  one  of  a  board,  With  power  u  biH'd  \  .  ■- 

a  board,  but  having  otherwise  no  power  .  s, 

L.  ].,  'zes  the  proposition  that  whcic  ,.  ik 

is  ask' \;  11  for  himself,  it  should  be  iri;;v.  ug 

com!>any  that  they  have  knowledge  of  rs,  as 

n.o-;  unreasonable.    In  re  A'   ■-..-;  !-    t?  a,t>- 

;..-;;;    i6i.    The  cases  to  the  d 

on  m  rbe  text  and  note 
\'iies,  ;:-.  ;,e  424,  et  seg. 

'!!'.;  counsel  sought  further  to  place  tnis  caac  •  . .;. 

Feiriue  owed  a  duty  to  the  bank,  as  a  director,  ti 
information  he  had  with  respect  to  the  note,  and  tha; 
the  note  to  be  presented  for  discount  without  such  .-.. 
was  Irat'.dulent.    They  cited,  in  support  of  their  content: 
B.  '.  Y,  and  Sharon  Canal  Co.,  4  Paige  127.     In  -  ■ 

(  :  ugh  was  a  director  of  the  canal  company,  and  one  ■ 

'I  imittee,  and  also  president  of  the  bank.    As  president  oi 

■i  e  knew  that  the  funds  in  question  were  deposited  in  the 

i>?ii^  .0  the  credit  of  the  canal  company.  They  were  drawn  from 
f,  •  V  by  Brown,  on  his  checks  as  president  of  the  canal  company, 
s^  "^r  private  purposes.    The  chancellor  held  that  if  Cheese- 

"r  lew  the  purpose  of  Brown  in  making  the  drafts,  it  was 

'^i  communicate  the  facts  to  the  other  officers  of  the  bank 

<-\  1  of  directors,  and  that  if  he  neglected  to  do  so,  the 

b.  for  his,  fraud.     Cheeseborough,  as  president  of  the 

i.i  the  funds  had  been  deposited  in  the  bank  to 

■:  ud  company;  and  if  he  knew  that  it  \va-.  n 

:  1      ..to  appropriate  the  money  to  his  individua' 
i  •    i     •   hira,  as  an  officer  of  the  bank,  not  to  aid  i 

case  decided  nothing  more  than  the  w  re 

ion  is  liable  for  the  fraud  of  "  biu 

and   in  the  due  course  of  b  01 


th  ail  the  authoritie  -^ 

-v,  rr^.-f  ,■■]...-]  as  well  .:•,...,.-■;.  .  .,  .1- 

a  director  is  constrn 
1  N';  ju'iu  vvr    c;  v«  his  ■'.    '         '  '  ered, 

!  information  to  his  .  :  can- 

stricted  within  any  ' 
ses  where  a  director  : 
do  no  official  act  to  which  s 
.  ,   „;    .\gency,  §  1406.    The  case  cj..  . 
The  frau''  of  Perrine,  if  there  was  any 
:     ■  -^       '■  "  by  him  in  the  course  of  '■'.  c 

it  of  the  firm  exclusivelj  -d 

uiLca  lu  tilt  ;  "  ?lect  on  his  part  in  hi 


3o8 


r.iAPri. 


=,sed  of  extensive 
..ti.  M  ■■ver  the  pt"'  '  '■"■•'• 
•  n  them  as  a  boar(  • 
sentativi 
!  as  a  b 
Under 
than  hi.- 
poration,  and 
A  distincti";- 
of  consid 


Perrme  sni 


ibject,  ]\i 


P'.  ■'  the  e\;  ibsolute 

'■"*  ''"  .*«..! s  reside 

collectively 
.'■■rice  to  liirectors  when 
Uv  fw  n/^tice  to  the  oorpora- 
•  ctor  in 
he  cor- 
net entirely  a  the  cases. 
a  knowledge     .  ..-^^ality  or  want 
ector  who  acts  with  the  board  in 
:e  on  the  part  of  a  director  who 
')Oard  when  the  discount  is  made. 


<1  that  ." 
Bank  ^ 
V.  .\ymar,  "^ 
'    Mass.  490: 
Foundry  v.  ^ 
-1" :  Wash!- 
ornen,  ,• 
ve  V.  Le  N<. 
d  by  Justice 
lity  of  all  bai 
■  i  to  rest,  to 
agent  there 
mcd  the  act,  , 


CCiUI" 


'    !<j  bound  by  his 

S.  V.  Davis,  2 

Hili  M2',  National  Se- 

r,n:r  ;rs,  etc.,  Bank  v. 

Conn.  376;  Na- 

ak  V.  Lewis,  22 

320;  2  Leading 

''  i"  ntion  has 

:  ,  iiig  "the 

v.>ther  moneyed 

no  act  or  repre- 

^  officially  done, 

.; — >-./.ation  or  knowl- 

Story  on  Agency,  §  140,  b.    It  will 

■oundness  of  this  distinction,  for  it 

!:::fe  of  the  infirmity  in  the  consid- 

vhen  he  w.^s  acting  in  his  private 

^^el  did  not  propose  to  show  that 

■he  note  wa.s  discounted,  and  par- 

'  discount. 

i  relation.    He  was  £f  member  of 

'  o  .Kf^.-t,      ■^,  *-:^  t;..,i.     In  the 

•  in  the 

e  broad 

:  J  of  his 

...^  ul  liic  ilrm.    This 

,1 ,  3  C.  B.  16.    As  a 

lie  bank,  Perrine  was  in  the 

"•  two  compa-'''---      '^ru-il'lny: 

nnnot  th' 
uiijjanic-     ■ 
necessn 


u  appea- 


ippomted  to  act 


KNOWLEDGE   OF  AGENT.  309 

as  one  of  a  board,  with  power  to  bind  the  company  when  acting  as 
a  board,  but  having  otherwise  no  power  to  bind  them."  And  James, 
L.  J.,  characterizes  the  proposition  that  where  a  director  of  a  bank 
is  asking  a  loan  for  himself,  it  should  be  imputed  to  the  banking 
company  that  they  have  knowledge  of  his  own  private  affairs,  as 
most  unreasonable.  In  re  Marseilles  Railway  Co.,  L.  R.  7  Ch.  Ap- 
peals 161.  The  cases  to  the  same  effect  are  collected  and  commented 
on  in  the  text  and  notes  of  Mr.  Green's  edition  of  Brice's  Ultra 
Vires,  page  424,  et  seq. 

The  counsel  sought  further  to  place  this  case  on  the  ground  that 
Perrine  owed  a  duty  to  the  bank,  as  a  director,  to  communicate  the 
information  he  had  with  respect  to  the  note,  and  that  his  permitting 
the  note  to  be  presented  for  discount  without  such  communication 
was  fraudulent.  They  cited,  in  support  of  their  contention,  Fulton 
Bank  v.  N.  Y.  and  Sharon  Canal  Co.,  4  Paige  127.  In  that  case, 
Cheeseborough  was  a  director  of  the  canal  company,  and  one  of  the 
finance  committee,  and  also  president  of  the  bank.  As  president  of 
the  bank  he  knew  that  the  funds  in  question  were  deposited  in  the 
bank  to  the  credit  of  the  canal  company.  They  were  drawn  from 
the  bank  by  Brown,  on  his  checks  as  president  of  the  canal  company, 
and  used  for  private  purposes.  The  chancellor  held  that  if  Cheese- 
borough  knew  the  purpose  of  Brown  in  making  the  drafts,  it  was 
his  duty  to  communicate  the  facts  to  the  other  officers  of  the  bank 
or  to  the  board  of  directors,  and  that  if  he  neglected  to  do  so,  the 
bank  was  liable  for  his  fraud.  Cheeseborough,  as  president  of  the 
bank,  knew  the  funds  had  been  deposited  in  the  bank  to  the  credit 
of  the  canal  company ;  and  if  he  knew  that  it  was  mediated  by 
Brown  to  appropriate  the  money  to  his  individual  use,  it  was  incum- 
bent on  him,  as  an  officer  of  the  bank,  not  to  aid  in  the  misappropria- 
tion. The  case  decided  nothing  more  than  the  well-settled  doctrine 
that  a  corporation  is  liable  for  the  fraud  of  its  agents  acting  within 
their  authority,  and  in  the  due  course  of  its  business,  and  cannot 
shield  itself  from  responsibility  by  showing  that  the  agent  also  failed 
in  his  duty  to  the  corporation.  If  it  decided  anything  more,  the  case 
is  directly  in  conflict  with  all  the  authorities,  and  contrary  to  legal 
principles  which  have  been  regarded  as  well  settled ;  for  if  informa- 
tion within  the  private  knowledge  of  a  director  is  constructively  no- 
tice to  a  corporation  whenever  it  is  his  duty,  abstractly  considered, 
to  communicate  that  information  to  his  associates,  the  doctrine  can- 
not practically  be  restricted  within  any  bounds  short  of  binding  the 
corporation  in  all  cases  where  a  director  has  such  private  knowledge, 
though  he  may  do  no  official  act  to  which  such  information  relates. 
See  Story  on  Agency,  §  1406.  The  case  cited  will  not  aid  the  de- 
fense. The  fraud  of  Perrine,  if  there  was  any  fraud  in  the  trans- 
action, was  committed  by  him  in  the  course  of  the  business  of  the 
firm,  and  for  the  benefit  of  the  firm  exclusively.  If  any  loss  had 
resulted  to  the  bank  from  neglect  on  his  part  in  his  duties  as  director, 


3IO  LIABILITY   TO   THIRD   PERSONS. 

he  might  have  been  held  Hable  for  the  consequences  as  between  him 
and  the  bank.  Stewart  v.  Lehigh  Vahey  R.  R.,  9  Vroom  505,  523. 
A  corporation  is  hable  for  the  fraud  of  its  agents  in  transacting  its 
business,  but  no  case  that  has  come  under  my  observation  has  af- 
firmed that  it  is  also  liable  for  the  individual  frauds  of  its  agents 
done  by  them  individually,  and  for  their  individual  benefit  exclu- 
sively. 

In  negotiating  the  note  with  the  bank,  Perrine  was  dealing  with 
it  in  his  own  interest,  and  must  be  regarded  as  a  stranger  to  the  com- 
pany. Stratton  v.  Allen,  i  C.  E.  Green  229.  The  question  how  far 
the  knowledge  of  an  officer  of  a  corporation,  which  he  acquired  out- 
side of  the  business  of  the  company,  and  which  was  not,  in  fact, 
communicated  to  the  corporation,  is  binding  upon  it,  when  it  relates 
ta  dealings  between  the  officer  and  the  corporation,  was  considered 
by  the  chancellor  in  Barnes  v.  Trenton  Gas  Light  Co.,  12  C.  E. 
Green  33.  The  bill  was  filed  to  set  aside  a  conveyance  made  by 
executors  in  fraud  of  the  powers  contained  in  the  will.  The  convey- 
ance was  made  to  Mr.  Potts,  who  was  the  legal  adviser  of  the  execu- 
tors, and  also  president  of  the  gas  light  company.  Potts  conveyed 
directly  to  the  company,  and  the  bill  charged  notice  on  the  defend- 
ants solely  on  the  ground  that  at  the  time  of  the  conveyance  to  the 
company  Mr.  Potts  was  its  president.  On  demurrer,  it  was  held 
that  the  information  which  came  to  Mr.  Potts'  knowledge,  as  coun- 
sel of  the  executors,  was  not  constructively  notice  to  the  corporation, 
and  that  the  company  was  a  bona  fide  purchaser  without  notice. 

The  defense  proposed  was  properly  overruled,  and  the  rule  to 
show  cause  should  be  discharged.^ 


THE  MERCHANTS'  NATIONAL  BANK  OF  KANSAS  CITY 

V.  LOVITT. 

1892.     Supreme  Court  of  Missouri.     114  Mo.  519. 

Black,  P.  J. — This  is  an  action  on  a  negotiable  promissory  note 
for  $2,900,  executed  by  the  defendant  Lovitt  and  payable  to  O.  P. 
Dickinson  in  four  months  after  date,  with  interest  from  date  at  the 

^  See  Pennoyer  v.  Willis,  26  Ore.  i. 

"Where  a  bank  has  several  agents,  to  whom  separate  and  independent  du- 
ties are  intrusted,  notice  to  one  of  them,  in  regard  to  a  matter  not  pertaining 
to  his  duties,  cannot  affect  the  bank."  Clayton,  J.,  in  Goodloe  v.  Godley,  13 
Sm.  &  M.  (Miss.)  233,  238. 

A  statement  by  the  maker  of  a  note  to  the  president  of  a  bank  that  the  note 
was  procured  by  fraud  will  not  be  binding  upon  the  bank,  although  it  subse- 
quently discounts  the  note,  when  the  statement  was  not  made  to  the  president 
in  his  official  capacity,  and  was  not  made  at  the  bank  nor  with  reference  to 
the  bank's  business.     Washington  Bk.  v.  Pierce,  6  Wash.  491. 


KNOWLEDGE    OF    AGEM  UX 

igRi:  TK-.r  ceiii;.  per  aniiuui,  aiu.i  i)y    u'i'.."K:ii  sea  riuu 

.  to  the  plaintiff  bank.     The  defense  set  .  .-itt,  the 

r  the  note,  is  a  failure  of  consideration. 

.; story  of  the  transaction  is  this:    On  the  -  '  nf 

i.  ^S,  Dickinson,  the  payee  ot 
:  lii  \v  liimg  sold  to  Lovitt  fifty-fiv 
then  about  to  be  formed  for  whi» 
?  for  $2,900  due  in  six  months,     j  ■     ■.  a 
itt  and  Dickinson  before  this  note  became  di  ■ 
ed.    On  July  ii,  1888,  Lovitt  executed  the  uu.: 
■t  r?!c  twenty-seventh  of  that  month,  and  gave   i 

f  the  former  one,  and  Dickinson  endorsed  it  i> 
day.    Lovett  paid  the  interest  accrued  on  the  Oi\. 
!      ;(,•  purpose  of  the  trial  only,  it  was  agreed  "that  the  u 
>  given  for  a  contract  in  which  the  payee  of  the  note  a^ 
riain  shares  of  stock  which  then  had  no  existence  and  <.:■: 
same  when  the  corporation  was  formed  and  stock  cer- 
-sued ;  that  the  corporation  never  was  formed  and  the  stock 
'  s  never  issued,  and  that  there  was  a  complete  failure  of  con- 
;)  of  the  note;  that  said  Dickinson,  the  payee  of  the  note, 
lade  the  contract  set  forth  in  defendant's  answer,  at  all 
m  and  after  the  making  of  the  same  up  to  the  present  time 
its  existence  and  terms." 

'^'^rk  was  president,  Mr.  McKnight  cashier,  and  Dickin- 
ident  of  the  plaintiff  bank  when  the  bank  acquired  the 
on.    They  were  all  active  officers,  and  Dickif 
r.    Dickinson  had  a  conversation  with  Clark, 
h  he  said  he  had  or  expected  to  get  the  11 
od  Clark  whether  the  bank  would.  tal:-= 
:ount  the  note.    The  evidence  leaves  it 
'ion  occurred  after,  or  a  day  or  two  V 
cuted;  but  it  clearly  appears  that  C'. 
e  the  note.    The  note  was  executed  '■ 
that  day  Dickinson  endorsed  and  - 
.   the  same  time  figured  up  the  0  ;n  a  ae: 

;  ■.'!  the  slip  to  the  discount  clerk  o:   ..   ..-,  casbiv  r 
lerk.    The  discount  clerk  made  the  prope 
nt  of  the  note  less  $10.30  to  "^'^  ■  — '■" 
out  and  used  the  money.    Lc- 
ink,  and  had  a  line  of  credit  ' 
is  evidence  says  he  did  not  :  ' 

.rk  did.   Clark  testified  tb 
te  for  the  bank,  but  tha; 
nson,  that  is  to  say,  to  m: 
'.  the  proper  amount  of  ui:>.. 
represented  the  interest  fron 
-  Lvvcn,  ii,  the  latter  being  the  pos'. 


310 


r.iABiur 


h'   •  .light  have  been  held  liable  for 
aiia  the  bank.     Stew; n   v    T.ehisrl: 
A  corporation  is  li- 
business,  but  no  c;i 
firmed  that  it  is  al 
done  by  them  ind 
sivelv. 
In  r 
it  in  h; 
pany.    Str 
the  knowL 
side  of  tl; 
comm^  " 
to  de.' 

^-' 
executors 


rn  him 

^.  523- 
ng  its 

.l^  ..-^..^v.!  V ,1- 1.J,)  lias  af- 
:■'.]  frauds  of  its  agents 
-  iividual  benefit  exclu- 

.,  i'crrrine  was  dealing  with 

jod  as  a  stranger  to  the  com- 

..'29.    The  question  how  far 

.  i.i.iion,  which  he  acquired  out- 

V-,  and  which  was  not,  in  fact, 

binding  upon  it,  when  it  relates 

ihe  corporation,  was  considered 

enton  Gas  Light  Co.,  12  C.  E. 

'  t  nside  a  cor' e>ance  made  by 

' .    The  convey- 

r  of  the  execu- 

l^:)tts  conveyed 

.;  v,i.o.i;._v,  ;>VM...,.  on  the  defend- 

e  time  of  the  conveyance  to  the 

nt.     On  demurrer,  it  was  held 

Mr:  Poll>    knowledge,  as  coun- 

.ctively  r  'he  corporation, 

de  purcb>.  .out  notice. 

irrly  overruled,  and  the  rule  to 


'HE  Ml 


..900,  ex. 

)ickmson  in  lour 


,L  BANK  Oi^"  KANSAS  CITY 
ITT. 

vfTssouRi.     114  Mo.  519. 

li  a  negotiable  promissory  note 

nt  Lovitt  and  payable  to  O.  P. 

ifch  interest  trotn  date  at  the 


ounts  tiT. 
uil  capacil 
bank's  business. 


•a  separate  ai;  ient  du- 

gard  to  a  matu     .r  ,  (r-rtaining 
■n,  J.,  in  Goodloe  v.  Godley,  13 

resident  of  a  bank  that  the  note 

■m  the  bank,  although  it  subse- 

:-.  not  made  to  the  president 

tank  nor  with  reference  to 

Wash.  491. 


KNOWLEDGE   OF   AGENT.  3II 

rate  of  eight  per  cent,  per  annum,  and  by  Dickinson  endorsed  and 
delivered  to  the  plaintiff  bank.  The  defense  set  up  by  Lovitt,  the 
maker  of  the  note,  is  a  failure  of  consideration. 

The  history  of  the  transaction  is  this :  On  the  twenty-seventh  of 
January,  1888,  Dickinson,  the  payee  of  the  note  in  suit,  by  an  agree- 
ment in  writing  sold  to  Lovitt  fifty-five  shares  of  stock  in  a  corpora- 
tion then  about  to  be  formed  for  which  Lovitt  gave  his  note  of  that 
date  for  $2,900  due  in  six  months.  It  was  understood  between 
Lovitt  and  Dickinson  before  this  note  became  due  that  it  was  to  be  re- 
newed. On  July  II,  1888,  Lovitt  executed  the  note  sued  upon,  dat- 
ing it  the  twenty-seventh  of  that  month,  and  gave  it  to  Dickinson  in 
renewal  of  the  former  one,  and  Dickinson  endorsed  it  to  the  bank  on 
the  same  day.    Lovett  paid  the  interest  accrued  on  the  original  note. 

For  the  purpose  of  the  trial  only,  it  was  agreed  "that  the  note  sued 
upon  was  given  for  a  contract  in  which  the  payee  of  the  note  agreed 
to  sell  certain  shares  of  stock  which  then  had  no  existence  and  de- 
liver the  same  when  the  corporation  was  formed  and  stock  cer- 
tificates issued ;  that  the  corporation  never  was  formed  and  the  stock 
certificates  never  issued,  and  that  there  was  a  complete  failure  of  con- 
sideration of  the  note ;  that  said  Dickinson,  the  payee  of  the  note, 
having  made  the  contract  set  forth  in  defendant's  answer,  at  all 
times  from  and  after  the  making  of  the  same  up  to  the  present  time 
knew  of  its  existence  and  terms." 

W.  B.  Clark  was  president,  Mr.  McKnight  cashier,  and  Dickin- 
son vice-president  of  the  plaintiff  bank  when  the  bank  acquired  the 
note  sued  upon.  They  were  all  active  officers,  and  Dickinson  was 
also  a  director.  Dickinson  had  a  conversation  with  Clark,  the  presi- 
dent, in  which  he  said  he  had  or  expected  to  get  the  note  of  Lovitt. 
He  then  asked  Clark  whether  the  bank  would  take  it,  and  Clark 
agreed  to  discount  the  note.  The  evidence  leaves  it  in  doubt  whether 
this  conversation  occurred  after,  or  a  day  or  two  before  the  note  in 
suit  was  executed ;  but  it  clearly  appears  that  Clark  as  president 
agreed  to  take  the  note.  The  note  was  executed  on  the  eleventh  of 
July,  and  on  that  day  Dickinson  endorsed  and  delivered  it  to  the 
bank.  He  at  the  same  time  figured  up  the  discount  on  a  deposit 
slip  and  handed  the  slip  to  the  discount  clerk  or  to  the  cashier,  who 
passed  it  to  the  clerk.  The  discount  clerk  made  the  proper  entries, 
placing  the  amount  of  the  note  less  $10.30  to  the  credit  of  Dickin- 
son, who  checked  out  and  used  the  money.  Lovitt  was  a  well-known 
customer  of  the  bank,  and  had  a  line  of  credit  thereat. 

Dickinson  in  his  evidence  says  he  did  not  accept  the  note  for  the 
bank,  but  that  Clark  did.  Clark  testified  that  he  agreed  with  Dickin- 
son to  take  the  note  for  the  bank,  but  that  he  left  the  details  of  he 
arrangement  to  Dickinson,  that  is  to  say,  to  make  the  entries,  receive 
the  paper  and  deduct  the  proper  amount  of  interest  for  the  bank. 
The  $10.30  deducted  represented  the  interest  from  the  eleventh  of 
July  to  the  twenty-seventh,  the  latter  being  the  post-date  of  the  note. 


312  LIABILITY   TO  THIRD   PERSONS. 

The  officers  of  the  bank,  except  Dickinson,  knew  nothing  about  the 
contract  between  Dickinson  and  defendant,  and  the  bank  had  noth- 
ing whatever  to  do  with  the  original  note. 

The  defendant  asked  the  court  to  declare  the  law  to  be  that  the 
knowledge  of  the  vice-president  of  the  existence  and  nature  of  the 
agreement  constituting  the  consideration  of  the  note  in  suit  was  the 
knowledge  of  the  bank,  which  request  the  court  refused,  and  this 
presents  the  only  question  for  our  consideration. 

It  is  a  general  rule  that  notice  of  a  fact  acquired  by  an  agent  while 
transacting  the  business  of  his  principal  is  notice  to  the  principal, 
and  this  rule  applies  to  banking  and  other  corporations  as  well  as 
to  individuals.  It  is  the  duty  of  the  agent  to  communicate  to  the 
principal  information  thus  acquired,  which  would  affect  the  rights 
of  the  principal ;  and  the  presumption  is  that  the  agent  has  per- 
formed his  duty  in  this  behalf.  If  he  has  not,  still  the  principal 
should  be  charged  with  notice  of  the  existence  of  such  facts  thus 
coming  to  the  knowledge  of  the  agent,  because  he  selects  his  own 
agent  and  confides  to  him  the  particular  business.  Story  on  Agency, 
§  140.  But  the  reason  of  the  rule  ceases  when  the  agent  acts  for 
himself  and  not  his  principal,  and  the  rule  itself  ought  not  to  apply 
in  such  a  case.  Accordingly,  it  has  been  held  by  this  court  that 
knowledge  of  an  unrecorded  deed  acquired  by  officers  of  a  corpora- 
tion, while  acting  for  themselves  and  not  for  the  corporation,  will 
not  be  imputed  to  the  corporation.  Johnston  v.  Shortridge,  93  Mo. 
227. 

An  officer  of  a  banking  corporation  has  a  perfect  right  to  transact 
his  own  business  at  the  bank  of  which  he  is  an  officer,  and  in  such  a 
transaction  his  interest  is  adverse  to  the  bank,  and  he  represents 
himself  and  not  the  bank.  The  law  is  well  settled  that,  when  an 
officer  of  a  corporation  is  dealing  with  it  in  his  individual  interest, 
the  corporation  is  not  chargeable  with  his  uncommunicated  knowl- 
edge of  facts  derogatory  to  his  title  to  the  property  which  is  the 
subject  of  the  transaction.  Taylor  on  Corporations  (2d  ed.),  §  210; 
I  Waterman  on  Corporations,  §  135;  Frenkel  v.  Hudson,  82  Ala. 
158;  Wickersham  v.  Zinc  Co.,  18  Kan.  481;  Barnes  v.  Gas  Light 
Co.,  27  N.  J.  Eq.  33;  Innerarity  v.  Bank,  139  Mass.  332. 

In  the  case  last  cited  the  court,  after  speaking  of  the  general  rule 
that  knowledge  of  the  agent  will  be  imputed  to  the  principal,  says : 
"But  this  principle  can  have  no  application  where  the  director  of 
the  bank  is  the  party  himself  contracting  with  it.  In  such  case  the 
position  he  assumes  conflicts  entirely  with  the  idea  that  he  represents 
the  interest  of  the  bank.  *  *  *  ^  director  offering  a  note,  of 
which  he  is  the  owner,  for  discount,  or  proposing  for  a  loan  of 
money  on  collateral  security  alleged  to  be  his  own  property,  stands 
as  a  stranger  to  it." 

Now,  the  facts  set  up  to  defeat  a  recovery  here  are  the  facts  con- 
stituting the  transaction  between  Dickinson  and  the  defendant,  in 


le  bank, 
1.  Dick- 


this  particular  ti 
vher  customer,  ai^j  . 
•  1  it  must  fnllnw    frr' 

note. 
and  tigurert  nut  the  '  hence  h 

-^ent  the  bank.    The  .,-..  „  -.    ...eres)     t 
per  annum  from  date ;  and  it  appc  ■ 
st  at  that  rate  from  the  eleventh  of  Jui}..  u><-  niv.' 
I,  to  the  twenty-seventh  of  that  month,  the  date  of  ; 

't  appear  wli 

broad  fact   . 

ent  of  the  bank  agreed  to  take  the  note,  and  that  the  u.    ; 

the  discount  as  figured  up  by  Dickinson;  and  the  fact,  li 

it  was,  that  he  may  have  designated  the  rate  of  discottnt  in  th€ 

^  *  mce  is  wholly  immaterial.   He,  nevertheless,  represented  his 

est  in  the  entire  transaction.     The  judgment  is  affirmed. 


NATIONAL  LIFE  INSURANCE  COMPANY  OF  THE 

■UliT  OF  .\FPKxvLS  Or 


from  judgtnent  of  the  general  term  >. 

'  'i^dicial  department,  in  favor  of  def, 

ing  a  motion  for  a  new  trial,  and 


:p.  242.    See  . 


^  of  the 

■tvveen  1 

.:ig  whatever  to  di 

Ti  ,>  '!-h"ndant  : 

k  of  the 

knowledge  of  ' 
j'tresei! 

it:^ 

trail  s:t 

and  i 


the  cc' 


1^^;  Wick 


p 

i\. 

oi  the 

'V  :  . 

:■.    ihr    ,- 

Now.  the  facts  st  t 
ituting  the  transact; 


rat  the 
.']  noth- 

r>e  that  the 

-ire  of  the 
ic  noK    .  .    uit  was  the 
court  refused,  and  this 
ion. 

;uired  by  an  agent  while 
notice  to  the  principal, 
corporations  as  well  as 
ent  to  communicate  to  the 
eh  would  affect  the'  rights 
is  that  the  agent  has  per- 
■  -M  the  principal 

1  ich  facts  thus 
elects  his  own 
•ry  on  Agency, 
agent  acts  for 
..    ...•:  ..lu   .,--        ...silt  not  to  apply 
■X  has  been  held  by  this  court  that 
vd  acquired  by  officers  of  a  corpora- 
's and  not  for  the  corporation,  will 
-hortridge,  93  Mo. 

ration  has  a  pertect  right  to  transact 

^  'lich  he  is  an  officer,  and  in  such  a 

a  the  bank,  and  he  represents 

.;  n  w  is  w:ell  settled  that,  when  an 

^q-  with  it  in  his  individual  interest, 


■th  his  ' 
?  to  thf 


^an.  481 


nirector 
r  propos;. 


aicated  knowl- 
■  which  is  the 

1.),  §  210; 

■1,  82  Ala. 

Gas  Light 

e  general  rule 
rincipal,  says : 
'if  director  of 
■  1  case  the 
represents 
i  note,  of 
:i  loan  of 


J  his  own  property,  stands 

ery  here  are  the  facts  co^ 
-ion  and  the  defendant,  m 


KNOWLEDGE   OF  AGENT.  313 

which  Dickinson  did  not  represent  or  profess  to  represent  the  bank, 
and  with  which  the  bank  had  nothing  whatever  to  do.  Again,  Dick- 
inson in  offering  the  note  to  the  bank  for  discount  represented  his 
own  personal  interest ;  and  Clark,  the  president,  represented  the 
bank.  In  this  particular  transaction  Dickinson  occupied  the  position 
of  any  other  customer,  and  not  that  of  an  officer  or  agent  of  the 
bank ;  and  it  must  follow  from  the  principles  of  law  before  stated 
that  the  bank  is  not  chargeable  with  his  knowledge  of  uncommuni- 
cated  facts  affecting  his  title  to  the  note.  But  it  is  said  Dickinson 
fixed  and  figured  out  the  discount,  and  hence  he  did  in  point  of  fact 
represent  the  bank.  The  note  bore  interest  at  the  rate  of  eight  per 
cent,  per  annum  from  date ;  and  it  appears  Dickinson  calculated 
interest  at  that  rate  from  the  eleventh  of  July,  the  date  of  the  trans- 
action, to  the  twenty-seventh  of  that  month,  the  date  of  the  note,  and 
deducted  as  discount  $10.30;  but  it  does  not  appear  who  designated 
the  amount  of  discount  to  be  paid.  The  broad  fact  remains  that 
the  president  of  the  bank  agreed  to  take  the  note,  and  that  the  bank 
accepted  the  discount  as  figured  up  by  Dickinson ;  and  the  fact,  if 
such  it  was,  that  he  may  have  designated  the  rate  of  discount  in  the 
first  instance  is  wholly  immaterial.  He,  nevertheless,  represented  his 
own  interest  in  the  entire  transaction.  The  judgment  is  affirmed. 
All  concur.^ 


THE  NATIONAL  LIFE  INSURANCE  COMPANY  OF  THE 
UNITED  STATES  v.  MINCH,  administrator. 

1873.     Court  of  Appeals  of  New  York.     53  N.  Y.  144. 

Appeal  from  judgment  of  the  general  term  of  the  supreme  court 
in  the  third  judicial  department,  in  favor  of  defendant,  entered  upon 
an  order  denying  a  motion  for  a  new  trial,  and  directing  judgment 
on  a  nonsuit. 

^Accord:    Seaverns  v.  Presbyterian  Hosp.,  173  111.  414. 

Contra:  Henry  v.  Allen,  28  N.  Y.  Sup.  242.  See  criticism  of  this  case  in 
8  Harv.  Law  Rev.  229. 

"It  is  sometimes  said  that  it  cannot  be  presumed  that  an  agent  will  commu- 
nicate to  his  principal  acts  of  fraud  which  he  has  committed  on  his  own  ac- 
count in  transacting  the  business  of  his  principal,  and  that  the  doctrine  of 
imputed  knowledge  rests  upon  a  presumption  that  an  agent  will  communicate 
to  his  principal  whatever  he  knows  concerning  the  business  he  is  engaged  in 
transacting  as  agent.  It  may  be  doubted  whether  the  rule  and  the  exception 
rest  on  any  such  reasons.  It  has  been  suggested  that  the  true  reason  for  the 
exception  is  that  an  independent  fraud  committed  by  an  agent  on  his  own 
account  is  beyond  the  scope  of  his  employment,  and  therefore  knowledge  of 
it,  as  matter  of  law,  cannot  be  imputed  to  the  principal,  and  the  principal  can- 
not be  held  responsible  for  it."  Field,  J.,  in  Allen  v.  South  Boston  R.  R.  Co., 
150  Mass.  200,  206. 


314  LIABILITY   TO   THIRD   PERSONS. 

This  action  was  brought  to  recover  of  the  defendant,  as  adminis- 
trator, etc.,  of  Anna  C.  Minch,  $2,500  and  interest,  as  damages  suf- 
fered by  the  plaintiff  by  reason  of  a  conspiracy  and  fraudulent  rep- 
resentations, whereby  the  plaintiff  was  induced  to  insure  the  life  of 
the  deceased,  and  to  pay  the  loss  after  her  death.  The  complaint 
alleged  in  substance  that  about  the  17th  day  of  March,  1869,  the 
deceased,  being  at  the  time  incurably  diseased  with  a  cancer,  with 
her  husband  and  Doctor  Potter,  combined  and  confederated  together 
to  deceive,  cheat  and  defraud  the  plaintiff  out  of  $2,000  by  procur- 
ing an  insurance  upon  her  life  for  that  amount.  That  for  the  pur- 
pose they  did,  orally  and  in  writing,  falsely  and  fraudulently  repre- 
sent to  the  plaintiff,  in  applying  for  a  policy  of  insurance  upon  her 
life,  that  she  had  not  had,  and  did  not  then  have  any  serious  illness, 
etc.,  and  that  she  was  then,  in  all  respects,  a  first-class,  healthy  risk, 
and  safely  insurable.  That  such  representations  were  false  and 
fraudulent,  to  the  knowledge  of  the  said  deceased,  her  husband  and 
said  Potter,  and  were  made  with  intent  to  deceive  the  plaintiff. 
That  plaintiff,  its  officers  and  agents,  then  believed  the  said  repre- 
sentations to  be  true,  relied  thereon,  and  were  deceived  thereby. 
That  thereupon,  in  consideration  of  said  representations  and  of  the 
premium,  the  plaintiff  duly  issued  its  contract  or  policy  of  life  in- 
surance to  the  said  Anna  C.  Minch,  insuring  her  life  in  the  sum  of 
$2,000.  That  after  her  death  (on  the  8th  of  July,  1869),  in  pur- 
suance of  the  fraudulent  combination  and  purposes  aforesaid,  her 
said  husband  and  said  Potter  falsely  and  fraudulently  represented 
to  the  plaintiff  that  the  cause  of  her  death  was  pneumonia  or  inflam- 
mation of  the  lungs,  and  not  any  other  disease.  That  the  plaintiff, 
believing  these  representations  to  be  true,  relied  thereon  and  was  de- 
ceived thereby,  and  thereupon,  after  due  notice  and  proof  of  her 
death  on  or  about  the  eleventh  day  of  September,  1869,  paid  to  the 
defendant,  as  administrator,  etc.,  the  amount  insured. 

The  facts  and  evidence  upon  the  trial,  so  far  as  pertinent  to  the 
questions  discussed,  appear  sufficiently  in  the  opinion. 

The  court  nonsuited  the  plaintiff.  Exceptions  were  ordered  to  be 
heard  at  first  instance  at  general  term. 

Church,,  C.  J. — I  am  unable  to  concur  with  the  ruling  of  the 
learned  judge  at  the  circuit,  which  was  sustained  by  a  majority  of 
the  court  at  general  term,  that  there  was  not  evidence  sufficient  to 
go  to  the  jury  to  charge  fraud  or  conspiracy  upon  the  deceased  in 
obtaining  the  policy,  a  conspiracy  was  alleged  between  the  deceased, 
her  husband  and  Doctor  Potter,  the  medical  examiner  for  the  plain- 
tiff, to  fraudulently  obtain  a  policy  of  insurance  upon  the  life  of  Mrs. 
Minch,  knowing  that  she  had,  at  the  time,  a  cancer,  which  was  an 
incurable  disease.  It  was  not  necessary  to  establish  the  conspiracy 
against  the  three.  It  was  sufficient  to  establish  that  the  policy  was 
obtained  by  fraud,  for  which  the  deceased  was  chargeable  alone,  or 


th  otliers,  and  thi  i  evidence, 

ices  from  which  nfer  it. 

ation  contained  the  '    i  any 

=^s,  local  disease  or  pr  e  had 

best  of  her  knowie.:  -   any 

,   weakness  tenditv  ■     "' 

•iswer  was  in  tht 
mat  she  had,  at  the  taDe,  a  cancer  :■:  .;cf  ii^ 
are  of,  and  of  which  she  afterward  died.     ^ 
evidence  as  to  tlie  fact  of  a  cancer,  and  als 
I  knew  it,  which  should  have  been  subn 
^t  that  she  signed  the  application,  that  she  wa 
Potter  for  the  purpose  of  making  the  medical  c,  .  m-        .  , 
X  communication  with  her  husband,  who,  with  the  doctor, 
;ive  in  making  the  application  and  procuring  the  policy,  and 
ircumstances,  were  pertinent  to  go  to  the  jury,  upon  the 
:;  of  her  knowledge  of  the  general  fact  that  an  insurance  was 
tected  upon  her  life,  and,  also,  of  the  substance  of  the  appli- 
A'hich  she  had  signed.    It  is  true  there  was  evidence  tending 
A'  that  the  application  was  not,  in  fact,  read  over  to  her,  and 
c  did  not  know  what  it  contained,  but  her  ignorance  of  its 
was^ar  from  being  conclusively  proved. 
Ti,  if  the  husband,  as  the  agent  of  the  wife,  procured  the 
'<y  fraud,  she  cannot  retain  the  benefit  of  it  and  be  relieved 
'e  consequences  of  the  fraudulent  means  by  which  it  was  ob- 
it is  established  that  an  innocent  principal  cannot  t?' 
'ge  resulting  from  the  fraud  of  an  agent,  without  y-.^ 
civilly  liable  to  the  injured  party.     (lo  N.  Y.  3 
V,  58  Barb.  349.)     If  the  husband  obtained  ^^^  ' 
',  acting  as  the  agent  of  his  wife.- he  occupii 
•'1'     '  -  '^fi  ■':■  money,  as  '        '       1  represe^ 
..■i.i  ..:ed  as  her  ai;    •  ..  is  def-'  •' 

i"  title  to  the  policy,  which,  ii  procured  b^ 

t  also  erred  in  refusing  to  allow  the  p 
''■"*  question,  and  to  charge  them  ■'• 

-ved  it  was  known  by  the  husb  d 

lie  had  a  cancer,  which  vsa^ 
Landing  between  them  that  r!. 
er  life,  at  the  time  knowing  ^ 

iT  was  entitled  to  recover,      i  s 

aw-mill.    This  insurance  and  anot  d 

'  iii-  wife,  at  the  suggestion  '^''  '•' 
ng  friend.  The  medical  t 
'•■    -y—y  ^-:'  --.rlied  to  t'. 
' .  •  vard  to 
evidence  that  he     • 


:>i4 


This  fiction  was  b 
trator,  etc.,  of  Anna 
fered  by  the  plaintili 
resentations,  wherel. 
the  deceased,  and  l 
alleged  in  subst  ■ 
deceased,  beins^ 
her  husband  - 
to  deceive,  '. 
ing  an  insu 
pose  thev   ■ 
sent  to 
life     ' 
etc 


said   Po 

Tlir.f    r,; 


belie  vit:; 
ceived  : 

death  ci 
defendant,  . 
The  facts 
questions  di. 

The  court  ..., 
heard  at  first  in 
Church;,  C. 
learned  judge  a 
it  at  get) 
:e  jury  t. 
^i;^  the  policy, 
\n(l  and  Dc 
titf,  silently  o 

Miiivn.     .i.'vving  ♦^'^ 
incurable  diseas: 
against  the  three,     i 
obtained  bv  fraud,  f. 


lie  defendant,  as  adminis- 
j  interest,  as  damages  suf- 
'juspiracy  and  fraudulent  rep- 
^  induced  to  ^"     •     'be  life  of 
er  her  death  omplaint 

I  7th  day  of  Axdrcl;,   1S69,  the 
diseased  with  a  cancer,  witl 
:  and  con*  together 

,  ii  out  of  ,  y  procur 

:•  that  amount.     That  for  the  pur- 
'vjg,  falsely  and  fraudulently  repre- 
.   for  a  policy  of  insurance  upon  her 
did  not  then  have  any  serious  illness 
all  respects,  a  first-class,  healthy  risk 
such  repre-  were  false  an< 

of  the  said  '  iier  husband  an<; 

with  intent  to  cieceive  the  plaintiff. 
':  agents,  then  believed  the  said  repre- 
thereon,  and  were  deceived  thereby. 

:-  ^f  ■-"'•  '     '^•■rations  and  of  th<' 

policy  of  life  in 
lincti,  insu.iii^  ,ic.  life  in  tl^e  sum  of 
•   fon  the  8th  of  July,  1869),  in  pur- 
gation and  purposes  aforesaid,  her 
.j5ely  and  fraudulently  representee; 
>t  her  death  was  pneumonia  or  intiam 
I'^v  other  disease.     That  the  plaintifi" 
be  true,  relied  thereon  and  was  dc 
iter  due  notice  and  proof  of  her 
13'  of  September,  1S69,  paid  to  the 
the  amount  insured. 
■ie  trial,  so  far  as  pertinent  to  the 
ontly  in  the  opinion. 
■I.    Exceptions  were  ordered  to  be 
ierm. 

concur  with  the  ruling  of  the 

as  sustained  by  a  majority  of 

'dence  sufficient  to 

11  the  deceased  in 

.  alleged  between  the  decease<i 

ledical  examiner  for  the  plain 

aisurance  upon  the  life  of  Mrs. 

time,  a  cancer,  which  was  an 

ry  to  establish  the  conspiracy 

(-ablish  that,  the  policy  wa^ 

!  was  chargeable  alone,  ot 


I 


KNOWLEDGE   OF   AGENT.  315 

in  connection  with  others,  and  this  might  be  done  by  direct  evidence, 
or  by  circumstances  from  which  a  jury  could  reasonably  infer  it. 

The  application  contained  the  questions  whether  she  had  had  any 
serious  illness,  local  disease  or  personal  injury,  and  whether  she  had 
then,  to  the  best  of  her  knowledge  or  belief,  any  disorder,  or  any 
infirmity  or  weakness  tending  to  impair  her  constitution,  to  all  of 
which  the  answer  was  in  the  negative.  There  was  evidence  tending 
to  show  that  she  had,  at  the  time,  a  cancer  in  her  breast  which  she 
was  aware  of,  and  of  which  she  afterward  died.  There  was  con- 
flicting evidence  as  to  the  fact  of  a  cancer,  and  also  as  to  whether  the 
deceased  knew  it,  which  should  have  been  submitted  to  the  jury. 
The  fact  that  she  signed  the  application,  that  she  was  examined  by 
Doctor  Potter  for  the  purpose  of  making  the  medical  certificate,  her 
constant  communication  with  her  husband,  who,  with  the  doctor, 
was  active  in  making  the  application  and  procuring  the  policy,  and 
other  circumstances,  were  pertinent  to  go  to  the  jury,  upon  the 
question  of  her  knowledge  of  the  general  fact  that  an  insurance  was 
being  effected  upon  her  life,  and,  also,  of  the  substance  of  the  appli- 
cation which  she  had  signed.  It  is  true  there  was  evidence  tending 
to  show  that  the  application  was  not,  in  fact,  read  over  to  her,  and 
that  she  did  not  know  what  it  contained,  but  her  ignorance  of  its 
nature  was  far  from  being  conclusively  proved. 

Again,  if  the  husband,  as  the  agent  of  the  wife,  procured  the 
policy  by  fraud,  she  cannot  retain  the  benefit  of  it  and  be  relieved 
from  the  consequences  of  the  fraudulent  means  by  which  it  was  ob- 
tained. It  is  established  that  an  innocent  principal  cannot  take  an 
advantage  resulting  from  the  fraud  of  an  agent,  without  rendering 
himself  civilly  liable  to  the  injured  party.  (lo  N.  Y.  34;  Graves 
V.  Spier,  58  Barb.  349.)  If  the  husband  obtained  the  policy  by 
a  fraud,  acting  as  the  agent  of  his  wife,  he  occupies  the  position 
of  claiming  to  keep  money,  as  her  legal  representative,  which  he 
fraudulently  obtained  as  her  agent.  He  is  defending  this  action 
upon  her  title  to  the  policy,  which,  if  procured  by  his  fraud,  is  in- 
valid. 

The  court  also  erred  in  refusing  to  allow  the  plaintiff  to  go  to  the 
jury  upon  the  question,  and  to  charge  them  that  if  from  the  evi- 
dence they  believed  it  was  known  by  the  husband.  Doctor  Potter  and 
the  deceased  that  she  had  a  cancer,  which  was  incurable,  and  that 
there  was  an  understanding  between  them  that  they  were  to  obtain 
an  insurance  upon  her  life,  at  the  time  knowing  she  was  incurably 
diseased,  the  plaintiff  was  entitled  to  recover.  The  defendant  was 
a  laborer  in  a  saw-mill.  This  insurance  and  another  were  procured 
upon  the  life  of  his  wife,  at  the  suggestion  of  his  employer,  whose 
wife  was  the  certifying  friend.  The  medical  examiner  was  a  brother- 
in-law  of  the  employer,  who  first  applied  to  the  agent  about  a  policy, 
and  accompanied  the  husband  afterward  to  the  agent  on  the  same 
business,  and  there  is  evidence  that  he  procured  the  signature  of 


3l6  LIABILITY   TO  THIRD   PERSONS. 

the  deceased  to  the  appHcation,  He  had  attended  the  deceased  as  a 
physician,  and,  it  is  claimed,  treated  the  disease  as  a  cancer.  It  is 
also  claimed  that  the  defendant  and  his  wife  went  to  Rome  the  fall 
before  to  consult  a  cancer  doctor  under  his  advice,  and  there  was 
other  evidence  proper  for  the  jury  tending  to  show  that  all  those 
persons  supposed  and  believed  that  the  deceased  had  a  cancer  at  the 
time  of  the  policy,  and  also  that  she  in  fact  died  with  that  disease 
about  three  months  afterward.  If  Doctor  Potter,  the  husband  and 
deceased  knew  that  the  latter  had  an  incurable  cancer,  and  acted  in 
concert  in  procuring  the  policy,  the  plaintiffs  were  entitled  to  re- 
cover. Even  if  the  company  would  otherwise  be  chargeable  with 
the  knowledge  of  Doctor  Potter  as  their  agent,  they  would  be  re- 
lieved from  it  under  such  circumstances.  If  a  person  colludes  with 
an  agent  to  cheat  the  principal,  the  latter  is  not  responsible  for  the 
acts  or  knowledge  of  the  agent.  The  rule  which  charges  the  prin- 
cipal with  what  the  agent  knows  is  for  the  protection  of  innocent 
third  persons,  and  not  those  who  use  the  agent  to  further  their  own 
frauds  upon  the  principal.  If  Doctor  Potter  did  not  know  that  the 
cancer  existed,  and  did  not  collude  with  the  deceased  or  her  hus- 
band, as  he  testified,  then  he  is  innocent  of  any  wrong,  and  the  plain- 
tiff is  not  injured;  and  if  he  did,  the  defendant  is  not  to  be  injured 
by  his  guilty  knowledge.  It  is  not  intended  to  intimate  an  opinion 
upon  the  facts  or  any  of  them ;  the  evidence  was  conflicting  as  to 
nearly  all  of  them.  All  that  we  intend  to  say  is  that  it  was  not  a 
case  for  a  nonsuit.  It  should  have  been  submitted  to  the  jury.  The 
court  should  not  nonsuit  a  plaintiff  except  in  cases  where  a  verdict 
would  be  set  aside  as  against  evidence.  This  is  not  such  a  case.^ 
*  :K  *  'pi'ie  judgment  must  be  reversed  and  a  new  trial  ordered, 
costs  to  abide  event.~ 
All  concur. 

^  A  portion  of  the  opinion  is  omitted. 

^  "The  doctrine  of  constructive  notice,  when  properly  limited,  is  a  useful  one, 
but  to  apply  it  to  a  case  where  the  parties  relying  on  the  doctrine  are  the 
agents  themselves  and  others  who  had  expressly  agreed  that  the  facts  in  pos- 
session of  the  agents  should  not  be  communicated  to  the  principal,  would  make 
it  an  instrument  of  fraud."  Buchanan,  J.,  in  Traders',  etc.,  Bk.  v.  Black,  io8 
Va.  59,  65. 

To  same  effect  see  Hickman  v.  Green,  123  Mo.  165;  Cowan  v.  Curran,  216 
111.  598. 


i 


Sectiou  4. — DeclaraticiiJi  and  iLdiii:;i-ion.s  of  Agent. 
FAIRLEY  'INGS. 

i8o4-    High  Court  of  Chancery,    io  Ves.  Jr.  !-:.> 

The  Master  of  the  Rolls  (Sir  William  Grant). 
'■  "      cause  is  a  loan  of  money  by  the  late  plaintiflf,  .^y 
to  the  defendant     As  it  is  not  by  hill  in 
iciit  is  to  be  recovered,  it  is  incumbent  v 
nd  to  prove,  some  ground  lor  coming  ihi 
It,  or  the  means  of  obtaining  payment  of  hi;  ie 

:ju— lion  of  jurisdiction  must  depend  upon  the  alk^^.  :;e 

bill;  which  states  that  the  defendant  applied  to  the  plain:  -.e 

loan  of  three  lacs  of  rupees  upon  the  security  of  the  dc;i 
bond:  that  the  plaintiff  agreed  to  advance  that  sum  by  insta; 
'  '      <i  was  executed,  which  it  was  agreed  should  rema- 

hop,  an  agent  of  the  defendant,  until  the  whole 
:  meed,  and  then  should  be  delivered  to  the  plamtiil; 

:i  '  .  ••  '-  .  y  was  advanced,  but  the  plaintiff  never  received  the 
bond ;  Caunto  Baboo  in  answer  to  his  repeated  applications  at  length 
info'-'^i"TC  him  that  it  had  been  delivered  up  to  the  defendant. 

ort  of  this  statement  the  plaintiff  has  not  read,  and  could 
not  read,  any  part  of  the  answer.     But  the  plaintiff  has  gone  into 
evidence  of  declarations  by  Gobindee  Ba]x>o  and  C^'into  Baboo; 
and  tlie  otiestion  is  whether  these  declarations  can  a- 
of  sucii   facts  as  are  alleged  by  the  bill.     Upon  th 
opinion  i?,  that  these  declarations  do  not  come  within  ti. 
upon  which  they  are  supposed  to  be  admissible.    As  a  • -■ 
sition,  what  one  man  says,  not  upon  oath,  cannot  be  *  si 

:i!    ■'    r  man.    The  exception  must  arise  out  of  ,  •  t 

■>p    '-oupled  with  the  declarations  made  .t 

in  the  scope  of  his  r  n- 

:^  ;  and  in  many  cases  'ie 

agent  may  be  what  constitutes  the  agreement  of  the  prin- 

cipal ;  '-'^centations  or  statements  made  may  be  Ht-  -.mi,. ela- 

tion c  cement  to,  the  agreement.    Therefore  g 

^?  '''''''  »   uy  law,  evidence  must  be  admitted  tc  te' 

that  statement  or  representation.     So,  \  d 

-  with  which  those  acts  ar 

line  their  quality.     The  c 

be  bound  by  the  act,  must  be  affected  by  th< 
one  or  the  othti  '  >'  nip,<;e  ways  I  do  not  know  .  . 
,ent  can  be  ».  gainst  his  principal.    Tli 

"'■■'  -annot  .-'.  '  -vof  of  it;  though.' 

the  bu  :  h  the  person  m:  as 

ployed  as  agent.  ranee,  if  it  was  a  ni«.i^ 


LIABIL' 


■ceased  to  the  aj' 
J...,.  ..dan,  and,  it  i^  >■ 
also  claimed  that  ' 
'    '  -  z  to  con'^-if 

evidenc 


auouc  till 
deceabcd  , 
conct 


^ed  as  a 

..Li.     It  is 

.    ine  the  fall 

1  there  was 

at  all  those 

:  '"  'T  at  the 

:i  -i  disease 

or,  the  husband  and 

cancer,  and  acted  in 

,vere  entitled  to  re- 

.iv:  be  chargeable  with 

igent,  they  would  be  re- 

'        :-  r-on  colludes  with 

t>onsible  for  the 

:e.s  the  prin- 

of  innocent 

fiber  their  own 

J.  t  know  that  the 

•le  deceased  or  her  hus- 
Tong,  and  the  plain- 
is  not  to  be  injured 
•i  an  opinion 
ilicting  as  to 
at  it  was  not  a 
o  the  jury.    The 
n  cases  where  a  verdict 
I  his  is  not  such  a  case.-' 
-ud  a  new  trial  ordered, 


are  the 

t:;  in  pos- 

,  would  n 
V.  Black, 


i 


.van  V.  Curran,  2r6 


DECLARATIONS  AND  ADMISSIONS.  317 

Section  4. — Declarations  and  Admissions  of  Agent. 
FAIRLEY  V.  HASTINGS. 
1804.     High  Court  of  Chancery.     10  Ves.  Jr.  123. 

The  Master  of  the  Rolls  (Sir  William  Grant). — The  sub- 
ject of  this  cause  is  a  loan  of  money  by  the  late  plaintiff,  Maha  Rajah 
Nobkissen,  to  the  defendant.  As  it  is  not  by  bill  in  equity  that 
money  lent  is  to  be  recovered,  it  is  incumbent  upon  the  plaintiff  to 
state,  and  to  prove,  some  ground  for  coming  into  this  court  for  the 
payment,  or  the  means  of  obtaining  payment  of  his  demand.  The 
question  of  jurisdiction  must  depend  upon  the  allegations  of  the 
bill;  which  states  that  the  defendant  applied  to  the  plaintiff  for  the 
loan  of  three  lacs  of  rupees  upon  the  security  of  the  defendant's 
bond ;  that  the  plaintiff  agreed  to  advance  that  sum  by  instalments ; 
that  a  bond  was  executed,  which  it  was  agreed  should  remain  with 
Caunto  Baboo,  an  agent  of  the  defendant,  until  the  whole  money 
should  be  advanced,  and  then  should  be  delivered  to  the  plaintiff; 
that  the  money  was  advanced,  but  the  plaintiff  never  received  the 
bond ;  Caunto  Baboo  in  answer  to  his  repeated  applications  at  length 
informing  him  that  it  had  been  delivered  up  to  the  defendant. 

In  support  of  this  statement  the  plaintiff'  has  not  read,  and  could 
not  read,  any  part  of  the  answer.  But  the  plaintiff  has  gone  into 
evidence  of  declarations  by  Gobindee  Baboo  and  Caunto  Baboo; 
and  the  question  is  whether  these  declarations  can  amount  to  proof 
of  such  facts  as  are  alleged  by  the  bill.  Upon  that  question  my 
opinion  is,  that  these  declarations  do  not  come  within  the  principle, 
upon  which  they  are  supposed  to  be  admissible.  As  a  general  propo- 
sition, what  one  man  says,  not  upon  oath,  cannot  be  evidence  against 
another  man.  The  exception  must  arise  out  of  some  peculiarity  of 
situation,  coupled  with  the  declarations  made  by  one.  An  agent 
may,  undoubtedly,  within  the  scope  of  his  authority,  bind  his  prin- 
cipal by  his  agreement;  and  in  many  cases  by  his  acts.  What  the 
agent  has  said  may  be  what  constitutes  the  agreement  of  the  prin- 
cipal ;  or  the  representations  or  statements  made  may  be  the  founda- 
tion of,  or  the  inducement  to,  the  agreement.  Therefore,  if  writing 
is  not  necessary  by  law,  evidence  must  be  admitted  to  prove  the 
agent  did  make  that  statement  or  representation.  So,  with  regard 
to  acts  done,  the  words,  with  which  those  acts  are  accompanied,  fre- 
quently tend  to  determine  their  quality.  The  party,  therefore,  to 
be  bound  by  the  act,  must  be  affected  by  the  words.  But  except  in 
one  or  the  other  of  those  ways  I  do  not  know  how  what  is  said  by  an 
agent  can  be  evidence  against  his  principal.  The  mere  assertion  of 
a  fact  cannot  amount  to  proof  of  it ;  though  it  may  have  some  rela- 
tion to  the  business  in  which  the  person  making  that  assertion  was 
employed  as  agent.    For  instance,  if  it  was  a  material  fact  that  there 


3l8  LIABILITY   TO   THIRD   PERSONS. 

was  the  bond  of  the  defendant  in  the  hands  of  Caunto  Baboo,  that 
fact  would  not  be  proved  by  the  assertion  that  Gobindee  Baboo,  sup- 
posing him  an  agent,  had  said  there  was ;  for  that  is  no  fact,  that  is, 
no  part  of  any  agreement  which  Gobindee  Baboo  is  making,  or  of 
any  statement  he  is  making  as  an  inducement  to  an  agreement.  It 
is  mere  narration,  communication  to  the  witness  in  the  course  of 
conversation,  and  therefore  could  not  be  evidence  of  the  existence  of 
the  fact. 

The  admission  of  an  agent  cannot  be  assimilated  to  the  admission 
of  the  principal.  A  party  is  bound  by  his  own  admission,  and  is  not 
permitted  to  contradict  it.  But  it  is  impossible  to  say  a  man  is  pre- 
cluded from  questioning  or  contradicting  anything  any  person  has 
asserted  as  to  him,  as  to  his  cfonduct  or  his  agreement,  merely  be- 
cause tliat  person  has  been  an  agent  of  his.  If  any  fact,  material  to 
the  interest  of  either  party,  rests  in  the  knowledge  of  an  agent,  it  is 
to  be  proved  by  his  testimony,  not  by  his  mere  assertion.  Lord 
Kenyon  carried  this  so  far  as  to  refuse  to  permit  a  letter  by  an 
agent  to  be  read  to  prove  an  agreement  by  the  principal;  holding, 
that  the  agent  himself  must  be  examined ;  Alaesters  v.  Abram,  i 
Esp.  N.  P.  Gas.  375.  If  the  agreement  was  contained  in  the  letter,  I 
should  have  thought  it  sufficient  to  have  proved  that  letter  was  writ- 
ten by  the  agent ;  but,  if  the  letter  was  offered  as  proof  of  the  con- 
tents of  a  pre-existing  agreement,  then  it  was  properly  rejected. 
This  doctrine  was  discussed  incidentally  in  Bauerman  v.  Radenius,  7 
T.  R.  663 ;  and  in  that  case  there  is  a  reference  to  another,  Biggs 
v.  Lawrence,  3  T.  R.  454,  in  which  Mr.  Justice  Buller  held  that 
a  receipt  given  by  an  agent  for  goods,  directed  to  be  delivered  to 
him,  might  be  read  in  evidence  against  the  principal.  The  counsel 
in  Bauerman  v.  Radenius  state  that  the  contrary  had  been  fre- 
quently since  held  by  Lord  Kenyon  at  nisi  priiis,  without  its  hav- 
ing ever  been  questioned.  That  statement  does  not  appear  to 
have  been  denied  upon  the  other  side ;  and  seems  to  have  been 
acquisced  in  by  Lord  Kenyon ;  who  said  "that  was  not  the  point 
upon  which  the  case  was  argued  or  determined ;"  meaning  the  point, 
that  such  a  receipt  could  be  admitted  in  evidence. 

It  will  be  found,  however,  that  this  question  can  hardly  be  said 
to  arise  in  this  case;  when  it  is  considered  what  the  concern  of 
Caunto  Baboo  in  this  transaction  was,  and  what  are  the  facts 
in  proof  of  which  his  declaration  was  offered.  Caunto  Baboo 
is  stated  to  have  been  in  the  employment  of  the  defendant. 
One  of  the  witnesses  says  he  had  the  general  management  of  his 
pecuniary  concerns.  But  of  this  particular  transaction  he  does 
not  appear,  either  by  the  bill  or  the  witness,  to  have  had  the  man- 
agement. Upon  the  whole  of  the  statement  and  evidence  it  does 
not  appear  that  Caunto  Baboo  was  concerned  in  the  negotiation  of 
the  loan;  that  he  was  employed  as  the  agent  for  this  purpose.  The 
statement  of  the  bill  represents  the  defendant  himself  to  have  made 


;  AV.ATlCr:  3;  9 

liiLic;"!  V,  "hoo  rela- 

c.ement,  not  .  would 

^.tatement  of  an  -  to 

d  in  evidence.  rto 

s  the  agent  of  the  u< 
iboo  is  represented  v. 
■:>i  testimony.    A  man 
aj<reed  to  do;  but  '  ^■.>.'\k:    ■. 

that  the  defendant  agreement, 

■"  "       admitted  he  maac  11.    In  tru;] 
nade  it.    But  suppose  Caunt' 
ui  the  defendant,  and  that  he  said  he 
; he  agreement  for  this  loan,  and  did  pi', 
e  a  bond  for  the  money,  and  did  execute  a  bond,  : 
not  to  the  plaintiff,  but  to  i'  '  .,>,-,,.,-:   and  he  gav^  , 
".fendant,  who  undertook  he  interest,  and 

<1  for  the  whole;  all  ''  '  :u  ot  v.o  evidence  whatsocvjr 

;he  defendant  had  ag  o,  or  had  done,  or  omitted  to  do 

nee  of  h:  !ent,  or  his  acts,  or  his  breach  of 

terly  imi  .^  support  this  bill. 

.  bill  was  dismissed.^ 


,.viN,  J,  i.N  M^KSBURG  &  MERIDIAN  '^^     -.  O'BRIEN. 

-UPREME  Court  of  the  United  States,     iio 

the  trial  below,  plaintiffs  introduced  one  Roa 
■  iuring  his  examination  wu'i  ■,'.<\  -d  whether  he 
the  accident,  have  ?  ^.  with  the  - 

'f  defendant's  traiu  at  itic   aiue  of  the  r,: 
■eed  at  which  the  train  was  moving  a^ 
:;  objected,  but  its  ( -  ' 
'ted  to  an^ve-.     Th( 
>,  on  cxammation  of 

■    !'i  cross-ties  under    :.       

-wer  to  the  above  question  was:  nd 

:  after  the  accident  occurred.  ^  -a- 

\jan  Herbert,  the  engineer  ha  -o- 

d  to  the  train  at  the  time  of 
in  was  moving  at  the  rate  '">f 
!  its  objection  I' 
]\\v\\     Tl'.is  mci 

•^  of  his  prircv 


Oie  bend  oi  ti:c 
\,'Ould  not  be  p^ 
posing  him  an  agj 
no  part  of  an^   r 
any  statemer. 
is  mere  nan- 
conversation, 
the  fact. 
The  Bf 


pCM 

elude 


lilt:-   c\  I. 


IK: 


have  been  dci' 
seed  in 
,   which  ;" 
thai  such  a  r- 
It  will  be 
to  arise  in  t 
Caunto   Bab' 
in   proof   of 

•    to    iu. 
le  witnt 
concei . 
ir,  eithe; 
agt-nr,  L     Upon 
not  appear  that  ( 
the  loan ;  that  he 
statement  of  the  ijiu  :c. 


•Id  not  be  eA 


•jO.  that 

'OO,  sup- 

;tt  IS  no  lact,  that  is, 

•■  i<   making,  or  of 

,  'cement.     It 

.i:C  course  of 

the  existence  of 


annot  be  a.ssimilated  to  the  admission 
und  by  his  own  admission,  and  is  not 
i  it  is  impossible  to  say  a  man  is  pre- 
?ntradicting  anything  any  person  has 
.  .  conduct  or  his  agreement,  merely  be- 
an agent  of  his.    If  any  fact,  material  to 
■"  ;ts  in  the  knowledge  of  an  agent,  it  is 
, ,,  not  by  his  mere  assertion..     Lord 
li  as  to       "  '  rrait  a  letter  by  an 

an  a^r^  •  principal ;  holding, 

■  rs  V.  Abram,  i 

.. -i.   .  .  cd  in  the  letter,  i 

I  t  to  have  proved  tliat  letter  was  writ- 

tter  was  •  <•'  ■     '  as  proof  of  the  con- 

nent,  tb  .-  properly  rejected. 

v.identally  m  Uauerman  v.  Radenius,  7 

Mere  is  a  reference  to  another,  Biggs 

AJr.  Justice  Buller  held  that 

-,  directed  to  be  delivered  to 

minst  the  principal.     The  counsel 

,lc   'that  the  contrary  had  been   fre- 

enyon  at  nisi  prius,  without  its  hav- 

;'hat   statement    does   not   appear   to 

ther  side ;  and  seems  to  have  been 

:  who  said  "that  was  not  the  p' 

i  or  determined;"  meaning  the  pu;   . 

.  d  in  evidence. 

this  question  can  hardly  be  said 

considered  what  the  concern  of 

■' -     "•   '       '-:!   are   the    facts 

Caunto   Baboo 

the    defendant. 

■\Tq-ement  of  his 

m   he   ■■ 

s<\  the  li 

vidence  it  does 

iic  negotiation  of 

c  this  purpose.    The 

^cir.  i.uant  nimself  to  have  made 


DECLARATIONS  AND  ADMISSIONS.  319 

the  agreement;  therefore,  any  representation  of  Caunto  Baboo  rela- 
tive to  an  agreement,  not  stated  to  have  been  made  by  him,  would 
not  be  the  statement  of  an  agent,  supposing  such  statement  was  to 
be  admitted  in  evidence.  The  plaintiff  fails  first  in  showing  Caunto 
Baboo  was  the  agent  of  the  defendant.  In  this  case,  such  a  fact  as 
Caunto  Baboo  is  represented  to  have  stated  is  matter  not  of  admis- 
sion, but  of  testimony.  A  man  cannot  admit  what  another  has  done, 
or  has  agreed  to  do;  but  he  must  prove  it.  When  put  upon  the 
proof  that  the  defendant  made  the  agreement,  it  is  absurd  to  say 
Caunto  Baboo  admitted  he  made  it.  In  truth  he  does  not  admit  that 
the  defendant  made  it.  But  suppose  Caunto  Baboo  distinctly  proved 
the  agent  of  the  defendant,  and  that  he  said  he  knew  the  defendant 
did  make  the  agreement  for  this  loan,  and  did  promise  and  undertake 
to  give  a  bond  for  the  money,  and  did  execute  a  bond,  but  gave  the 
bond,  not  to  the  plaintiff,  but  to  the  witness,  and  he  gave  it  back  to 
the  defendant,  who  undertook  to  calculate  the  interest,  and  to  give 
a  bond  for  the  whole;  all  this  would  be  no  evidence  whatsoever  of 
what  the  defendant  had  agreed  to  do,  or  had  done,  or  omitted  to  do ; 
and  without  evidence  of  his  agreement,  or  his  acts,  or  his  breach  of 
agreement,  it  is  utterly  impossible  to  support  this  bill. 
The  bill  was  dismissed.^ 


HARLAN,  J.,  IN  VICKSBURG  &  MERIDIAN  CO.  v.  O'BRIEN. 

1886.     Supreme  Court  of  the  United  States.     119  U.  S.  99. 

At  the  trial  below,  plaintiffs  introduced  one  Roach  as  a  witness, 
who,  during  his  examination,  was  asked  whether  he  did  not,  shortly 
after  the  accident,  have  a  conversation  with  the  engineer  having 
charge  of  defendant's  train  at  the  time  of  the  accident,  about  the 
rate  of  speed  at  which  the  train  was  moving  at  the  time.  To  that 
question  the  defendant  objected,  but  its  objection  was  overruled, 
and  the  witness  permitted  to  answer.  The  witness  had  previously 
stated  that,  on  examination  of  the  track  after  the  accident,  he  found 
a  cross-tie  or  cross-ties  under  the  broken  rail  in  a  decayed  condi- 
tion. His  answer  to  the  above  question  was :  "Between  ten  and 
thirty  minutes  after  the  accident  occurred,  I  had  such  a  conversa- 
tion with  Morgan  Herbert,  the  engineer  having  charge  of  the  loco- 
motive attached  to  the  train  at  the  time  of  the  accident,  and  he  told 
me  that  the  train  was  moving  at  the  rate  of  eighteen  miles  an  hour." 
The  defendant  renewed  its  objection  to  this  testimony  by  a  motion 
to  exclude  it  from  the  jury.     This  motion  was  denied,  and  an  ex- 

^  "What  an  agent  says  about  the  business  of  his  principal,  when  he  is  engaged 
in  doing  it,  may  always  be  heard,  not  as  mere  declarations,  but  as  explaining 
the  character  and  quality  of  the  act.  The  words  spoken  are  a  part  of  the 
thing  done."     Black,  J.,  in  Dick  v.  Cooper,  24  Pa.  St.  217,  221. 


320  LIABILITY   TO   THIRD   PERSONS. 

ception  taken.  As  bearing  upon  the  point  here  raised  it  may  be 
stated  that,  under  the  evidence,  it  became  material — apart  from  the 
issue  as  to  the  condition  of  the  track — to  inquire,  whether,  at  the 
time  of  the  accident  (which  occurred  at  a  place  on  the  line  where 
the  rails  in  the  track  were,  according-  to  some  of  the  proof,  ma- 
terially defective),  the  train  was  being  run  at  a  speed  exceeding 
fifteen  miles  an  hour.  In  this  view,  the  declaration  of  the  engi- 
neer may  have  had  a  decisive  influence  upon  the  res^ult  of  the  trial. 

There  can  be  no  dispute  as  to  the  general  rules  governing  the 
admissibility  of  the  declarations  of  an  agent  to  affect  the  principal. 
The  acts  of  an  agent,  within  the  scope  of  the  authority  delegated  to 
him,  are  deemed  the  acts  of  the  principal.  Whatever  he  does  in  the 
lawful  exercise  of  that  authority  is  imputable  to  the  principal,  and 
may  be  proven  without  calling  the  agent  as  a  witness.  So,  in  conse- 
quence of  the  relation  between  him  and  the  principal,  his  statement 
or  declaration  is,  under  some  circumstances,  regarded  as  of  the  na- 
ture of  original  evidence,  "being,"  says  Phillips,  "the  ultimate  fact 
to  be  proved,  and  not  an  admission  of  some  other  fact."  i  Phil. 
Ev.  381.  "But  it  must  be  remembered,"  says  Greenleaf,  "that  the 
admission  of  the  agent  cannot  always  be  assimilated  to  the  admis- 
sion of  the  principal.  The  party's  own  admission,  whenever  made, 
may  be  given  in  evidence  against  him ;  but  the  admission  or  declara- 
tion of  his  agent  binds  him  only  when  it  is  made  during  the  continu- 
ance of  the  agency  in  regard  to  a  transaction  then  depending,  et 
dum  fervet  opus.  It  is  because  it  is  a  verbal  act  and  part  of  the  res 
gestcB  that  it  is  admissible  at  all ;  and  therefore,  it  is  not  necessary  to 
call  the  agent  to  prove  it ;  but  wherever  what  he  did  is  admissible  in 
evidence,  there  it  is  competent  to  prove  what  he  said  about  the  act 
while  he  was  doing  it."  i  Greenleaf,  §  113.  This  court  had  occasion 
in  Packet  Co.  v.  Clough,  20  Wall.  540,  to  consider  this  question.  Re- 
ferring to  the  rule  as  stated  by  Mr.  Justice  Story  in  his  Treatise  on 
Agency,  §  134,  that  "where  the  acts  of  the  agent  will  bind  the  princi- 
pal, there  his  representations,  declarations,  and  admissions  respect- 
ing the  subject-matter  will  also  bind  him,  if  made  at  the  same  time, 
and  constituting  part  of  the  res  gestae,"  the  court,  speaking  by  Mr. 
Justice  Strong,  said :  "A  close  attention  to  this  rule,  which  is  of 
universal  acceptance,  will  solve  almost  every  difficulty.  But  an 
act  done  by  an  agent  cannot  be  varied,  qualified,  or  explained,  either 
by  his  declarations  which  amount  to  no  more  than  a  mere  narrative 
of  a  past  occurrence,  or  by  an  isolated  conversation  held,  or  an  iso- 
lated act  done,  at  a  later  period.  The  reason  is  that  the  agent  to  do 
the  act  is  not  authorized  to  narrate  what  he  had  done,  or  how  he 
had  done  it,  and  his  declaration  is  no  part  of  the  res  gestae." 

We  are  of  opinion  that  the  declaration  of  the  engineer  Her- 
bert to  the  witness  Roach  was  not  competent  against  the  defendant 
for  the  purpose  of  proving  the  rate  of  speed  at  which  the  train  was 
moving  at  the  time  of  the  accident.     It  is  true  that,  in  view  of  the 


•1  A  DM  IF  ■ 


■ect  to  that  matt  rluence 

vv'tii  '.-le  jUry.     Although  the  !e- 

grt-e    si!l>iect  to  his  control,  si  'id 

V.  with  it  authority  to  uiaivv.  vl. 

d  nt  time,  as  to  the  nian;i'^r  in  • 

or  at  any  rlpvignated  point  in  li' 
His  declaration,  after  the  accid  ...  ..... 

when  he  was  not  performing  the  dutie.-^ 
"*  ''^     moment  the  plaintiff  was  injured.  \Na.\-  i 
..n  miles  an  hour,  was  not  explanatory  ot 
..^  then  engaged.     It  did  not  accompany  the  ; 
.uries  in  question  arose.     It  was,  in  its  essence: 
of  a  past  occurrence,  not  a  part  of  the  res  ge  n 

on  or  representation,  in  the  course  of  conver       .    . 
not  then  pending,  and  in  respect  to  which  his  authc 
er  had  been  fully  exerted.    It  is  not  to  be  deemed  part  •  ; 
.'ta^,  simply  because  of  the  brief  period  interveping  betweei^ 
cident  and  the  making  of  the  declaration.     The  fact  remains 
1!  ■     ;,e  ncrtirrence  had  ended  when  the  declaration  in  question  was 
ineer  was  not  in  the  act  of  doing  anything  that 
t  it.    If  his  declaration  had  been  made  the  next 
ler  the  accident,  it  would  scarcely  be  claimed  that  it  was  admis- 
.:;!,..  vX'idence  against  the  company.   And  yet  the  circumstance  that  it 
was  made  between  ten  and  thirty  minutes — an  appreciable  period  of 
t'"-       '•"•'-  the  accident,  cannot,  ut  '  ' 

'.■■-}  the  general  rule.    If  t1; 
''ow  that '' 
. ,  would 
•es  iiesiu;,  without  callin^^ 
id  no  support  in  the  law  '  .  ..^ 

i^otigh  in  the  admission  of  the  at  declar  ; 

,u,...    ^.,.^,;,,,;j.  tj^gjj.  principals.      i.iiv>e  views 
iS  in  the  highest  courts  of  the  sta 

''"The  di;c!:iratJoi!«,  adnri.ss'.oi. 

is 


'  ticulariy  Nelson  Morris  & 

-1 — Reinharp 


320 


Li.\]Vtl,I 


'\  taken.     As  be: 
......  that,  under  tli  •  ' 

issue  as  to  the  cc 
time  of  the  acr-  ' 
the  rails  in  tl 
terially  defect) 
fifteen  miles    ^ 
neer  may  ! 
There  .  : 
admis^ 
The  &' 
him,  a 


pa  I,  ciieie 
inq:  the  su 

Justice  Si 
universal 


t:  'lot  auti 

h„ ..,  and  hi 

We  are  of  opi.i 
'  ort  to  the  witnes- 
:  >r  the  purpose  of 
:  at  the  timr 


;t  may  be 

.  from  the 

icT,  at  the 

line  where 

'      r   .   c  proof,  ma- 

at  a  speed  exceeding 

eclaration  of  the  engi- 

;  the  result  of  the  trial. 

al  rules  governing  the 

to  affect  the  principal. 

.  .:,c  authority  delegated  to 

1.    Whatever  he  does  in  the 

utable  to  the  principal,  and 

-  as  a  witness.    So,  in  conse- 

'.  his  statement 

1  as  of  the  na- 

Uie  ultimate  fact 

■ler  fact."     i  Phil.' 

red,"  says  Greenleaf,  "that  the 

>  .  !; .  '.c---- in  lifted  to  the  admis- 

u,  whenever  made, 

■ion  or  declara- 

ng  the  continu- 

'. .  ,oii  Liien  depending,  et 

i  act  and  part  of  the  res 

'.  there  tore,  it  is  not  necessary  to 

'.  '.er  what  he  did  is  admissible  in 

Tove  what  he  said  about  the  act 

■-.  §  113.  This  court  had  occasion 

;o.  to  consider  this  question.  Re- 

'ice  Story  in  his  Treatise  on 

■  e  agent  will  bind  the  princi- 

■  ns,  and  admissions  respect- 
I,  if  made  at  the  .same  time. 

the  court,  speaking  by  M 
,  ,-   H,;o  ,-„^e^  which  is  - 

ulty.      But   a. 

'  .'ued,  eith' 

f  narrati'. 

or  an  i  > 

I gent  to 

tie,  or  how  ■ 

ncer  !]■ 

iiie  defend" 

11  the  train  ^^ 

,  in  view  of  t 


DECLARATIONS  AND  ADMISSIONS.  32I 

engineer's  experience  and  position,  his  statements  under  oath,  as  a 
witness,  in  respect  to  that  matter,  if  credited,  would  have  influence 
with  the  jury.  Although  the  speed  of  the  train  was,  in  some  de- 
gree, subject  to  his  control,  still  his  authority,  in  that  respect,  did 
not  carry  with  it  authority  to  make  declarations,  or  admissions  at 
a  subsequent  time,  as  to  the  manner  in  which,  on  any  particular  trip, 
or  at  any  designated  point  in  his  route,  he  had  performed  his  duty. 
His  declaration,  after  the  accident  had  become  a  completed  fact,  and 
when  he  was  not  performing  the  duties  of  engineer,  that  the  train, 
at  the  moment  the  plaintiff  was  injured,  was  being  run  at  the  rate 
eighteen  miles  an  hour,  was  not  explanatory  of  anything  in  which 
he  was  then  engaged.  It  did  not  accompany  the  act  from  which 
the  injuries  in  question  arose.  It  was,  in  its  essence,  the  mere  nar- 
ration of  a  past  occurrence,  not  a  part  of  the  res  gestae — simply  an 
assertion  or  representation,  in  the  course  of  conversation,  as  to  a 
matter  not  then  pending,  and  in  respect  to  which  his  authority  as 
engineer  had  been  fully  exerted.  It  is  not  to  be  deemed  part  of  the 
res  gestae,  simply  because  of  the  brief  period  intervening  between 
the  accident  and  the  making  of  the  declaration.  The  fact  remains 
that  the  occurrence  had  ended  when  the  declaration  in  question  was 
made,  and  the  engineer  was  not  in  the  act  of  doing  anything  that 
could  possibly  affect  it.  If  his  declaration  had  been  made  the  next 
day  after  the  accident,  it  would  scarcely  be  claimed  that  it  was  admis- 
sible evidence  against  the  company.  And  yet  the  circumstance  that  it 
was  made  between  ten  and  thirty  minutes — an  appreciable  period  of 
time — after  the  accident,  cannot,  upon  principle,  make  this  case  an 
exception  to  the  general  rule.  If  the  contrary  view  should  be  main- 
tained, it  would  follow  that  the  declarations  of  the  engineer,  if  favor- 
able to  the  company,  would  have  been  admissible  in  its  behalf  as  part 
of  the  res  gestcc,  without  calling  him  as  a  witness — a  proposition  that 
will  find  no  support  in  the  law  of  evidence.  The  cases  have  gone  far 
enough  in  the  admission  of  the  subsequent  declarations  of  agents  as 
evidence  against  their  principals.  These  views  are  fully  sustained 
by  adjudications  in  the  highest  courts  of  the  states.^ 

y'The  declarations,  admissions,  or  acts  of  an  agent  are  evidence  against  his 
principal,  only  when  they  are  made  as  to  a  business  matter  within  the  scope 
of  his  agency,  and  which  is  being  transacted  at  the  time.  A  person  who  is 
appointed  an  agent  for  a  specified  and  limited  purpose  has  no  right  to  exceed 
his  authority,  and  if  he  does,  his  acts  or  declarations  are  not  binding  upon  his 
principal,  unless  subsequently  ratified."  Buskirk,  J.,  in  Rowell  v.  Klein,  44 
Ind.  290,  293.    See  Pa.  Co.  v.  Bridge  Co.,  170  111.  645. 

"When  the  owner  of  property  previously  acquired  intrusts  it  to  an  agent 
solely  to  operate,  he  does  not  thereby  give  him  authority  to  declare  away  his 
right  or  title  or  to  make  competent  evidence  against  it  by  his  mere  declara- 
tions." Hook,  Cir.  J.,  in  State  of  Missouri  v.  Hencken,  174  Fed.  624,  626. 
See  particularly  Caldwell  v.  Nelson  Morris  &  Co.,  125  La.  302. 

21 — Reinhard  Cases. 


322  LIABILITY   TO  THIRD   PERSONS. 

McENTYRE  v.  LEVI  COTTON  MILLS. 
1903.     Supreme  Court  of  North  Carolina.     132  N.  C.  598. 

Montgomery,  J. — The  plaintiff  brought  this  action  in  the  court 
of  a  justice  of  the  peace  to  recover  of  the  defendant  $8.35  for  work 
and  labor  done  in  the  defendant's  cotton  mill.  Judgment  was  ren- 
dered against  the  defendant  for  the  amount  claimed  by  the  plaintiff. 
The  defendant's  defense  was  that  by  a  rule  of  the  company  the 
usual  and  customary  pay  day  of  the  defendant  for  work  in  the  fac- 
tory was  on  the  14th  of  April,  and  as  the  action  was  commenced 
before  the  pay  day,  i.  e,  before  the  amount  was  due,  the  plaintiff 
could  not  recover.  On  the  appeal  of  the  defendant,  the  jury 
answered  the  issue,  "Is  the  defendant  indebted  to  the  plaintiff  and 
if  so  in  what  amount?  Yes,  $8.35."  In  the  superior  court  a  wit- 
ness, Wood,  testified  that  he  heard  M.  Levi,  president  of  the  cotton 
mills,  and  R.  H.  Smith,  the  superintendent,  testify  in  the  justice's 
court.  Wood  was  then  permitted  to  testify  over  the  defendant's  ob- 
jection that  he  heard  Smith  say,  in  the  trial  before  the  justice,  that 
he.  Smith,  had  discharged  the  plaintiff  from  service  at  the  mill; 
that  Levi  in  the  justice's  court  did  not  deny  owing  the  amount  sued 
for,  but  that  the  amount  was  not  due  until  the  14th  of  April.  The 
evidence  of  Wood  was  not  competent.  When  the  defendant  com- 
pany filed  its  answer  to  the  claim  of  the  plaintiff,  the  power  of  the 
president  or  superintendent  to  make  any  further  admission  or  dec- 
laration which  could  bind  the  company  in  reference  to  the  cause  of 
action,  had  passed.  The  admissions  or  declarations  of  the  agent  are 
received  in  evidence  against  the  principal,  not  as  admissions  or 
declarations  merely,  but  as  parts  of  the  res  gcstcc;  hence,  only  such 
as  accompany  the  transaction  in  which  the  agent  acted  can  be 
proved ;  what  the  agent  said  at  a  subsequent  time  is  inadmissible. 
Rice  on  Evidence,  446.  Whatever  therefore  the  agent  does,  in  the 
lawful  prosecution  of  that  business,  is  the  act  of  the  principal  whom 
he  represents.  And  (Story)  "Where  the  acts  of  the  agent  will  bind 
the  principal,  then  his  representations,  declarations  and  admissions 
respecting  the  subject-matter  will  also  bind  him,  if  made  at  the  same 
time  and  constituting  part  of  the  res  gestcs."  Greenleaf  on  Ev., 
§  184  c;  Branch  v,  R.  Co.,  88  N.  C.  573;  Craven  v.  Russell,  118 
N.  C.  564.  It  makes  no  difference  that  the  agents  Levi  and  Smith 
were  officers  of  a  corporation.  The  same  rule  applies.  Smith  v. 
Melton,  68  N.  C.  108;  Rumbough  v.  Imp.  Co.,  112  N.  C.  751;  34 
Am.  St.  528. 

New  trial. ^ 

^  Compare  111.  Cent.  R.  R.  Co.  v.  Tronstine,  64  Miss.  834. 

"How  far  the  statements  of  the  agent  are  binding  upon  and  competent  to 
be  given  against  the  company,  and  to  what  extent  they  are  part  of  the  res 
gestcc,  depends  upon  the  circumstances  of  each  particular  case."  Sherwood, 
J.,  in  Keyser  v.  Chicago,  etc.,  Ry.  Co.,  66  Mich.  390,  395. 


:i  1. — ^What  Acts  Can  be  Ratifien. 

■j-j .\vs.\vnnn  i.  tn  "■' 


07  i' 


here  a  contr.  .  on  the  ground  of  public 

I  -..atute,  as  the  '    i'r>^r-.>  ;.   .-    ,,   reason  iC  u,.^ 

•ation  affected  wr  on  v.  Marshall, 

:44.    Ce' '   '  ■':-  coccnii:  ^oni  a  cor'  id 

of  frau;  'oartv,  is  inc^p^ble  c 

not  the  , 
■y's  Eq.  ^        ,    ^..  _       ..^  .  — 

rs  276;  2  Parsons  on  Contracts  780.  but  however  this  may 
.  must  now  consider  Dur)^^'  '  "^r.-rin^,-. -.-]-,  -.^  .-.-.^r .■'.-;  k^ 
11  V.  Chapin,  8  Wright  v  i 

contract  tai  ^   ' 
r  3  new  com 


•ry  01  tne  i' 
or  undr'' 
t*  receiv 

which  mav 


any  pa 

ick  his 
V  of  thf 


ly  void;  and  by  the 

,<.;-..,        •  '"^rmance 

■  party  : 

'-  bound 

-  of  it  r  ■ 


-3^'    iC,    atx'.i 

.\  mere 


.Zii^  '^c. 


iie  dete 
usual  and 
tory  was 
before  '' 
coitlci 


iiie  court 

"  for  work 

IS  ren- 

^  'dintiff. 

by  a  rule  of  the  company  the 

.   -.,e  defendant  for  work  in  the  fac- 

and  as  the  action  was  commenced 

".c  amount  was  due,  the  plaintiff 

al    of    the   defendant,    the    jury 

'.".ff  and 

.  a  wit- 

•ii  of  tiie  cotton 

n  the  justice's 

.  testily  defendant's  ob- 

■"■"  ^'-■'  'he  justice,  that 

e  at  the  mill; 

nt  sued 

..    The 

It  com- 

of  the 

nake  ai  ■  admission  or  dec- 

.    '1  ,n-  fp  to  the  cause  r.: 

■i  the  agent  . 

cib  admissions  ui 

•;  hence,  only  such 


§  184  c; 

N.  C.  564.    I. 


',   ilie  agent  uocs,  in  tiie 
-.  .     :t  of  the  principal  whom 
the  acts  of  the  agent  will  bi    '■ 
•'    -'f^'-i'-ttons  and  admissic 
:f  made  at  the  s.r 
.-cnleaf  on  t.' 
R'lpsell,   >  ' 


and  com  J 

are  part  of 

'ar  case."     Sh 


CHAPTER  VIIL 

RATIFICATION. 

Section  1. — What  Acts  Can  be  Ratified. 

SHARSWOOD,  J.,  IN  NEGLEY  et  al  v.  LINDSAY. 
1870.     Supreme  Court  of  Pennsylvania.    67  Pa.  St.  217, 

Of  course,  where  a  contract  is  void  on  the  ground  of  pubHc  pohcy, 
or  against  a  statute,  as  the  usury  law,  there  is  every  reason  to  hold 
the  confirmation  affected  with  the  original  taint :  Shelton  v.  Marshall, 
16  Texas  344.  Certain  it  is,  that  the  doctrine  that  a  contract,  void 
on  account  of  fraud  practised  on  the  party,  is  incapable  of  confirma- 
tion, is  not  the  generally  received  doctrine  of  the  elementary  writers : 
I  Story's  Eq.  Jur.  345 ;  Addison  on  Contracts  273 ;  i  Sugden  on 
Vendors  276;  2  Parsons  on  Contracts  780.  But  however  this  may 
be,  we  must  now  consider  Duncan  v.  McCullough  as  overruled  by 
Pearsoll  v.  Chapin,  8  Wright  9,  in  which  it  was  expressly  decided 
that  a  contract  tainted  with  fraud  may  be  confirmed  or  ratified 
without  a  new  contract  founded  on  a  new  consideration.  It  is  there 
said  that  he  who  knowingly  accepts  and  retains  any  benefit  under 
such  a  contract,  or  who  uses  the  property  acquired  as  his  own,  after 
the  discovery  of  the  fraud,  or  who  does  any  positive  act  forgiving 
the  fraud,  or  unduly  delays  claiming  back  his  property  or  giving 
up  what  he  received,  affirms  the  validity  of  the  contract;  and  de- 
cisions in  the  courts  of  our  sister  states  are  cited  in  support  of  these 
instances.  To  which  may  be  added  James  v.  Emery,  40  N.  Ham. 
348;  Mason  v.  Bovet,  i  Denio  69;  The  Mattiawan  Co.  v.  Bentley, 
13  Barbour  641 ;  Wheaton  v.  Baker,  14  id.  594. 

"Ratification,"  says  Chief  Justice  Lowrie,  "is  in  general  the  adop- 
tion of  a  previously  formed  contract,  notwithstanding  a  view  that 
rendered  it  relatively  void ;  and  by  the  very  nature  of  the  act  of 
ratification,  confirmation  or  affirmance  (all  these  terms  are  in  use 
to  express  the  same  thing),  the  party  confirming  becomes  a  party 
to  the  contract,  he  that  was  not  bound,  becomes  bound  by  it,  and 
entitled  to  all  the  proper  benefits  of  it ;  he  accepts  the  consideration 
of  the  contract  as  a  sufficient  consideration  for  adopting  it,  and 
usually  this  is  quite  enough  to  support  the  ratification.     A  mere 

323 


324  RATIFICATION. 

ratification  cannot,  of  course,  correct  any  defect  in  the  terms  of  the 
contract.  If  it  is  in  its  very  terms  invalid  for  want  of  consideration 
or  for  any  other  defect,  a  mere  ratification  can  add  nothing  to  its 
binding  force."  These  principles  are  only  a  recurrence  to  those  ad- 
vanced by  Lord  Chancellor  Hardwicke  in  Chesterfield  v.  Janssen,  2 
Ves.  125,  I  Atk.  354,  the  result  of  which  was,  that  if  the  original 
contract  be  illegal  or  usurious,  no  subsequent  agreement  or  confir- 
mation of  the  party  can  give  it  validity.  But  if  it  be  merely  against 
conscience,  then,  if  the  party,  being  fully  informed  of  all  the  circum- 
stances of  it,  and  of  the  objections  to  it,  in  his  own  words,  "with 
his  eyes  open,"  voluntarily  confirms  it,  he  thereby  bars  himself  of 
that  relief,  which  he  might  otherwise  have  had  in  equity :  i  Fon- 
blanque's  Eq.  b.  i,  Ch.  2,  §  13,  n.  Upon  the  principles  thus  estab- 
lished we  discover  no  error  in  the  rulings  of  the  learned  judge  be- 
low upon  this  subject.^ 


TOWNSHIP  OF  TAYMOUTH  v.  KOEHLER. 
1876.     Supreme  Court  of  Michigan.     35  Mich.  22. 

Marston^  J. — Koehler  brought  an  action  of  assumpsit  against  the 
township  to  recover  the  value  of  certain  iron,  furnished  to  be  used 
in  the  construction  of  a  bridge,  under  a  written  agreement  made 
with  one  of  the  commissioners  of  highways  of  said  township. 

Several  questions  were  raised  and  discussed  relating,  first,  to  the 
authority  of  said  commissioners  of  highways  to  authorize  the  making 
of  the  contract  in  question,  which  it  was  said  depended  upon  the 
regularity  and  validity  of  a  special  meeting  of  the  people  of  the 
town  called  to  vote  moneys  to  build  this  bridge ;  second,  as  to 
whether  the  board  had  authorized  the  making  of  the  contract  in 
question ;  and,  third,  whether  there  was  or  could  be  a  ratification 
by  the  board  of  the  acts  and  contracts  of  the  commissioner  who 
made  the  contract  under  which  the  iron  was  furnished,  which  would 
render  the  township  liable,  even  if  the  contract  was  not  valid  in  the 
first  instance."     *     *     * 

3.  As  to  ratification,  there  may  in  certain  cases  be  a  ratification 
by  the  corporation  of  an  unauthorized  contract.  It  must,  however, 
in  such  cases  appear  that  the  contract  was  one  which  could  in  the 
first  instance  have  been  legally  entered  into  by  the  corporate  authori- 
ties.    And  while  there  may  be  cases  where  knowledge  that  work 

^  An  act  void  by  reason  of  illegality  or  otherwise  cannot  be  ratified.  Boutelle 
V.  Melendy,  19  N.  H.  196;  Sanford  v.  Johnson,  24  Minn.  172;  Macfarland  v. 
Heim,  127  Mo.  327. 

"  A  portion  of  the  opinion  dealing  with  the  first  and  second  questions  stated 
by  the  court  is  omitted. 


.1  lor  the.  use  ana  h 
jontract.   ar.H   the  re- 
c  oi  the  wc  jii ; 

t  one  of  that  ole 

vnship  made  use  oi  the 

.  hway  would  not  '••  '  - 

f  this  were  so,  ti^ 
or  on  a  public  ' 
for  the  same  or 

use  could  be  coiijuucj  lato  an  a 
>on  V.  School  District,  32  N.  H.  i ; 
385,  et  seq.    Ag^ain,  the  proper  parties  to 
...^  who  could  in  the  first  ^i.^-  r,re  have  leg:.; 
«ct.    The  people  of  the  t  are  given  m 

*.  au.;^  „„.^:...j^  Jj^  |.j^g  yg^  ^,,   ^|,  ,  |»j.j(jge  cannot  lor  li- 
on; neither  could  the  members  of  the  be 
it  u  the  boarcs  wlnit-  work  was  in  progress,  or  after  il  ...o 
^    rr^e^  ei^-^-er  acc.:rt_iing  to  notice  previously  given,  or  a') 
+her  without  such  notice,  and  with  a  knowl- 
'      -    -  :i  done,  approved  of  and  ratified  it,  we  think 

wnship  would  be  bound  by  such  action.    Argenti  v.  San  Fran- 
ify  Cal.  255. 

The  question  still  remains,  was  the  contract  in  this  case  one 
'  <:.  board  could  have  authorized  or  ratified  withc' 
-•  under  §  752,  et  seq.     1  T'^^'Ttp.  I  ..  ^  t?o^  -ov 
re  over  any  stream  in-  i,- 

"is  state  has  been  inu.  --e 

<et  or  from  any  other  cause,  it  shall  be 


nissioners  of  such  to^  -  ^'^     on  appl- 

:   all  convenient  dis,                 repair  • 

•  ■'  may  rc<                       the  per 

'tr,  or  h\                       !itract  i'; 

:w,  pro\ 

■--rs 

onal  Qy 

in- 

venience  requjrt 

it  such 

to  be  rebuilt,  aii..   ...  -...w. 

-  be 

1  not  in  any  one  year  exce^ 

■TS. 

er  provisions  giving  the  con  ' 

nd 

e  of  bridges  over  streams  h\ 

out 

fer  to  them  in    i 

.   ill  this 

within  the  gent  : 

rd.     A 

to  such  a  contrci 

is- 

.  assume  that  the 

,-.- 

one.     So  long,  the; 

,                 *\-.^f        jj-        jg       QJ^g        Jj^. 

1.'  i;li  -I 

^ize  one  of 

r  into, 

party  is  r; 

ntrar>% 

•tion  cannot,  of 
. —  .ict.    If  it  is  in  i''^ 
or  for  any  other  c 
binding  force," 
vanced  by  Lor 
■Vs.  125,  I  A: 
•  tntract  be  ill 


stance 
his  e^ 
that  r 

b' 


eci  in  the  terms  of  the 

'-  V.;-,;  r  fJ  >  ,Mi-;i.-ieration. 

to  its 

uiose  ad- 

lanssen,  2 

ij.  tliai  ii  the  original 

)t  agreement  or  confir- 

■       .'-  be  merely  against 

I   ;    ::.  :d  of  all  the  circum- 

it,  in  his  ovvn  words,  "with 

..,  he  thereby  bars  himself  of 

o'e  have  had  in  equity:    i  Fon- 

Upr^v]  the  principles  thus  estab- 

:  ■:-   >f  the  learned  judge  be- 


OEHLER. 
Vlich.  22. 


1  stance. - 


Aiid   wli 

'  Ai'  act  void  ' 
V.  Mtl<:ndy.  19 
Heiin,  127  Mo. 

"  A  portion  of 
hy  the  cour 


it  an  action  of  assumpsit  against  the 

f  certain  iron,  furnished  to  be  used 

.  under  a  written  agreement  made 

)i  highways  of  said  township. 

\  and  discussed  relating,  first,  to  the 

>f  highways  to  authorize  the  making 

'  -^^  it  was  said  depended  upon  the 

I  meeting  of  the  people  of  the 

"'     '  '     '      Ige;  second,  as  to 

of  the  contract  in 

was  or  could  be  a  ratification 

'  I'acts  cf  the  commissioner  who 

ished,  which  would 

•    '••■■*•  valid  in  tb^ 

..■  '.'■:\i.i'  .;  a  ratificat; 

ed  cont  Must,  howe^ 

)uld  in  ; 

-ce  authf. 
>wicdge  that  wc . 


'■.tit  and  second  questions  sta. 


WHAT   ACTS    CAN   BE   RATIFIED.  325 

is  being  performed  for  the  use  and  benefit  of  a  corporation  under 
an  unauthorized  contract,  and  the  corporation  afterwards  accepts 
and  makes  use  of  the  work  done,  would  amount  to  a  ratification ; 
yet  this  is  not  one  of  that  class  of  cases.  The  fact  that  the  people 
of  the  township  made  use  of  the  bridge  when  traveling  upon  the 
public  highway  would  not  be  an  acceptance,  and  cannot  be  so  con- 
strued. If  this  were  so,  then  a  party  placing  an  unauthorized  struc- 
ture over  or  on  a  public  highway  could  thus  compel  the  people  to 
either  pay  for  the  same  or  abandon  the  use  of  the  highway  entirely, 
lest  such  use  could  be  construed  into  an  acceptance  and  liabiHty  to 
pay.  Wilson  v.  School  District,  32  N.  H.  118;  see  i  Dillon  on  Mun. 
Corp.,  §§  385,  et  seq.  Again,  the  proper  parties  to  ratify  a  contract 
are  those  who  could  in  the  first  instance  have  legally  made  such  a 
contract.  The  people  of  the  township  are  given  no  such  authority, 
so  that  their  action  in  the  use  of  the  bridge  cannot  for  this  reason 
be  held  a  ratification ;  neither  could  the  members  of  the  board  sev- 
erally. But  if  the  board,  while  work  was  in  progress,  or  after  it  was 
completed,  met,  either  according  to  notice  previously  given,  or  all 
the  members  got  together  without  such  notice,  and  with  a  knowl- 
edge of  what  had  been  done,  approved  of  and  ratified  it,  we  think 
the  township  would  be  bound  by  such  action.  Argenti  v.  San  Fran- 
cisco, 16  Cal.  255. 

4.  The  question  still  remains,  was  the  contract  in  this  case  one 
which  the  board  could  have  authorized  or  ratified  without  a  vote  of 
the  people  under  §  752,  et  seq.  i  Comp.  L.,  §  1306  provides  that  if 
any  bridge  over  any  stream  intersected  by  a  highway  in  any  town- 
ship in  this  state  has  been  injured  or  destroyed  by  the  occurrence 
of  a  freshet  or  from  any  other  cause,  it  shall  be  the  duty  of  the  high- 
way commissioners  of  such  township,  on  application,  etc.,  to  pro- 
ceed with  all  convenient  dispatch  to  repair  or  reconstruct  such 
bridge,  as  the  case  may  require,  under  the  personal  supervision  of 
one  of  their  number,  or  by  letting  a  contract  therefor,  under  exist- 
ing provisions  of  law,  provided  that  a  majority  of  the  commissioners 
shall,  after  a  personal  examination,  determine  that  the  public  in- 
terests and  convenience  require  such  repairs  to  be  made,  or  that  such 
bridge  ought  to  be  rebuilt,  and  provided  also  that  the  sum  to  be 
expended  shall  not  in  any  one  year  exceed  one  thousand  dollars. 
There  are  other  provisions  giving  the  commissioners  the  care  and 
superintendence  of  bridges  over  streams  intersecting  highways,  but 
it  is  unnecessary  to  refer  to  them  in  detail.  The  contract  in  this 
case  is  one  apparently  within  the  general  power  of  the  board.  A 
third  party  entering  into  such  a  contract  with  one  of  the  commis- 
sioners has  a  right  to  assume  that  the  contract  is,  in  fact  as  in  ap- 
pearance, a  proper  one.  So  long,  therefore,  as  the  contract  does 
not  upon  its  face  show  that  it  is  one  beyond  the  power  of  the  board 
to  enter  into,  or  to  authorize  one  of  their  number  to  enter  into, 
and  the  other  contracting  party   is   not  notified   to  the   contrary, 


326  RATIFICATION. 

but  goes  on  and  in  good  faith  furnishes  the  materials,  he  will  be 
entitled  to  recover,  if  it  appears,  as  already  stated,  that  the  com- 
missioner was  authorized  by  the  board  to  make  such  a  contract, 
or  that  his  action  was  afterwards  ratified  by  the  board.  For  all  ma- 
terials furnished  under  any  such  contract,  the  statute  points  out  a 
method  of  payment. 

As  the  rulings  of  the  court  below  were  inconsistent  with  what 
has  been  here  said,  the  judgment  must  be  reversed,  with  costs,  and 
a  new  trial  granted. 

The  other  justices  concurred. 


STATE  OF  WISCONSIN  v.  TORINUS  and  Others. 
1879.     Supreme  Court  of  Minnesota.     26  Minn.  i. 

The  state  of  Wisconsin  brought  this  action,  in  the  district  court 
for  Washington  county,  as  endorsee  of  a  promissory  note  made  by 
defendants  to  the  order  of  one  Harriman.  The  averments  of  the 
complaint  are,  in  substance,  as  follows : 

On  March  3,  1869,  the  legislature  of  Wisconsin  passed  an  act 
authorizing  the  Governor  to  appoint  one  or  more  agents  whose 
duty  it  should  be  to  preserve  and  protect  the  timber  growing  on  the 
lands  theretofore  granted  by  congress  to  the  state  to  aid  in  the  con- 
struction of  railroads,  and  to  seize,  in  the  name  and  on  behalf  of 
the  state,  all  logs  and  timber  that  should  be  cut  or  carried  away 
from  such  lands  without  lawful  authority,  and  to  sell  the  same  at 
public  auction  to  the  highest  bidder  for  cash,  the  money  to  be  imme- 
diately paid  into  the  state  treasury.  From  May,  1869,  until  1874, 
Harriman  was  the  duly  appointed  agent  of  the  plaintiff,  under  this 
act,  and  in  the  summer  of  1873  he  received  a  large  quantity  of  pine 
saw  logs,  which  the  defendants,  during  the  previous  winter,  had 
wrongfully  cut  on  certain  of  the  lands  described  in  the  act  and  be- 
longing to  plaintiff,  and  had  driven  to  the  St.  Croix  boom.  The  logs 
thus  seized  Harriman  advertised  for  sale  at  public  auction,  for  cash, 
to  the  highest  bidder,  and  at  the  sale,  on  July  25,  1873,  they  were 
struck  off  and  delivered  to  the  defendants,  who  at  once  converted 
them  to  their  own  use,  and  have  never  paid  the  plaintiff  anything 
therefor. 

On  December  23,  1873,  the  defendants,  in  consideration  of  such 
sale  and  delivery,  made  the  note  in  suit,  whereby  they  promised  to 
pay  to  Harriman  or  oraer  $8,799.66,  on  May  i,  1874,  with  interest 
at  ten  per  cent,  per  annum,  which  note,  before  maturity,  was  en- 
dorsed and  delivered  by  Harriman  to  the  plaintiff. 

On  February  15,   1878,  the  legislature  of  Wisconsin  passed  an 


I 


he  present  suit 


and  the  note,  . 
'TitU  and  void,  ai  _ 
by  act  of  the  k 


.;,  mg-  ana  C-  ^rnnian 

and  the  n>  hereof, 

valid  h'c  had 

;ty  to  se:  'ni- 

; ,.    y  after  the  passage  of 

/v  gu.icral  demurrer  •  ■  ''■'■f 

acting  for  the  judge 

pealed. 

In.  a  former  suit  betwef  r 
of  1878,  th- 
an had  no  -r 

IS  unauthorized  and  void 
ion  than  the  sale,  wa*^  .' !•=<•: 
ratified  and  made  g 
.:.    See  24  Minn.  332. 
r.,  T. — In  a  former  action  between  these  partic 
nted  to  this  court,  on  appeal  therein,  as  to  tl; 
:•  in  controversy  in  this  action.    Upon  the  facts. 
..  It  was  held  invalid  for  want  of  consideration,  for  the  reason 
'vas  given  solely  upon  an  unauthorized  sale  of  logs  from 
)  defendants,  made  by  an  agent  of  the  former,  by  which 
..    uf  interest  whatever  in  the  property  was  transferred:    24 
332,     Since  then,  and  before  the  commencement  of  this  ac- 
etate, by  legislative  r  '5  duly  and  fully  ratified 
ed  the  act  "of  its  age  in  making  the  sale  snd 
:  note,  and  the  quest                         'e  us  re) 
rhis  ratification.     It                          hat  it 
•se,  because  a  contract  void  as  prohil  !■ 
-ide  good  by  a  subsequent  statute.     ^  - 
A  contracts  made  absolutely  void  an 
[  their  illegal  charact            '    'S  being 
./>s  no  application  to                -  of  this 
:,  or  takr 
..     The  •: 
it  to  the  defendants  on  ihe  sau                              s  prop- 
i.'>'.igh  unauthorized  and  im,                                '■•   the 
:  him  his  authority  was                                        '  a 
.iimjral  nature,  or  tainted  w  :                                      :*";' 
:er,  nof  was  it  prohibited  as  s 
' -h  he  acted  was  not   '' 
re  of  a  pf^wpr  rs{  nttf 
-tate  a  - 
.  ud  wh;   _ 

the  sale  ot  his 


KAMIL:      \ 


iHu  goes  on  and  in  go 
entitled  to  recover,  if 
missioner  was  aut 
or  that  his  actir-^^  ^ 
terials  furnishc 
method  of  pay 

As  the  rulir 
has  been  }■ 
a  new  trial 

The  otli- 


he  will  be 

.1   tlie  com- 

:■  such  a  contract, 

..  uoard.    For  all  ma- 

le  statute  points  out  a 

\v  were  inconsistent  with  what 
jst  be  reversed,  with  costs,  and 


TOP  TNT  TS  AND  Others. 


li/  Mix: 


26  Minn,  i. 


The  st3i 


vht  this  action,  in  the  district  court 
jrsee  of  -'  '^'^^^'  ■''<sory  note  made  by 
'  Harrin-  averments  of  the 


t]\,';i. 

public  : 

d" 

1; 

>  ■■      ^"g's,    .•  -• 
tully  cut 
'  ■:i.^;iiiy  to  plaii 
thus  seized  Ha 
to  tho  hip': 


pay  to  Harriman  < 
at  ten  per  cent.  p< 
dorsed  and  delivet 
On  Februar 


•sin  passed  an  act 
i.t  one  01    more  agents  whose 
■  itect  the  timber  growing  on  the 
igress  to  the  state  to  aid  in  the  con- 
ize,  in  the  name  and  on  behalf  of. 
iiat  should  be  cut  or  carried  away 
;;^thority,  and  to  sell  the  same  at 
cor  cash,  the  money  to  be  imme- 
From  May,  1869,  until  1874, 
■■^ent  of  the  plaintiff,  under  this 
■ed  a  large  quantity  of  pi: 
'he  previous  winter,  h" 
:bed  in  the  act  and  1' 
'"--•■'•  ^vx)m.  The  log;. 
I  tion,  for  cash, 
they  wf  ;< 
.  convert< 
J  LUe  plaintiff  anythi 

)n  of  sii;  ■ 
,  i-romised  ^-j 
4.  with  interest 
maturity,  was  en 

Wisconsin  passed  ■ 


WHAT  ACTS    CAN    BE   RATIFIED.  32/ 

act  expressly  ratifying  and  confirming  the  sale  made  by  Harriman 
to  the  defendants,  and  the  note  taken  by  him  on  account  thereof, 
and  making  the  same  valid  from  the  beginning  as  fully  as  if  he  had 
always  had  full  authority  to  sell  on  credit  and  to  take  the  note.  Im- 
mediately after  the  passage  of  this  act  the  present  suit  was  brought. 

A  general  demurrer  to  the  complaint  was  overruled  by  Brill,  J., 
acting  for  the  judge  of  the  first  district,  and  the  defendants  ap- 
pealed. 

In  a  former  suit  between  the  same  parties,  on  the  same  note,  prior 
to  the  act  of  1878,  the  defendants  had  judgment  on  the  ground  that 
as  Harriman  had  no  authority  to  sell  except  for  cash,  the  sale  made 
by  him  was  unauthorized  and  void,  and  the  note,  having  no  other 
consideration  than  the  sale,  was  also  null  and  void,  and  that  the  sale 
could  be  ratified  and  made  good,  only  by  act  of  the  legislature  of 
Wisconsin.     See  24  Minn.  332. 

Cornell,  J. — In  a  former  action  between  these  parties,  the  ques- 
tion was  presented  to  this  court,  on  appeal  therein,  as  to  the  valid- 
ity of  the  note  in  controversy  in  this  action.  Upon  the  facts  therein 
stated,  it  was  held  invalid  for  want  of  consideration,  for  the  reason 
that  it  was  given  solely  upon  an  unauthorized  sale  of  logs  from 
plaintiff  to  defendants,  made  by  an  agent  of  the  former,  by  which 
no  title  or  interest  whatever  in  the  property  was  transferred:  24 
Minn.  332.  Since  then,  and  before  the  commencement  of  this  ac- 
tion, the  state,  by  legislative  enactment,  has  duly  and  fully  ratified 
and  adopted  the  act  of  its  agent  Harriman  in  making  the  sale  and 
taking  the  note,  and  the  question  now  before  us  relates  to  the  legal 
effect  of  this  ratification.  It  is  objected  that  it  is  ineifective  for 
any  purpose,  because  a  contract  void  as  prohibited  by  statute  can- 
not be  made  good  by  a  subsequent  statute.  While  this  is  true  as 
to  acts  and  contracts  made  absolutely  void  and  prohibited  by  law 
because  of  their  illegal  character,  and  as  being  contra  bonos  mores, 
the  rule  has  no  application  to  the  facts  of  this  case.  Giving  credit 
on  the  sale  of  logs,  or  taking  notes  in  payment,  is  not  prohibited  by 
any  law  or  statute.  The  act  of  Harriman  as  the  agent  of  the  state 
in  giving  credit  to  the  defendants  on  the  sale  of  his  principal's  prop- 
erty to  them,  though  unauthorized  and  impliedly  prohibited  by  the 
statute  which  gave  him  his  authority  was  not  in  itself  an  act  of  a 
wrongful  or  immoral  nature,  or  tainted  with  any  vice  of  illegality 
of  that  character,  nor  was  it  prohibited  as  such  by  any  statute.  The 
statute  under  which  he  acted  was  not  directed  to  that  end.  It  was 
rather  in  the  nature  of  a  power  of  attorney,  which  conferred  upon 
the  agents  of  the  state  a  specific  and  limited  authority  in  reference 
to  certain  matters,  and  which  defined  particularly  the  extent  of  such 
authority.  In  making  the  sale  of  his  principal's  property  on  time, 
and  taking  a  note  for  the  purchase  money,  the  agent,  Harriman,  ex- 
ceeded his  delegated  authority,  and,  for  that  reason  alone,  his  act 
was  an  invalid  one.     It  was  competent,  however,  for  the  state  as 


328  RATIFICATION. 

principal  to  make  it  good  by  a  legislative  enactment,  adopting  it 
as  its  own ;  for  it  could  have  authorized  it  in  the  first  instance,  and 
whatever  it  can  do  or  direct  to  be  done  originally  it  can  subse- 
quently, and,  when  done,  lawfully  ratify  and  adopt,  with  the  same 
effect  as  though  it  had  been  properly  done  under  a  previous  author- 
ity. That  the  state  might,  through  its  legislature,  in  the  absence 
of  any  prohibition  in  its  fundamental  law,  have  authorized  Harri- 
man  as  its  agent,  in  the  first  place,  to  make  the  very  sale  he  did 
admits  of  no  doubt.  The  proprietary  rights  of  a  state  are  as  absolute 
and  unqualified  as  those  of  an  individual.  It  may,  in  the  absence 
of  any  self-imposed  restrictions  in  its  constitution,  sell  and  dispose 
of  its  property  upon  its  own  terms  and  conditions  for  cash  or  upon 
credit;  and  it  may  also  take,  hold,  and  enforce  notes  and  obliga- 
tions received  from  the  purchasers  of  its  property  the  same  as  in- 
dividuals can.  But  as  the  legislative  department  is  the  only  one 
that  represents  the  state  in  respect  to  such  rights,  it  alone  can  exer- 
cise the  power  necessary  to  the  enjoyment  and  protection  of  those 
rights,  by  the  enactment  of  statutes  for  that  purpose.  In  the  case 
before  us,  the  state  has  duly  ratified  the  acts  of  its  agent  in  making 
the  sale  to  the  defendants,  so  that  the  title  to  the  property  which 
they  purchased,  the  possession  of  which  they  still  hold,  has  become 
perfect,  and  they  cannot  longer  object  that  the  note  they  gave  is 
without  consideration.^  *  *  *- 
Order  afftrmed. 


SHISLER  V.  VANDIKE. 
1880.     Supreme  Court  of  Pennsylvania.     92  Pa.  St.  447. 

Assumpsit  by  George  H.  Vandike  and  Theophilus  G.  Vandike, 
trading  as  George  H.  Vandike  &  Co.,  against  John  A.  Shisler,  as 
endorser  of  a  promissory  note,  dated  July  2d,  1875,  at  four  months, 
for  $1,500,  drawn  by  Catherine  Shisler  to  the  order  of  George  A. 
Shisler,  and  endorsed  by  George  A.  Shisler,  Charles  Shisler  and 
John  A.  Shisler. 

At  the  trial  it  appeared,  both  by  the  evidence  of  plaintiffs  and  of 
George  A.  Shisler,  who  was  called  for  the  defendant,  that  the  note 
in  suit  was  given  by  George  A.  Shisler  to  pay  an  indebtedness  of 
said  George  to  plaintiffs.  The  latter  testified  that  they  had  sent  for 
John  A.  Shisler  and  showed  him  the  note,  and  that  he  denied  that 
it  was  his  endorsement,  but  said  that  he  had  authorized  his  brother 

^  A  portion  of  the  opinion  dealing  with  the  character  of  the  plaintiff's  title  is 
omitted. 
*  See  also  State  v.  Executor  of  Joel  Buttles,  3  Ohio  St.  309. 


':iTii,  ana   Viuic    ;  '■'<-'   r.nufi 

declared  that  b'  hut  John 

:  alesman  oi  \  b- 

view,  and  ht  <t 

'.  aign  the  note,  i  .  their  >   , 

he  detendant  te,s..,,  'i!  1  'i' 

ze  anyone  to  do  so  ■ 
he  had  authorizf  ' 
led  for  the  det 

Mr.  Vandike's  to  j^cc^  lae  note ;  tiic> 
this  interview ;  1  did  not  endorse  the 
c;  never  told  Vandike  that  I  was  authori. 
•  thought  they  were  genuine  signatures.    A 
s  store,  heard  my  brother  John  distinctly  state 
.It  he  authorized  the  signature  to  that  note." 
'  ndant,  inter  alia,  submitted  the  following  point 
1  the  name  of  John  V.  Shisler  was  endorsed  by  ? 
'  OMt  his  authority,  and  that  he  subsequently  witho; 

on,  ratified  or  confirmed  it,  your  verdict  must  be  foi 

vi  declined  to  affirm  this  point,  and  in  the  general  charge, 

>.,  said,  "that  the  theory  of  the  plaintiffs  was  that  George 

the  note  as  his  brother's  agent,  either  with  his  previous  au- 

r  a  subsequent  ratification,  and  if  the  jury  believe  that  view 

ence,  the  act  was  capable  of  ratification/' 

n  also  charged;  "I  i:  ju  that  you  '\ 

of  consideration,  tV  e  being  thi  ':-. 

-te  in  satisfaction  ot," 

lict  was  for  the  ,. s.     After  judf^-.v 

^vrit,  and  alleged  that  the  court  erred 
I'oint,  and  in  the  portion  of  the  charge 
S.  Dickson  and  Nathan  H.  Sharpli 

ft,   in   saying  that   the   plaintiff?; 

of  a  debt,  took  the  question  o 

A-tr.  asked  to  charge,  in  substanc 

■gery,  and  the  ratification  or  n 

;■  was  without  any  new  con-'  .i.jjIs 

er.     That  this  proposition  k  -  dis- 

h  V.  County  of   ^^  "  "ih 

have  simply  affi 
-,  tor  defendants  in  e 
ition  that  the  doctrii 

■mmand,"  does  not  ai  1- 

'  ■  -'ty  :  McHugh  v.  v  .  e 

.^ported  by  any  deci^^i-  1. 

!non  til  based  upon  three  ca-  .  J.ic-unl- 


principal  to  make 
as  its  own ;  for  it  c 
whatever  it  can  cl- 
qiiently,  and,  whet: 
effect  as  though  it 
ity.     That  the     '  ' 
of  any  prohibi 
rnan  as  its 
admits  of  ; 
and  U!' 
of  an} 
of  its  1 

ti 


mg  it 
.     t,  and 
done  originally  it  can  subse- 
:itify  and  ad''^''^    -vifli  the  same 
done  under  is  author- 

its  legislate,  w,  i.i  ilie  absence 
al  law.  have  authorized  Harri- 
'  '    very  sale  he  did 
Late  are  as  absolute 
-  '  li.     k  may,  in  the  absence 

•nstitution,  sell  and  dispose 
lis  and  conditions  for  cash  or  upon 
'  >ld,  and  enforce  notes  and  obltga- 
crs  of  its  property  the  same  as  in-' 
slative  department  is  the  only  one 
ci  to  such  rights,  it  alone  can  exer- 
enjoyment  ;  ction  of  those 

utes  for  thai  .In  the  case 

tied  the  acts  ot  us  agent  in  making 
hat  the  titir  i.)  the  property  which 
f  whicli  "  hold,  has  become 


AN  DIKE. 


lo.- 


92  Pa.  St.  447. 


Assumpsit  r. 
trading  as  G^oi  . 
endorser  of  a  j', 
for  $1,500,  dnv. 
vShi?Ier,  and  endor 
l:'hn    ^.  Shisler. 

rial  it  apt' 

Shisler, 

s  given  I 

■y^.-i  '  .■  .  ■!  ^t  to  plairii.;.; 

John  A.  Shisler  and  si 
it  was  his  endorsement. 

'  A  portion  of  the  opinioi: 
oniiited. 
'  See  also  .State  v.  Execui 


_  and  Theophilus  G.  Vandike, 

3.,  against  John  A.  Shisler,  as 

'   1/  2d,  1875,  at  four  months, 

10  the  order  of  George  A. 

''harles  Shisler  an 

ffs  and  of 
:.t  the  note 
idebtedness  < 
•V  had  sent  f- 
le  denied  ti;; 
his  brotl; 

.  M-ic  plaintiff's 

;    100. 


WHAT  ACTS    CAN    BE   RATIFIED.  329 

to  endorse  for  him,  and  that  he  considered  himself  Hable  under 
that  name,  and  declared  that  his  name  was  not  John  A.,  but  John 
V.  Shisler.  A  salesman  of  Vandike  &  Co.  testified  that  he  was  pres- 
ent at  this  interview,  and  heard  one  of  the  Shisler  brothers  say  that 
they  did  not  sign  the  note,  but  authorized  their  signatures  to  be  put 
thereon.  The  detendant  testified  that  he  did  not  endorse  the  note 
nor  authorize  anyone  to  do  so  for  him,  and  that  he  had  never  ad- 
mitted that  he  had  authorized  George  to  endorse  for  him.  George 
Shisler,  called  for  the  defendant,  testified :  "I  brought  my  two 
brothers  to  Mr.  Vandike's  to  get  the  note;  they  both  knew  of  this 
note  before  this  interview ;  I  did  not  endorse  the  names  on  the  back 
of  the  note ;  never  told  Vandike  that  I  was  authorized  to  endorse 
the  note ;  I  thought  they  were  genuine  signatures.  At  the  interview 
in  Vandike's  store,  heard  my  brother  John  distinctly  state  to  George 
Vandike  that  he  authorized  the  signature  to  that  note." 

The  defendant,  inter  alia,  submitted  the  following  point :  "If  you 
believe  that  the  name  of  John  V.  Shisler  was  endorsed  by  another 
person  without  his  authority,  and  that  he  subsequently  without  any 
new  consideration,  ratified  or  confirmed  it,  your  verdict  must  be  for 
the  defendant." 

The  court  declined  to  afiirm  this  point,  and  in  the  general  charge, 
inter  alia,  said,  "that  the  theory  of  the  plaintiffs  was  that  George 
signed  the  note  as  his  brother's  agent,  either  with  his  previous  au- 
thority or  a  subsequent  ratification,  and  if  the  jury  believe  that  view 
of  the  evidence,  the  act  was  capable  of  ratification." 

The  court  also  charged ;  "I  instruct  you  that  you  may  disregard 
the  matter  of  consideration,  the  evidence  being  that  the  plaintiffs 
took  the  note  in  satisfaction  of  the  debt." 

The  verdict  was  for  the  plaintiffs.  After  judgment,  defendant 
took  this  writ,  and  alleged  that  the  court  erred  in  the  answer  to 
the  above  point,  and  in  the  portion  of  the  charge  noted. 

Edwin  S.  Dickson  and  Nathan  H.  Sharpless,  for  plaintiffs  in 
error. 

The  court,  in  saying  that  the  plaintiffs  received  the  note  in 
satisfaction  of  a  debt,  took  the  question  of  fact  from  the  jury. 
The  court  was  asked  to  charge,  in  substance,  that  if  the  endorse- 
ment was  a  forgery,  and  the  ratification  or  confirmation  relied  on 
by  the  plaintiffs  was  without  any  new  consideration,  the  plaintiffs 
could  not  recover.  That  this  proposition  is  sound  in  law  is  dis- 
tinctly ruled  in  McHugh  v.  County  of  Schuylkill,  17  P.  F.  Smith 
391.     The  court  should  have  simply  affirmed  defendant's  point. 

P.  F.  Rothermel,  for  defendants  in  error. 

To  sustain  the  position  that  the  doctrine,  "a  subsequent  ratification 
is  equal  to  a  prior  command,"  does  not  apply  in  this  case,  the  defend- 
ants cite  a  single  authority :  ]\IcHugh  v.  County  of  Schuylkill,  a  case 
standing  by  itself,  unsupported  by  any  decision,  and  since  overruled. 
The  opinion  therein  was  based  upon  three  cases :  Duncan  v.  Mc-Cul- 


330  RATIFICATION. 

lough,  4  S.  &  R.  483;  Chamberlain  v.  McClurg,  8  W.  &  S.  31,  36, 
and  Goepp's  Appeal,  3  Harris  428,  all  of  which  were  expressly- 
overruled  in  Negley  v.  Lindsay,  17  P.  F.  Smith  217,  a  case  decided 
a  few  months  previous  to  McHugh  v.  County  of  Schuylkill,  and 
reported  in  the  same  volume  of  reports. 

In  Negley  v.  Lindsay,  supra,  it  was  held,  "Where  a  contract  is 
void  on  the  ground  of  public  policy,  or  against  a  statute,  its  con- 
firmation is  affected  with  the  original  taint."  "Where  a  contract 
is  void  on  account  of  fraud  practised  on  the  party  it  may  be  con- 
firmed or  ratified  without  a  new  contract,  founded  on  a  new  con- 
sideration." 

Mr.  Justice  Gordon  delivered  the  opinion  of  the  court,  January 
26,  1880. 

There  was  no  error  committed  by  the  court  in  saying  to  the  jury, 
"I  instruct  you  that  you  may  disregard  the  matter  of  consideration, 
the  evidence  being  that  the  plaintiffs  took  the  note  in  satisfaction 
of  the  debt." 

There  seems  to  have  been  no  dispute  about  this  on  the  trial ;  the 
whole  evidence  most  clearly  proves  that  the  note  was  intended  to 
apply  upon  the  indebtedness  of  George  A.  Shisler  to  the  plaintiffs, 
and  for  that  purpose  it  was  endorsed,  if  indeed  it  were  endorsed  at 
all.  It  was  not  a  pledge  of  the  note  as  collateral  security  for  a  pre- 
cedent indebtedness,  but  was  given  to  apply  in  payment  of  such  in- 
debtedness, and  hence  was  similar  to  a  check  drawn  for  that  pur- 
pose. 

The  remaining  question  is,  if  George  A.  Shisler,  or  anyone  else, 
fraudulently  endorsed  the  name  of  John  V.  Shisler,  would  an  after 
ratification  render  such  endorsement  good  and  available  in  the  hands 
of  good-faith  endorsers?  The  court  below  thought  it  would,  and 
so  instructed  the  jury.  This  instruction  seems  to  us  in  the  first 
place,  wrong  in  this,  that  we  can  find  no  evidence  to  warrant  it. 
There  was  testimony,  and  abundance  of  it,  that  John  had  authorized 
the  putting  of  his  name  upon  the  paper,  but  none  whatever  that  he 
had  subsequently  ratified  the  endorsement,  either  b}^  word  or  deed. 

The  question,  however,  remains,  could  the  forged  endorsement, 
conceding  it  to  be  such,  be  ratified  and  thus  made  good?  This 
question  must  be  answered  in  the  negative,  if  we  accept  as  author- 
ity the  case  of  McHugh  v.  Schuylkill  County. 

This  case  is  in  point ;  there,  as  here,  the  question  was  whether 
there  could  be  an  after  ratification  of  a  forged  obligation,  and  it 
was  held  that  there  could  be  no  such  ratification.  It  is  true,  the 
dicta  of  this  case,  going  as  they  do  beyond  the  point  ruled,  would 
indicate  that  no  contract,  vitiated  by  fraud  of  any  kind,  is  the  sub- 
ject of  subsequent  ratification.  But  this  cannot  be  sustained,  as  it 
is  opposed  to  those  decisions  now  regarded  as  law,  notably.  Pear- 
soil  V.  Chapin,  8  Wright  9,  and  Negley  v.  Lindsay,  17  P.  F.  Smith 
217.     The  distinction  between  these  cases  seems  to  be  this,  where 


CTS    CAN    V,E 


.e  pera: 

' 

'.  faith  a. 

-^,  and  nothir 

^S  ■ 

inc. 

:CcCl,    , 

-.1.    .cd,  in  the  cas 

contract 

be  illegal,  or  voir 

■t 

■-•-'    -■■ 

'•'"ication  will  help  : 

>n  was  forged,  it 

Wc 

ity: 

,  U:. 

also  illegal,  , 

and 

of 

an 

a  V.  Gonter,  6  Wrigiit  14^,  the  que 

..J,  executed  under  the  authority  of  a  i^    _, 

tomey,  was  the  subject  of  ratification,  and  it  was  held  1 
But  here  tiiere  was  no  forgery  of  the  mortgage  itself,  ..  ., 
executed  under  a  supposed  power.     Mr.  Justice  Strong,  \\ 
":■  lion,  says:   "'It  is  hardly  accurate  to  speak  of  ra:;*  • 

istrument.     It  may  be  adopted,  but  adoption   doc-i 
tnd  vaHdate  p/ior  acts.    If  the  letter  of  attorney  was 
;,  no  act  of  IVlrs.  Gonter  in  1859,  after  her  return 
pe,  could  make  it  efficient  from  its  date.    But  she  could 
mortgage,  for  that  was  executed  in  her  name  by  a  pro- 
it,  acting  under  a  real  or  pretended  authority."     Now, 
riy  understand  what  is  here  said,  it  amounts  to  this :  the 
executed  without  a   fraudulent  intent,   by  a  professed 
1    supposed   pover,    was    susceptible 
jther  hand,  the  forged  leUer  of  attor' 
such  ratification.     This,  of  course,  j 
both  the  agent  and  n->  ,.r;<v.o-ee,  other 
;  have  been  a  fraud  ice  no  r 

ihan  was  the  power.  >  ^ussible  thi 

the  mortgagee,  for  ii  is  very  clear  ; 

notwit': 
''^^,  be  'i 
Ct   Wltil   Uiat  <Ji 

tore  con?'.''.\^  •■•. 

lien,  that  as^                ^  evidence,  .  A, 

ratification  v.'.^u..  ...;\-e  no  pla^^  e 

instrument,  it  should  have 

'lifted,  it  amounted  to  t'  i: 

t.     This  sustains  the  f'  Js 

mcnt  :••'■    -^ed  and  a  n>?'v  ^warded.' 


-'p's   Ap 

a  few   iiionti^ 
reported  in  tb 
In  Negley   . 
void  on  the  t 
firniatioij    ■ 
is  void  r- 


\   b.  31,  30, 

^-   expressly 

decided 

-LiU,  and 

M as  j.vii,     WfKic  a  contract  i^ 
v.'br  against  a  statute,  its  con- 
'  taint."     "Where  a  contract 
on  the  party  it  may  be  con- 
contract,  founded  on  a  new  con- 

. .;.    I.  V     iv;nn  ;i  of  the  court,  January 

Led  by  the  court  in  saying  to  the  jury, 

'■--  - •  the  matter  of  consideration, 

ook  the  note  in  satisfaction 


There  w: 


.an-  ir 
ion  must 

be 

e  case  0^' 

^■T, 

;s  case 
•Id  l)t 
that 

th^ 

ject 

of  s. 

is  oppose 
soil  V.  Cj 

0  dispute  aL  n  the  trial;  the 

•,vas  intended  to . 

!C>  the  plaintiffs, 

dorsed,  it  were  endorsed  at 

'  note  as  ^  .;,.... ;ai  security  for  a  pre- 

iven  to  apply  in  payment  of  such  in- 

'■•'■hr  'cck  drawn  for  that  pur- 

.  .     ;x;  A.  Shisler,  or  anyone  else, 
;       ,  n  V.  Shisler,  would  an  after 
-i  id  available  in  the  hands 
.1   ,    ..  V  thought  it  would,  and 
I  ruction  seems  to  us  in  the  first 
'  find  no  evidence  to  warrant  it. 
ce  of  it,  that  John  had  authorized 
:;,  but  none  whatever  that  ' 
ent,  either  by  word  or  dc 
aid  the  forged  endorsem.: 
^.<'   tlias  made  good?     T 
ccept  as  autl  ' 

.as  whet' 
tion,  ant 
is  true,      • 
uled,  w<. 
.  is  the  s  .• 
-Ui^tained,  as  it 
.  N,  notably,  Pcar- 
iiay,  17  P.  F.  Sr^ 


WHAT  ACTS    CAN    BE  RATIFIED.  331 

the  fraud  is  of  such  a  character  as  to  involve  a  crime,  the  ratifica- 
tion of  the  act  from  which  it  springs  is  opposed  to  pubHc  poHcy, 
and  hence,  cannot  be  permitted,  but  where  the  transaction  is  con- 
trary only  to  good  faith  and  fair  dealings;  where  it  affects  indi- 
vidual interests,  and  nothing  else,  ratification  is  allowable.  It  is 
indeed,  conceded,  in  the  cases  last  above  cited,  that  if  the  original 
contract  be  illegal,  or  void  for  want  of  consideration,  no  subse- 
quent ratification  will  help  it.  If,  however,  the  endorsement  under 
consideration  was  forged,  it  was  not  only  void  for  want  of  author- 
ity, but  it  was  also  illegal,  and  so,  comes  under  the  condemnation 
of  all  authority. 

In  Garrett  v.  Gonter,  6  Wright  143,  the  question  was,  whether 
a  mortgage,  executed  under  the  authority  of  a  forged  power  of  at- 
torney, was  the  subject  of  ratification,  and  it  was  held  that  it  was. 
But  here  there  was  no  forgery  of  the  mortgage  itself,  for  it  was 
executed  under  a  supposed  power.  Mr.  Justice  Strong,  who  de- 
livered the  opinion,  says:  "It  is  hardly  accurate  to  speak  of  ratify- 
ing a  forged  instrument.  It  may  be  adopted,  but  adoption  does 
not  relate  back  and  validate  prior  acts.  If  the  letter  of  attorney  was 
forged  in  1854,  no  act  of  Mrs.  Gonter  in  1859,  after  her  return 
from  Europe,  could  make  it  efficient  from  its  date.  But  she  could 
confirm  the  mortgage,  for  that  was  executed  in  her  name  by  a  pro- 
fessed agent,  acting  under  a  real  or  pretended  authority."  Now, 
if  we  properly  understand  what  is  here  said,  it  amounts  to  this :  the 
mortgage,  executed  without  a  fraudulent  intent,  by  a  professed 
agent,  under  a  supposed  power,  was  susceptible  of  ratification, 
whilst,  on  the  other  hand,  the  forged  letter  of  attorney  was  not  sus- 
ceptible of  such  ratification.  This,  of  course,  presupposes  the  in- 
nocency  of  both  the  agent  and  mortgagee,  otherwise  the  mortgage 
itself  would  have  been  a  fraud,  and  hence  no  more  the  subject  of 
ratification  than  was  the  power.  It  is  possible  this  case  was  strained 
in  favor  of  the  mortgagee,  for  it  is  very  clear  from  the  evidence, 
the  verdict  of  the  jury  to  the  contrary,  notwithstanding,  that  the 
power  of  attorney  was  genuine.  However,  be  this  as  it  may,  this 
case  does  not  conflict  with  that  of  McHugh  v.  Schuylkill  County, 
and  we  must  therefore  consider  the  latter  as  of  binding  authority. 
We  conclude,  then,  that  as,  from  the  evidence,  in  the  case  in  hand, 
the  doctrine  of  ratification  could  have  no  place,  except  as  operative 
upon  a  forged  instrument,  it  should  have  been  wholly  excluded, 
since  being  admitted,  it  amounted  to  the  ratification  of  an  illegal 
and  criminal  act.  This  sustains  the  fourth  and  fifth  assignments 
of  error. 

Judgment  reversed  and  a  new  venire  awarded.^ 

^Accord:   Brook  v.  Hook,  L.  R.  6  Ex.  89. 

In  Woodruff  v.  IMunroe,  33  Md.  146,  it  was  held  that  one,  whose  signature 
as  maker  of  a  note  was  forged,  would  be  estopped  from  setting  up  the  forgery 
as  a  defense,  when  he  had  induced  a  holder  in  due  course  to  take  the  note  by 


332  RATIFICATION. 

HENRY  ET  AL.  V.  HEEB. 
1887.     Supreme  Court  of  Indiana.     114  Ind.  275. 

Mitchell,,  C.  J. — This  was  a  suit  by  Nicholas  Heeb  against 
Henry  Heeb,  John  F.  Schonert,  and  James  D.  Henry,  to  recover  the 
amount  of  two  promissory  notes  signed  by  Heeb  and  Schonert,  who 
were  partners,  as  principals,  and  by  James  D.  Henry,  as  surety. 

The  controversy  is  between  the  plaintiff  and  the  appellant  Henry^ 
and  relates  exclusively  to  the  note  described  in  the  second  para- 
graph of  the  complaint,  the  execution  of  which  Henry  denied  under 
oath.  To  the  denial  of  the  latter,  the  plaintiff  replied,  in  substance, 
that  the  defendant,  after  having  obtained  full  knowledge  that  the 
plaintiff  held  the  note  in  controversy,  ratified  and  confirmed  the 
same,  and  promised  to  pay  it,  and  accepted  a  chattel  mortgage  cov- 
ering the  partnership  property  of  Heeb  and  Schonert,  the  principal 
debtors,  as  indemnity  against  any  liability  which  might  exist  on 
account  of  his  having  become  surety  on  the  note.  This  was  held 
to  be  a  sufficient  reply. 

While  there  was  much  evidence  tending  to  prove  that  the  sig- 
nature of  Henry,  as  it  appeared  on  the  note,  was  his  genuine  sig- 
nature, there  was  also  evidence  tending  to  prove  that  it  was  not 
genuine.  The  extent  to  which  the  evidence  went  in  that  regard  was 
to  affirm  the  genuineness  of  the  signature  on  the  one  hand  and  to 
deny  it  on  the  other.  There  was  no  evidence  tending  to  incrimi- 
nate any  particular  person,  or  directly  pointing  to  any  one  as  having 
perpetrated  the  crime  of  forgery  in  respect  to  the  appellant's  sig- 
nature. Besides,  there  was  evidence  which  tended  to  show  that  one 
of  the  principal  makers  of  the  note  had,  with  the  appellant's  consent, 
filled  out  blank  notes,  which  had  been  previously  signed  by  the 
latter  as  surety,  and  upon  which  the  firm  subsequently  obtained 
loans  of  money. 

The  appellant  testified  that  he  neither  signed  nor  authorized  any- 
one to  sign  his  name  to  the  note,  "to  the  best  of  his  knowledge." 

There  was  some  evidence  tending  to  show  that  Henry  recognized 
the  validity  of  the  note,  and  his  liability  to  pay  it,  and  that  he  had 
knowledge  of  the  execution  of  a  chattel  mortgage  by  Schonert  in 
the  firm  name  to  secure  him  and  other  creditors  of  the  firm  and 
that  the  note  in  suit  was  one  of  the  claims  mentioned  in  the  mort- 
gage as  having  been  signed  by  Henry  as  surety  for  Heeb  and 
Schonert. 

Relevant  to  the  issue  made  by  the  plea  of  non  est  factum,  and 
the  reply  thereto,  and  the  evidence  pertaining  to  that  feature  of 
the  case,  the  court  instructed  the  jury,  in  substance,  that  if  the 

representing  that  the  signature  was  genuine.     See  dictum  to  same  effect  in 
Workman  v.  Wright,  S3  Ohio  St.  405. 


<,f    : ,  iher  or  not  he  executed  the  note, 
d  promised  to  pay  it,  h 
The  judgment  was  fav 
n  the  demurrer  to  t 
ons  are  complamed 
judgment.     The  reply  and  the  instf'  .-sent  su! 

>-,,.,     viestion. 

s  not  appear  that  tb>  appellant  in- 

to change  his  posit5uii  m  ;:i<v    '  "      "  "■rit  in  :-. 

he  surrendered  any  right  or  b'  't.     The 

t  of  estoppel  in  the  cai-i  "  either  u. 

,,,^  i'.e  instruction  of  the  cou 

The  appciJant  contends  that  a  persf.  name  has  b<. 

to  a  note  cannot  ratify  or  adopt  the    .:  act,  so  as  u 

bound,  unless  facts  have  intervened  which  create  an  estoppt 
.._^  .)..!„  j^jj^  from  setting  up,  as  a  defense,  that  his  signature  : 
There  appears  to  be  an  irreconcilable  conflict  in  tt^. 
'  e  courts  of  last  resort  on  thi-  ' '     -  in  Vveil- 

ickson,   121    Mass.   157,  the  court  of 

(Usetts,  following  its  earlier  iieid  LiiaL  one  whose 

had   been   forged  to   a  pr  ,    note,   who  yet,   with 

1.  i  all  the  circumstances,  and  intending  to  be  bound  by 

dged  the  signature,  and  thus  assumed  the  note  t--  '^'^ 
,'und  to  the  same  extent  as  if  the  note  had  been  r 
inally,  without  regard  to  w'     ' 
ounted  to  an  estoppel  in  pais, 
^   .liica  447;   Bartlet  v.   Tucker,    104  Alasa.    3.- 
.' '  '.    Td  tlie  same  effect  is  Hefner  v.  Vandolah,  ;: 
) ;  Fitzpatrick  \ .  School  Commissioners,  7  Hi 

■■:•     yfs, 

:;  other  cases  wl 

■'    'a  forge  '  y  oc  rcj 

itioa  tl)  of  the  ; 

e   upon   liic   pioUiise  or  adr 

•  cared  on  th?^  no^^e,  or  that  t' 

'le  consi  for  which    .  oeen 

efore  e.^i..,  ;  ,..  .0  deny  the  -f  his 

er  decisions  depend  upon,  pr  \  dis- 

eases involvhig  the  doctrine  -     r 

instruments  purelv.     Casco   ' 


-n.  95  J  Livings  v.  \\ 

I ;;  N.  Y.  577 ;  Cro 

len  Co.,  L.  R.  t 


liid.  275. 


Mitchell, 

'    '-V  Heeb, 

nt  of  tw 


and  reia 


Nicholas  Heeb  against 

«  ^  D.  Henry,  to  recover  the 

by  Heeb  and  Schonert,  who 

oes  D.  Henry,  as  surety. 

>'dfi  and  the  appellant  Henry, 

described  in  the  second  para- 

on  of  which  Henry  denied  under 

he  plaintiff  replied,  in  substance, 

Stained  full  knowledge  that  the 

ersy.  ratified  and  confirmed  the 

Vi  rrjortgage  cov- 

.  t,  the  principal 

aiiy    liabiiity   which   might  exist  on 

surety  on  the  note.     This  was  held 


ciic-  ....V....,,   .     .  -'ve  that  the  sig- 
:d  on  the  note,  was  his  genuine  sig- 
•r   t      '  — ove  that  it  was  not 

I  in  that  regard  was 
ht  signa.tu!t  on  tlie  one  hand  and  to 
was  no  evidence  tending  to  incrimi- 
lirectly  pointing  to  any  one  as  having 
■'■\   in  respect  to  the  appellant's  sif-- 

je  Avhich  tended  to  show  that 
.-•.t  had,  with  the  appellant's  conS' 
had  been  previously   signed  by  1 
•1   i'i     n^/n   subsequently  obtainea 


Mavnia; 


'  nor  authorized  <ir 
of  his  knowledi; 
show  ihat  Henry  recogni. 
y  to  pay  it,  and  that  he  ) 
.cl  mortgage  by  Schonert 
'  of  the  firm  : 

ed  in  the  m 
for  Heeb  and 


the  case,  the  ecu 


of  non  est  factum,  and 

nimr  [n  that  feature  of 

'xe,  that  if  the 


cnting  tl. 
nan  v.  V 


to  same  effec* 


WHAT   ACTS    CAN    BE   RATIFIED.  333 

appellant,  after  having  obtained  full  knowledge  upon  the  subject 
of  whether  or  not  he  executed  the  note,  ratified  and  confirmed  the 
same  and  promised  to  pay  it,  he  would  be  liable  for  the  amount 
thereof.  The  judgment  was  favorable  to  the  plaintiff  below.  The 
ruling  on  the  demurrer  to  the  reply,  and  the  giving  of  the  above 
instructions  are  complained  of  as  a  cause  for  the  reversal  of  the 
judginent.  The  reply  and  the  instruction  present  substantially  the 
same  question. 

It  does  not  appear  that  the  promise  of  the  appellant  induced  the 
plaintiff  to  change  his  position  in  any  manner,  or  that  in  reliance 
thereon  he  surrendered  any  right  or  benefit  whatever.  There  is 
therefore,  no  element  of  estoppel  in  the  case  as  presented  either  in 
the  pleading  or  in  the  instruction  of  the  court. 

The  appellant  contends  that  a  person  whose  name  has  been  forged 
to  a  note  cannot  ratify  or  adopt  the  criminal  act,  so  as  to  become 
bound,  unless  facts  have  intervened  which  create  an  estoppel  and 
preclude  him  from  setting  up,  as  a  defense,  that  his  signature  is  not 
genuine.  There  appears  to  be  an  irreconcilable  conflict  in  the  de- 
cisions of  the  courts  of  last  resort  on  this  question.  Thus  in  Well- 
ington V.  Jackson,  121  Mass.  157,  the  supreme  judicial  court  of 
Massachusetts,  following  its  earlier  decisions,  held  that  one  whose 
signature  had  been  forged  to  a  promisory  note,  who  yet,  with 
knowledge  of  all  the  circumstances,  and  intending  to  be  bound  by 
it,  acknowledged  the  signature,  and  thus  assumed  the  note  as  his 
own,  was  bound  to  the  same  extent  as  if  the  note  had  been  signed 
by  him  originally,  without  regard  to  whether  or  not  his  acknowl- 
edgment amounted  to  an  estoppel  in  pais;  Greenfield  Bank  v.  Crafts, 
4  Allen  447;  Bartlet  v.  Tucker,  104  Mass.  336  (341);  6  Am. 
240.  To  the  same  effect  is  Hefner  v.  Vandolah,  62  111  483,  14  Am. 
106;  Fitzpatrick  v.  School  Commissioners,  7  Hump.  224,  46  Am. 
Dec.  y6. 

There  are  other  cases  which,  while  seeming  to  lend  support  to 
the  doctrine  that  a  forged  signature  may  be  ratified,  nevertheless  turn 
upon  the  proposition  that  the  holder  of  the  note  had  in  some  way 
acted  in  reliance  upon  the  promise  or  admission  of  the  person 
whose  name  appeared  on  the  note,  or  that  the  latter  had  received 
or  participated  in  the  consideration  for  which  the  note  had  been 
given,  and  was  therefore  estopped  to  deny  the  genuineness  of  his 
signature.  Still  other  decisions  depend  upon  principles  which  dis- 
tinguish them  from  cases  involving  the  doctrine  of  ratification  or 
adoption  of  forged  instruments  purely.  Casco  Bank  v.  Keene,  53 
Me.  103;  Forsyth  v.  Day,  46  id.  176;  Corser  v.  Paul,  41  N.  H.  25, 
77  Am.  Dec.  753 ;  Woodruff  v.  Monroe,  33  Md.  146 ;  Union  Bank  v. 
Middlebrook,  33  Conn.  95  ;  Livings  v.  Wiler,  32  111.  387 ;  Commer- 
cial Bank  v.  Warren,  15  N.  Y.  577;  Crout  v.  DeWolf,  i  R.  I.  393; 
McKenzie  v.  British  Linen  Co.,  L.  R.  6  App.  Cas.  82 ;  Forsyth  v. 
Banta,  5  Bush.  548. 


334  RATIFICATION. 

It  is  a  well  established  rule  of  law  that  if  one,  not  assuming  to  act 
for  himself,  does  an  act  for  or  in  the  name  of  another  upon  an  as- 
sumption of  authority  to  act  as  the  agent  of  the  latter,  even  though 
without  any  precedent  authority  whatever,  if  the  person  in  whose 
name  the  act  was  performed  subsequently  ratifies  or  adopts  what 
has  been  so  done,  the  ratification  relates  back  and  supplies  original 
authority  to  do  the  act.  In  such  a  case  the  principal  is  bound  to 
the  same  extent  as  if  the  act  had  been  done  in  the  first  instance 
by  his  previous  authority,  and  this  is  so  whether  the  act  be  detri- 
mental to  the  principal  or  to  his  advantage,  or  whether  it  be  founded 
in  tort  or  contract.  The  reason  is,  that  there  was  an  open  as- 
sumption to  act  as  the  agent  of  the  party  who  subsequently  adopted 
the  act.  The  agency  having  been  knowingly  ratified,  the  ratifica- 
tion becomes  equivalent  to  original  authority.  Wilson  v.  Tumman, 
6  Man.  &  V.  236;  Smith  v.  Tramel,  68  Iowa  488.  So,  if  a  contract 
be  voidable  on  account  of  fraud  practised  on  one  party,  or  if  for 
any  reason  it  might  be  avoided,  yet  if  the  party  having  the  right 
to  avoid  the  contract,  being  fully  informed,  deliberately  confirms  or 
ratifies  it,  even  though  this  be  done  without  a  new  consideration, 
and  after  acts  have  been  done  which  would  have  released  the  per- 
son affected,  the  party  thus  ratifying  is  thereby  precluded  from 
obtaining  the  relief  he  otherwise  might  have  had.  Williams  v. 
Boyd,  75  Ind.  286. 

The  ratification  or  adoption  of  a  forged  instrument  or  of  a  con- 
tract which  is  prohibited  by  law  or  made  in  violation  of  a  criminal 
statute  involves  altogether  different  principles.  One  who  com- 
mits the  crime  of  forgery  by  signing  the  name  of  another  to  a 
promissory  note  does  not  assume  to  act  as  the  agent  of  the  per- 
son whose  name  is  forged.  Upon  principle  there  would  seem  to  be 
no  room  to  apply  the  doctrine  of  ratification  or  adoption  of  the 
act  in  such  a  case.  Where  the  act  done  constitutes  a  crime  and  is 
committed  without  any  pretense  of  authority  it  is  different  to  under- 
stand how  one  who  is  in  a  sense  the  victim  of  the  criminal  act  may 
adopt  or  ratify  it,  so  as  to  become  bound  by  a  contract  to  which 
he  is  to  all  intent  and  purposes  a  stranger,  and  which  as  to  him 
was  conceived  in  a  crime  and  is  totally  without  consideration.  As 
has  been  well  said,  it  is  impossible  in  such  a  case  to  attribute  any 
motive  to  the  ratifying  party  but  that  of  concealing  the  crime  and 
suppressing  the  prosecution:  "For  why  should  a  man  pay  money 
without  consideration  when  he  himself  had  been  wronged,  unless 
constrained  by  a  desire  to  shield  the  guilty  party?" 

The  distinction  made  in  many  well-considered  cases  seems  to 
be  this :  Where  the  act  of  signing  constitutes  the  crime  of  forgery, 
while  the  person  whose  name  has  been  forged  may  be  estopped  by 
his  admissions,  upon  which  others  may  have  changed  their  relations, 
from  pleading  the  truth  of  the  matter  to  their  detriment,  the  act 
from  which  the  crime  springs  cannot,  upon  considerations  of  public 


I 


p  rnAP...  .'   ■  -ithou.  ..   . 

St.  447 


liook. 


er  any  principle  up<; 


The  q-u 
lant.    ■ 


■•,.  .Hi     :■■; 

'  out  a  ! 


ler  tiic  . 
case  bell, 
instrument, 
contested  upon  r^ 
note  was  the  ap 

:   of  forgery  im  ,;ie  -.rse       i  nt;re   \ 

7  to  the  ':rrTi"ne  v  on  the  oari    of  n- 


er  in  the  reply  or  in  t;  :e,  it  may  as  v 


ihe  appellant's  name  wa 
oy  another  under  preten 

-een,  if  & '' 

act  as  i 


cvious  author iiY. 
ji  which  the  1    ■ 
to  have  hee 


be  ^*"t' 


;,vl    Ivv   lii-r'jrif 


cii  thougn 

.  .,.,  _'i  in  whose 

the  act  'tly  ratifies  or  adopts  what 

'-     •  back  and  supplies  origiiv' 

e.  the' principal  is  bound 
lii,;  Eainc  '  1  done  in  the  first  instance 

liv  his  pre  "^  whether  the  act  be  detri- 

mental tu  •  ■  whether  it  be  founded 

in   tort   n  there  was   an  open   n?- 

sumpi  :  y  who  subsequently  0 

>^*i"    •'  iA-intM\-    rtrifipfl^    the    Ti.L.i.^.. 

-I    r  i:  .  .n  V.  Tumman, 

.!iu.-i,  oo  .i.i.>\va  400     .^o,  if  a  contract 

id  practised  on  one  party,  or  if  for 

',  yet  if  the  '  tving  the  right 

'v  informer',  v  ly  confirms  or 

new  considerate. 

_  e  released  the  pi 

:ng  is  thereby  precluded  frc 


•I  a  lui,  ::t  ur  ot  a  Con- 

or m?  1  of  a  criminal 

One   who   cc 
lie  of  another  to 
the  agent  of  the  per- 
..;.-;,,    diefe  would  seem  to  b** 
ratification  or  adoption  of  f, 
nstitutes  a  crime  and 
it  is  different  to  undo 
;:iii  of  the  criminal  act  n:;' 
n'l  hv  a  contract  to  wh> 
d  which  as  to  hi 
..  consideration.     . 
a  case  to  attribute  a; 
■-■  ■■'■r-r'  the  crime  a 
an  pay  mor 
ronged, 


aay  be  estop 
ig-ed  thei'-  "  ' 
fro;  A  detrim'"' 


WHAT  ACTS    CAN   BE  RATIFIED.  335 

policy,  be  ratified  without  a  new  consideration  to  support  it.  Shisler 
V.  Vandike,  92  Pa.  St.  447,  37  Am.  R.  702 ;  McHugh  v.  County 
of  Schuylkill,  67  Pa.  St.  391,  5  Am.  R.  445;  Workman  v.  Wright, 
33  Ohio  St.  405,  31  Am.  546,  and  note;  Owsley  v.  Philips,  78 
Ky.  517;  Brooke  v.  Hook,  24  L.  T.  34  (3  Alb.  Law  Jour.  255). 
2  Daniel  on  Negotiable  Instruments,  1351,  1353;  2  Randolph  on 
Commercial  Paper,  §  629. 

In  case  of  a  known  or  conceded  forgery,  we  are  unable  to  dis- 
cover any  principle  upon  which  subsequent  promise  by  the  person 
whose  name  was  forged  can  be  held  binding  in  the  absence  of  an 
estoppel  in  pais,  or  without  a  new  consideration  for  the  promise ; 
Workman  v.  Wright,  supra;  Owsley  v.  Philips,  supra. 

Notwithstanding  the  elaborate  argument  of  counsel,  our  conclu- 
sion is  that  neither  the  reply  nor  the  instructions  as  applied  to  the 
evidence  in  the  case  before  us  presents  the  question  of  the  ratifica- 
tion of  a  forged  instrument. 

The  case  was  contested  upon  the  one  side  on  the  theory  that  the 
signature  to  the  note  was  the  appellant's  genuine  signature.  There 
was  no  question  of  forgery  involved  in  the  case.  There  was  no 
evidence  pointing  to  the  crime  of  forgery  on  the  part  of  anyone. 
The  question  was  whether  the  note  had  been  signed  by  the  appel- 
lant, or  by  someone  duly  authorized  by  him.  For  anything  that 
appears  either  in  the  reply  or  in  the  evidence,  it  may  as  well  be 
assumed,  if  the  appellant's  name  was  not  signed  by  himself  that  it 
was  signed  by  another  under  pretense  of  authority. 

As  we  have  seen,  if  the  appellant's  name  was  signed  by  someone 
who  assumed  to  act  as  his  agent,  or  under  pretense  or  color  of  au- 
thority, ratification,  understandingly,  either  by  an  express  promise 
to  pay,  or  by  accepting  a  chattel  mortgage  as  indemnity,  would  be 
equivalent  to  previous  authority. 

The  ratification  which  the  law  interdicts  relates  only  to  such  acts 
as  clearly  appear  to  have  been  done  in  violation  of  a  criminal  statute, 
the  motive  of  the  ratifying  party  being  presumably  the  concealment 
of  the  crime  or  the  suppression  of  its  prosecution.  Where,  however, 
as  in  the  present  case,  the  act  ratified  is  of  an  ambiguous  character, 
and  may  as  well  be  attributed  to  a  mistaken  assumption  of  author- 
ity as  to  a  purpose  to  commit  a  crime,  public  policy  does  not  forbid 
the  adoption  or  ratification  of  the  act;  nor  can  it  be  said  to  be  with- 
out consideration,  especially  where,  as  in  the  present  case,  indem- 
nity has  been  accepted. 

These  conclusions  lead  to  an  affirmance  of  the  judgment. 

Judgment  affirmed  with  costs. 


336  RATIFICATION. 

WELLINGTON  and  Others  v.  JACKSON. 

1876.     Supreme  Judicial  Court  of  Massachusetts. 
121  Mass.  157. 

Contract,  against  the  maker  of  a  promissory  note.  Answer,  a 
denial  that  the  defendant  made  the  note.^    *    *    * 

The  presiding  judge  instructed  the  jury  as  follows:  "If,  upon 
the  whole  evidence  in  the  case,  the  jury  shall  be  satisfied  that  the 
defendant,  knowing  that  his  signature  was  forged,  by  his  words, 
acts  or  silence,  gave  the  plaintiffs  to  understand  that  it  was  not 
forged,  but  was  a  genuine  signature,  intending  thereby  to  cause  the 
plaintiffs  to  rely  on  the  note  as  his  note,  and  the  plaintiffs  did  so 
rely  and  act  upon  it,  and  were  injured  thereby,  the  defendant  would 
be  estopped  to  deny  that  his  name  was  not  a  genuine  signature  and 
that  it  was  not  put  there  by  him  or  by  his  authority." 

The  counsel  for  the  assignee  asked  the  judge  to  give  these  in- 
structions:  "I.  Estoppels  are  not  favored  in  law,  because  they 
operate  to  shut  out  the  truth,  and  to  prevent  parties  from  asserting 
or  defending  their  rights  by  proof  of  actual  existing  facts.  2. 
There  must  be  shown  a  wilful  intent  to  induce  the  party  to  act  on 
the  faith  of  the  alleged  statements  or  representations,  in  addition 
to  the  fact  that  such  statements  were  acted  upon." 

The  judge  gave  the  second  instruction,  as  comprised  substan- 
tially in  the  instructions  already  given,  but  declined  to  give  the 
first. 

The  judge  stated  to  the  jury  that  if  they  found  their  verdict  for 
the  plaintiffs,  he  should  inquire  of  them  whether  they  found  it  on 
the  ground  that  the  defendant  executed  the  note,  or  the  ground 
of  estoppel,  the  jury  found  for  the  plaintiffs,  and  answered  in 
writing  that  they  found  on  the  ground  that  the  defendant  had  "ac- 
knowledged the  signature  to  the  note." 

The  defendant  then  filed  a  motion  for  a  new  trial;  but  the  judge 
overruled  the  motion,  on  the  ground  that  it  appeared,  by  the  spe- 
cial finding  of  the  jury,  that  they  did  not  find  for  the  plaintiffs  on 
the  ground  of  estoppel,  but  on  the  ground  that  the  defendant  had 
acknowledged  the  signature  of  the  note  to  be  his ;  and  being  of  the 
opinion  that  upon  that  ground  the  verdict  was  not  against  the 
weight  of  evidence. 

To  the  above  rulings  and  refusals  to  rule  the  assignee  alleged 
exceptions. 

Gray,  C.  J. — Although  the  signature  of  Edward  H.  Jackson  was 
forged,  yet  if,  knowing  all  the  circumstances  as  to  that  signature 
and  intending  to  be  bound  by  it,  he  acknowledged  the  signature  and 
thus  assumed  the  note  as  his  own,  it  would  bind  him,  just  as  if  it 
had  been  originally  signed  by  his  authority,   even   if   it  did  not 

^  A  portion  of  the  reporter's  statement  of  facts  is  omitted. 


■  aii  es'jojjpei  ai  pais.     Ui  cs,  4  /iiieii 

."ft  V.  Tucker,  104  Mas'-  ver  of  the 

-n  of  the  C(  ^or  the 

ground,  an  ictions 

or  requested  upon  th 


DEMPh  vIBERS 


.^'L'PKEME    JUUICJA:,,    LOURT    OF    .Vi.\:?S/ 

154  Mas?,  330. 


f  a  plate-glass  window.     The  glass  was  broken  by  the 
of  one  McCullock,  while  deli'  me  coal  whi' ' 

"d  r>f  the  defendant  by  the  It  is  foun; 

i;  was  not  the  defendant  s  setvant  when  he  broke 
at  the  "delivery  of  the  coal  by  McCullock  was 
the  defendant,  and  that  such  ratification  made  McCui 
•■''-"'  agent  and  servant  of  the  defendant  in  the  delivery 
On  this  finding  the  court  ruled  "that  the  defendant, 
ranon  of  the  delivery  of  the  coal  by  McCullock  became 
for  his  negligence  in  the  delivery  of  the  coal  "     The 
i  to  this  ruling, 
•  ling  was  warTt; 
ring  of  opinion  ;>ili  of  exec 

forth  all  the  e  on  which   l 

-•re,  the  only  qu'  ore  us  is  at: 

)Ag  just  stated. 
:ontrivin£T  a  new  code  to-dav,  w 


iv  tu  leiuse  jut  to  i' 

believe  to  i     .,  .  .  .11  pan   . 
grounds  of  policy  on  wi. 
lard  to  find,  and  probabi 
society. 

why  a  master  is    ' 

of  one  who  at  i\. 


1  quest  K- 


-   i:  Answer. 

follows:     "If,  up<. 
the  \'  V  shaii  be  satisfied  that  tlic 

defer  wis   forged,  by  his  woriU. 

acts  '  nd  that  it  was  n 

f;"'-^-^  •  ,  .i:iL:,i.,.iii^;  thereby  to  cause  ihc 

7  s  note,  and  the  plaintiffs  did  so 

;  '"'''"  would 

i  are  and 

ofity. 
:    .  .,e  to  give  these 

-;i  not  f;:  law,  because  they 

nd  to  p'  »i''s  from  asserting 

proof  <•  1  .ting  facts.     2, 

intent  ti)  -,:iu;'  e  air-  party  to  act  on 
jents  or  represi-^ntetions,  in  addition 

comprised  substnn- 
;  cclined  to  g 

,  that  if  they  found  their  verdict  for 

'  of  *-h>^m  whether  they  found  it  on 

;'d  the  note,  or  the  ground 

'  ',    and   answered   in 

defendant  had  "ac- 

iiew  trial;  but  the  judge 

nd  that  it  appeared,  by  the  s^  ^ 

•'•■  not  find  for  the  plaintiffs  ^v. 

and  that  the  defendant  had 

'     '     '   s ;  and  being  of  the 

i<  not  against  the 

,■;:  OI  CVi,. 
M-r:  ab  ;nee  alleged 

. ;.  Jackson  v  a 
that  signature 
e  signature  and 
flius  un,  just  as  if  it 

had   been   oriiiiaa:'  ■''■.'.[ 


WHAT  ACTS    CAN    BE   RATIFIED.  337 

amount  to  an  estoppel  in  pais.  Greenfield  Bank  v.  Crafts,  4  Allen 
447;  Bartlett  v.  Tucker,  104  Mass.  336,  341.  The  answer  of  the 
jury  to  the  question  of  the  court  shows  that  they  found  for  the 
plaintiffs  upon  this  ground,  and  renders  immaterial  the  instructions 
given  or  requested  upon  the  subject  of  estoppel.^     *     *     *- 


DEMPSEY  V.  CHAMBERS.  ' 

1891.     Supreme  Judicial  Court  of  Massachusetts. 
154  Mass.  330. 

Holmes,  J. — This  is  an  action  of  tort  to  recover  damages  for  the 
breaking  of  a  plate-glass  window.  The  glass  was  broken  by  the 
negligence  of  one  McCullock,  while  delivering  some  coal  which  had 
been  ordered  of  the  defendant  by  the  plaintiff.  It  is  found  as  a 
fact  that  McCullock  was  not  the  defendant's  servant  when  he  broke 
the  window,  but  that  the  "delivery  of  the  coal  by  McCullock  was 
ratified  by  the  defendant,  and  that  such  ratification  made  McCul- 
lock in  law  the  agent  and  servant  of  the  defendant  in  the  delivery 
of  the  coal."  On  this  finding  the  court  ruled  "that  the  defendant, 
by  his  ratification  of  the  delivery  of  the  coal  by  McCullock  became 
responsible  for  his  negligence  in  the  delivery  of  the  coal."  The 
defendant  excepted  to  this  ruling,  and  to  nothing  else.  We  must 
assume  that  the  finding  was  warranted  by  the  evidence,  a  majority 
of  the  court  being  of  opinion  that  the  bill  of  exceptions  does  not 
purport  to  set  forth  all  the  evidence  on  which  the  finding  was 
made.  Therefore,  the  only  question  before  us  is  as  to  the  correct- 
ness of  the  ruling  just  stated. 

If  we  were  contriving  a  new  code  to-day,  we  might  hesitate  to 
say  that  a  man  could  make  himself  a  party  to  a  bare  tort,  in  any 
case,  merely  by  assenting  to  it  after  it  had  been  committed.  But 
we  are  not  at  liberty  to  refuse  to  carry  out  to  its  consequences  any 
principle  which  we  believe  to  have  been  part  of  the  common  law, 
simply  because  the  grounds  of  policy  on  which  it  must  be  justified 
seem  to  us  to  be  hard  to  find,  and  probably  to  have  belonged  to 
a  different  state  of  society. 

It  is  hard  to  explain  why  a  master  is  liable  to  the  extent  that  he 
is  for  the  negligent  acts  of  one  who  at  the  time  really  is  his  servant. 

J  A  portion  of  the  opinion  dealing  with  a  question  of  bankruptcy  is  omitted. 

"The  following  cases  hold  that  a  forgery  can  be  ratified:    Greenfield  Bank 
V.  Crafts,  4  Allen   (Mass.)   447;   Howard  v.   Duncan,  3  Lans.   174;    Central 
National  Bank  v.  Copp,  184  Mass.  328. 
22 — Reinhard  Cases. 


338  RATIFICATION. 

acting  within  the  general  scope  of  his  employment.  Probably  master 
and  servant  are  "fained  to  be  all  one  person"  by  a  fiction  which  is 
an  echo  of  the  patria  potestas  and  of  the  English  frank  pledge.  By- 
ington  V.  Simpson,  134  Mass.  169,  170.  Fitz.  Abr.  Corone,  pi.  428. 
Possibly  the  doctrine  of  ratification  is  another  aspect  of  the  same 
tradition.  The  requirement  that  the  act  should  be  done  in  the  name 
of  the  ratifying  party  looks  that  way.  New  England  Dredging 
Co.  V.  Rockport  Granite  Co.,  149  Mass.  381,  382;  Fuller  &  Trim- 
well's  Case,  2  Leon.  215,  216,  Sext.  Dec.  512,  De.  Reg.  Jur.,  Reg.  9, 
D.  43,  26,  13  D.  43,  16,  I,  §  14,  gloss.    See  also  cases  next  cited. 

The  earliest  instances  of  liability  by  way  of  ratification  in  the  Eng- 
lish law,  so  far  as  we  have  noticed,  were  where  a  man  retained  prop- 
erty acquired  through  the  wrongful  act  of  another.  Y.  B.  30.  ed. 
I,  128  (Rolls  ed.),  38  Lib.  Ass.  223,  pi.  9;  S.  C.  38  ed.  IIL  18,  En- 
gettement  de  Garde.  See  Plowd,  8  ad  fin.,  27,  31 ;  Bract,  fol.  158  b, 
159a,  171b;  12  ed.  IV  9,  pi.  23.  But  in  these  cases  the  defendant's 
assent  was  treated  as  relating  back  to  the  original  act,  and  at  an  early 
date  the  doctrine  of  relation  was  carried  so  far  as  to  hold  that,  where 
a  trespass  would  have  been  justified  if  it  had  been  done  by  the  au- 
thority by  which  it  purported  to  have  been  done,  a  subsequent  ratifi- 
cation might  justify  it  also.  Y.  B.  7  Hen.  IV  34,  pi.  i.  This  decision 
is  qualified  in  Fitz.  Abr.  Bayllye,  pi.  4,  and  doubted  in  Bro.  Abr. 
Trespass,  pi.  86 ;  but  it  has  been  followed  or  approved  so  continuously 
and  in  so  many  later  cases,  that  it  would  be  hard  to  deny  that  the 
common  law  was  as  there  stated  by  Chief  Justice  Gascoigne.  Godbolt 
109,  no,  pi.  129;  S.  C.  2  Leon.  196,  pi.  246;  Hull  v.  Pickersgill,  i 
Brod.  &  Bing.  282;  Muskett  v.  Drummond,  10  B.  &  C.  153,  157; 
Buron  v.  Denman,  2  Exch.  167,  188;  Secretary  of  state  in  council  of 
India  v.  Kamachee  Boye  Saliaba,  13  Moore  P.  C.  22,  86;  Cheetham 
V.  Mayor  of  Manchester,  L.  R.  10  C.  P.  249;  Wiggins  v.  United 
States,  3  Ct.  of  CI.  412. 

If  we  assume  that  an  alleged  principal  by  adopting  an  act  which 
was  unlawful  when  done  can  make  it  lawful,  it  follows  that  he  adopts 
it  at  his  peril,  and  is  liable  if  it  should  turn  out  that  his  previous 
command  would  not  have  justified  the  act.  It  never  has  been  doubted 
that  a  man's  subsequent  agreement  to  a  trespass  done  in  his  name 
and  for  his  benefit  amounts  to  a  command  so  far  as  to  make  him  an- 
swerable. The  ratihabitio  manda  to  comparohir  of  the  Roman  law- 
yers and  the  earlier  cases  (D.  46,  3,  12,  §  4;  D.  43,  16,  i,  §  14;  Y.  B. 
30,  ed.  1, 128)  has  been  changed  to  the  dogma  ocquiparatnr  ever  since 
the  days  of  Lord  Coke.  4  Inst.  317.  See  Bro.  Abr.  Trespass,  pi.  113  ; 
Co.  Lit.  207a;  Wingate's  Maxims,  124;  Com.  Dig.  Trespass,  C.  i; 
Eastern  Counties  Railway  v.  Broom.  6  Exch.  314,  326,  327;  and 
cases  hereafter  cited. 

Doubts  have  been  expressed,  which  we  need  not  consider,  whether 
this  doctrine  applied  to  the  case  of  a  bare  personal  tort.  Adams  v. 
Freeman,  9  Johns.    117,   118.     Anderson  and  Warberton,  J.  J.,  in 


e,  Cro.  £liz.  824  another  in 

-  .IS  own  head,  it  vv.i.        '  mo-  to  say 

dy  called  himself  my  se;  rds  as- 

more,  our  mere  won'    -  .to  the 

^h  in  such  cases  th^c  :<\  the 

assault  was  i'  '^'='r- 

ation  of  the  '1 

iid  not  ^" 
.     ler,  I  Nf,    __    ^       ,      ,   ,     _ 
:  .ozo,  42  Mich.  6.    As  in  other  v. 
t  they  did  not  amount  to  such  a  rau^  ..  . 
ker  V.  Jerris,  75  Maine  184;  Hyde  v.  Coo; 
language  generally  used  by  judges  and  ti 
ions  as  we  have  been  able  to  find,  is  broad    : 
■■■  the  present  when  the  ratification  is  establisiicd.     Ferity 
own,  7  Gray  464;  Bishop  v.  Montague,  Cro.  Eliz.  8;:.i: 
V.  Baker,  2  Bl.  832;  S.  C.  3  Wils.  309;  Barker  ^ 
.  866,  868;  S.  C.  3 "Wils.  368;  Badkin  v.  Powell,  -_ .  . 
479;  Wilson  V.  Tumman,  6  Man.  &  G.  236,  242;  Lewis 
.^  M.  &  W.  834;  Buron  v.  Denman,  2  Exch.  167,  188;  Bird 
4  Exch.  786,  799;  Eastern  Counties  Railway  v.  Broom, 
vr4,  326,  327;  Roe  v.  Birkenhead,  Lancashire  &  Cheshire 
:lailway,  7  Exch.  36,  41 ;  Ancona  v.  Marks,  7  H.  &  N.  686, 
lit  V.  Baldwin,  21  N.  Y.  219,  225;  Exum  v.  Brister,  35 
:  Galveston,  Harri-^"-'  '^.-  San  Antonio  Ra''""'>'  >    r^,..--.. 
xas,  162.    Murra  ;joy,  2Cliff.  191. 

rray,  3  Wall,  i,  9;  .^.  .  .mi  Agency,  §§  45 
v'stion  remains  whethrr  the  ratification  is  »^ 
:  .'■  '         bill  of  e  -Cullock 

:    i   ,.  ant's  coa;  ofit  and    • 

iant  afterwards  assent,  -Cullock 

was  not  directed  ^^i-  ...  10  McCiu 

as  not  for  the  d  -  benefit  if  ^ 

^nnected  with  Mc>..u!K);k  s  employme;v 
0  been  liable  as  master  if  McCullock  ; 

ering  thr  "'      'lave  foi  >  i-.g 

■  v.'ith  tl^  -e,  but  wc  ^vit 

'I  authority  !  Id 

...  :.   ..   the  emplov;  lie 

^ter  and  servant  from  the  be?.'  1- 

-  '''<•  anomalous  liability-  for  ; 
liu,  102  Mass.  211.  21;,  . 
'>es  to  the  rel    ' 
■'  ^^'T'^t'^r  is  ;■ 


K),  it  was  ag: 


53^ 


RATIFICA 


within  the  general 
w^   .orvant  are  *'!::" '""'* 
an  echo  of  the  pat' 
ington  V.  Simpson,   i^  ; 
Possibly  the  dnrtrine 
tradition.    Th 
of  the  ratify' 
Co.  V.  Re 
well's  Ca.- 
D.  43,  26, 
The  '■■ 
lishl;: 


.-tates,  3  V 
If  we  a 
•vvas  unlaw  i 


■tliai.  a  ijian  s  .- 
r^P't  for  his  be)' 
::.le.     Th-: 
"  tid  the  €■'■■ 
-1.  1,128)  ■ 
■lays  of  Lor.i  v 
it.  207a;  W; 
Kastcrn   Counties 
case>  hfV'^Tifter  ■-!<"<: 

Dc 
this  i.i. 
rVeeman,  9  j 


the 
Co. 


scope  of  his  er  ^oly  master 

''    '  -   ill  one  ]  n  which  is 

:d  of  th.  edge.    By- 

ne,  pi.  428. 
f  the  same 
the  act  lie  in  the  name 

''^t  wa-  -land  Dredging 

I,  382;  Fuller  &  Trim- 
.,  De.  Reg.  Jur.,  Reg.  9, 
ilso  cases  next  cited. 
i>iv  i!v  u.iy  ul  ratification  in  the  Eng- 
ed,  were  where  a  man  retained  prop- 
'  i  act  of  another.     Y.  B.  30.  ed. 
_,.  pi.  9;  S.  C.  38  ed.  III.  18/ En- 
1,  8  ad  fin.,  27,  31 ;  Bract,  fol.  158  b, 
^.    But  in  these  cases  the  defendant's 
!  g  back  to  the  original  act,  and  at  an  early 
'    '^  carried  so  far  as  to  hold  that,  where 
lifted  if  it  had  been  done  by  the  au- 
.d  10  ha\     '  '  nbsequent  ratifi- 

Y.  B.  7  .  ; .    Thi^  decision 

-e,  pi.  4,  and  doubted  in  Bro.  Abr. 
iollowed  or  approved  so  continuouslv 
,  that  it  would  be  hard  to  deny  that  h 
'■:-'\  by  Chief  Justice  Gascoigne.  Godb  • 
i.  196,  pi.  246;  Hull  V.  Pickersgill 
•:.  Drummond,  10  B.  &  C.  153,  15" 
",  188;  Secretary  of  state  in  council 
a,  13  Moore  P.  C.  22,  86;  Cb- 
TO  C.  p.  249;  Wiggins  v. 

..  ,, .    ,->  adopting  an  act  wh; 

.  !  lawful,  it  follows  that  he  adoj.. 

Tould  tuni  out  that  his  previc 

e  act.    It  never  has  been  doubr 

ne  in  his  name 

)  make  him  an- 

oi  the  Roman  law- 

:     M^l,  §I4;Y.  B. 

ratur  ever  since 
espass,  pi.  113 : 

rrespass,  C. 
326,  327;  ana 

•t  consider,  \'. 
nal  tort.     A' 
I'arberton,  J 


WHAT  ACTS   CAN    BE   RATIFIED.  339 

Bishop  V.  Montague,  Cro.  Eliz.  824.  If  a  man  assaulted  another  in 
the  street  out  of  his  own  head,  it  would  seem  rather  strong  to  say 
that,  if  he  merely  called  himself  my  servant,  and  I  afterwards  as- 
sented, without  more,  our  mere  words  would  make  me  a  party  to  the 
assault,  although  in  such  cases  the  canon  law  excommunicated  the 
principal  if  the  assault  was  upon  a  clerk.  Sext.  Dec.  5,  11,  23.  Per- 
haps the  application  of  the  doctrine  would  be  avoided  on  the  ground 
that  the  facts  did  not  show  an  act  done  for  the  defendant's  benefit. 
Wilson  V.  Barker,  i  Nev.  &  Man.  409;  S.  C.  4,  B.  &  Ad.  614,  et  seq.; 
Smith  V.  Lozo,  42  Mich.  6.  As  in  other  cases  it  has  been  on  the 
ground  that  they  did  not  amount  to  such  a  ratification  as  was  neces- 
sary.   Tucker  v.  Jerris,  75  Maine  184;  Hyde  v.  Cooper,  26  Vt.  552. 

But  the  language  generally  used  by  judges  and  text  writers,  and 
such  decisions  as  we  have  been  able  to  find,  is  broad  enough  to  cover 
a  case  like  the  present  when  the  ratification  is  established.  Perley 
V.  Georgetown,  7  Gray  464;  Bishop  v.  Montague,  Cro.  Eliz.  824; 
Sanderson  v.  Baker,  2  Bl.  832 ;  S.  C.  3  Wils.  309 ;  Barker  v.  Bra- 
hani,  2  Bl.  866,  868;  S.  C.  3  Wils.  368;  Badkin  v.  Powell,  Cow- 
per,  476,  479 ;  Wilson  v.  Tumman,  6  Man.  &  G.  236,  242 ;  Lewis 
V.  Read,  13  M.  &  W.  834;  Buron  v.  Denman,  2  Exch.  167,  188;  Bird 
V.  Brown,  4  Exch.  786,  799;  Eastern  Counties  Railway  v.  Broom, 
6  Exch.  314,  326,  327;  Roe  v.  Birkenhead,  Lancashire  &  Cheshire 
Junction  Railway,  7  Exch.  36,  41 ;  Ancona  v.  Marks,  7  H.  &  N.  686, 
695;  Condit  V.  Baldwin,  21  N.  Y.  219,  225;  Exum  v.  Brister,  35 
Miss.  391 ;  Galveston,  Harrisburg  &  San  Antonio  Railway  v.  Dona- 
hoe,  56  Texas,  162.  Murray  v.  Lovejoy,  2  Cliff.  191,  195  ;  see  Love- 
joy  V.  Murray,  3  Wall,  i,  9;  Story  on  Agency,  §§  455,  456. 

The  question  remains  whether  the  ratification  is  established.  As 
we  understand  the  bill  of  exceptions,  McCullock  took  on  himself  to 
deliver  the  defendant's  coal  for  his  benefit  and  as  his  servant,  and 
the  defendant  afterwards  assented  to  McCullock's  assumption.  The 
ratification  was  not  directed  specifically  to  McCullock's  trespass,  and 
that  act  was  not  for  the  defendant's  benefit  if  taken  by  itself,  but 
it  was  so  connected  with  McCullock's  employment  that  the  defendant 
would  have  been  liable  as  master  if  McCullock  really  had  been  his 
servant  when  delivering  the  coal.  We  have  found  hardly  anything 
in  the  books  dealing  with  the  precise  case,  but  we  are  of  opinion  that 
consistency  with  the  whole  course  of  authority  requires  us  to  hold 
that  the  defendant's  ratification  of  the  employment  established  the 
relation  of  master  and  servant  from  the  beginning,  with  all  its  inci- 
dents, including  the  anomalous  liability  for  his  negligent  acts.  See 
Coomes  v.  Houghton,  102  Mass.  211,  213,  214;  Cooley  Torts  128, 
129.  The  ratification  goes  to  the  relation,  and  establishes  it  ah  initio. 
The  relation  existing,  the  master  is  answerable  for  torts  which  he  has 
not  ratified  specifically,  just  as  he  is  for  those  which  he  has  not  com- 
manded, and  as  he  may  be  for  those  which  he  has  expressly  forbidden. 
In  Gibson's  Case,  Lane  90,  it  was  agreed  that,  if  strangers  as  servants 


340  RATIFICATION. 

to  Gibson,  but  without  his  precedent  appointment,  had  seized  goods 
by  color  of  his  ofhce  and  afterwards  had  misused  the  goods,  and  Gib- 
son ratified  the  seizure,  he  thereby  became  a  trespasser  ab  initio,  al- 
though not  privy  to  the  misusing  which  made  him  so.  And  this 
proposition  is  stated  as  law  in  Com.  Dig.  Trespass,  c.  i ;  Elder  v. 
Bemis,  2  Met.  599,  605.  In  Coomes  v.  Houghton,  102  Mass.  211,  the 
alleged  servant  did  not  profess  to  act  as  servant  to  the  defendant,  and 
the  decision  was  that  a  subsequent  payment  for  his  work  by  the  de- 
fendant would  not  make  him  one.  For  these  reasons,  in  the  opinion 
of  a  majority  of  the  court,  the  exceptions  must  be  overruled. 
Exceptions  overruled.^ 


Section  2. — Requisites  of  Ratification. 

TRUEBLOOD  v.  TRUEBLOOD. 
1856.     Supreme  Court  of  Indiana.     8  Ind.  195. 

Perkins,  J. — Bill  in  chancery,  under  the  old  practice,  to  compel 
a  specific  performance,  and  to  set  aside  a  fraudulent  deed.  Bill  dis- 
missed. The  facts  of  the  case,  so  far  as  material  to  its  decision,  are 
as  follows : 

In  1845  William  Trueblood  was  an  infant,  and  owner  of  a  piece  of 
land.  At  that  date  Richard  J.  Trueblood,  the  father  of  said  William, 
executed  a  title-bond  to  one  Nathan  Trueblood,  whereby  he  obligated 
himself  to  cause  to  be  conveyed  to  him,  said  Nathan,  the  piece  of 
land  belonging  to  William,  after  the  latter  should  become  of  age. 
The  conveyance  was  to  be  upon  a  stated  consideration.  The  bond 
is  single,  simply  the  bond  of  Richard,  and  William  is  nowhere  men- 
tioned in  it  as  a  party,  but  his  name  is  signed  with  his  father's  at  the 
close  of  the  condition,  as  may  be  supposed,  in  signification  of  his 
assent  to  the  execution  of  the  instrument  by  his  father.  We  shall 
so  treat  his  signature  to  the  bond. 

After  William  became  of  age,  it  is  claimed  that  he  ratified  the  bond, 

^  "He  that  receiveth  a  trespasser  and  agreeth  to  a  trespass  after  it  be  done,  is 
no  trespasser,  unless  the  trespass  was  done  to  his  use  or  for  his  benefit,  and 
then  his  agreement  subsequent  aniounteth  to  a  commandment ;  for  in  that 
case,  omnis  ratihabitio  retrotrahitur,  ct  mandato  cEquiparatur."    4  Co.  Inst. 

317. 

"Chief  Justice  Tindall,  in  Wilson  v.  Tumman,  6  Man.  &  Gr.  (46  Eng.  C.  L. 
R.)  236,  states  the  rule  more  fully  thus:  'That  an  act  done  for  another  by  a 
person  not  assuming  to  act  for  himself,  but  for  such  other  person,  though 
without  any  precedent  authority  whatever,  becomes  the  act  of  the  principal  if 
subsequently  ratified  by  him,  is  the  known  and  well-established  rule  of  law. 
In  that  case  the  principal  is  bound  by  the  act,  whether  it  be  for  his  detriment 
or  advantage,  and  whether  it  be  founded  on  a  tort  or  a  contract,  to  the  same 
extent  as  by  and  with  all  the  consequences  which  follow  from  the  same  act 
done  by  his  previous  authoritv.' "  Burks,  J.,  in  Forbes  v.  Hagman,  75  Va.  168, 
178. 


,-.1    '.  •;:  :terv\ai(i.-    viU  ami  conveyed  i  '      *■  Lock- 

t !  ij  ;,  who  had  notice,  etc.    This  h.  :.ve  the 

'  -!  to  Lockridj;'e  set  aside,  and  ;•  Nathan 

iru'jblood,  pursuant  to  the  terms  of  ■ 

Tlie  court  below,  as  we  have  stated,  refus'  -et, 

and  held,  as  council  inform  us.  ■'•"''  *^'  •■  hon^  ^-c.r.  ■>£ 

ratification  by  William  Truebl  vhether  it  w 

tion  in  the  cr. 
n,  w^e  need  n- 
claimed  evidence  that  such 
the  bond  is  not  in  terms  tlv 

not,  by  virtue  of  its  express  provisions,  be  sued  upon  it.    V. 
father  signs  his  name  to  articles  of  apprenticeship  of  his  son,  ou..^.. 
to  sigTiify  his  assent  to  them,  he  cannot  be  a  party  to  a  suit  upon  the 
-tides.    Brock  v.  Parker,  5  Ind.  558. 

If  the  bond,  then,  can  in  any  light  be  regard>ed  as  the  contract  of 
in  Trueblood,  it  must  be  because  his  father  may  be  cor 
yent  in  executing  it.  Can,  then,  an  infant,  after  arriving 
ratify  the  act  of  his  agent,  performed  while  he  was  an  infant  ?  This 
depends  upon  whether  his  appointment  of  an  agent  is  a  void  or  void- 
able act.  If  the  former,  it  cannot  be  ratified  (State  v.  State  Bank,  5 
Ind.  353")  ;  if  the  latter,  it  can  be  (Reeve's  Dom.  Rel.  240). 

In  the  first  volume  of  American  Leading  Cases  (3d  ed.),  248,  et 
seq.,  the  doctrine  is  laid  down,  as  the  result  of  the  American  cases  on 
the  ^:-:b'-ct,  that  the  only  act  an  infant  is  incapable  of  perforrrirjg-  as 
•;  is  the  appointment  of  an  agent  or  attorney.    ^  ^he 

(i  .,v .         ;>  founded  in  solid  reasons,  they  admit,  may  ^ 

but  asjiert  that  there  is  no  doubt  but  that  it  is  the  law.    S 
^h-      -■'  cted. 

seems  to  be  held  the  same  in  England.    In  I 
&  W.  778,  a  case  slightly  like  the  present  is 
.  y  in  argument  said:  "Here    a  tenancy  br. 
Ave.  children,  or  by  Hugh  Thomas  acting  ; 
'^plied:  "That  is  the  fallacy  of  your 
m  agent  cannot  bind  an  infant.   If  at^  nts 

ke  a  lease,  it  does  not  bind  the  infart  his 

1  him.    There  is  no  doubt  about  tt  of 

'■)d,  must  be  his  own  per='  id 

ersonal  act  of  the  infant,  ii , 

^  simply  voidable.     But  tV  ■  r 

d  to  act  as  such,  is  void,  ; 
and  V.  Kuns,  8  Blackf,  34 
•  must,  therefore,  be  affi- 

■'  '-'Mt  authority  by  another  ,.,...,^1 

■\    Whitney  v.  Dutch,  i.:  Armi- 


340 


RATIFICATION. 


to  Gibson,  but  without  his  precedei 
by  color  of  his  office  and  afterwards 
sou  ratified  the  seizure,  he  thereby 
though  not  privy  to  the  v 
proposition  is  state'!  as  In  . 
Bemis,  2  Met. 
alleged  servani 
the  decision  w 
fendant  wouh' 
of  a  majoi 
Except; 


t,  had  seized  goods 
^;j.  the  goods,  and  Gib- 
trespasser  ab  initio,  al- 
^  so.     And  this 
c.  I ;  Elder  v. 
i02  Mass.  211,  the 
)  the  defendant,  and 
:nt  payment  lor  his  work  by  the  de- 
c.    For  these  reasons,  in  the  opinion 
Kceptions  must  be  overruled. 


Section  2 


ianu   u 
The  c  » 
is  single,  •- 
tioned  in  it  ... 
close  of  the  c 
assent  to  the  ^ 
so  treat  his  sig 
,A  iter  William 


c?ise,  ouinis  ratihabttit 

stice  Tiivi 

■  les  the  ni 
jv  .■  ■  li   ..ul  assiv 
witbi-tt  any  pre 
sir 
Ji 

extent   as  by  an 


uficatiou. 

'  )OD  V.  TRUEBLOOD. 

"ouRT  OF  Indiana.    8  Ind.  195. 

iiicery,  under  the  old  practice,  to  compel 

':  to  set  aside  a  fraudulent  deed.    Bill  dis- 

ise.  so  far  as  material  to  its  decision,  are 

ii  wa:.  an  uiiaiU,  Aiui  nwner  of  a  piece  of 
T.  Trueblood,  the  father  of  said  William, 
>"  itlian  Trueblood,  whereby  he  obligated 
:d  to  him,  said  Nathan,  the  piece  of 
ler  the  latter  should  become  of  age. 
u  a  stated  consideration.     The  bond 
.chard,  and  William  is  nowhere  men- 
.  ime  is  signed  with  his  father's  at  tin- 
be  supposed,  in  signification  of  1: 
rniment  by  his  father.     We  sh; 

claimed  that  he  ratified  the  bon 

♦^h  to  a  trespass  after  it  be  done 
'  his  use  or  for  his  benefit,  :r 
r;    ronimandment;    for  in  t: 
•.ilur."    4  Co.  Inst 

&  Gr.  (46  Eng.  C 

done  for  another  V' 
oiher  person. 
ict  of  the  pri'. 
'  ■■shed  rule      '   ' 'w. 
tor  hh  deir'nient 

,  V  '/luract,  to  t'- " 

■w  from  the  ' 

TTrjrrm.ci     7f 


REQUISITES.  341 

and  afterwards  sold  and  conveyed  the  land  to  another,  Robert  Lock- 
ridge,  who  had  notice,  etc.  This  bill  was  filed  in  order  to  have  the 
deed  to  Lockridge  set  aside,  and  a  conveyance  decreed  to  Nathan 
Trueblood,  pursuant  to  the  terms  of  the  bond. 

The  court  below,  as  we  have  stated,  refused  to  enter  such  a  decree, 
and  held,  as  council  inform  us,  that  the  bond  was  not  susceptible  of 
ratification  by  William  Trueblood;  and  whether  it  was  or  not  is  the 
important  question  in  the  case ;  for  if  the  bond  was  not  susceptible  of 
such  ratification,  we  need  not  inquire  into  the  alleged  facts  which  it  is 
claimed  evidence  that  such  an  act  had  been  done.  As  we  have  seen, 
the  bond  is  not  in  terms  the  bond  of  William  Trueblood.  He  could 
not,  by  virtue  of  its  express  provisions,  be  sued  upon  it.  Where  a 
father  signs  his  name  to  articles  of  apprenticeship  of  his  son,  simply 
to  signify  his  assent  to  them,  he  cannot  be  a  party  to  a  suit  upon  the 
articles.    Brock  v.  Parker,  5  Ind.  538. 

If  the  bond,  then,  can  in  any  light  be  regarded  as  the  contract  of 
William  Trueblood,  it  must  be  because  his  father  may  be  considered 
his  agent  in  executing  it.  Can,  then,  an  infant,  after  arriving  at  age, 
ratify  the  act  of  his  agent,  performed  while  he  was  an  infant?  This 
depends  upon  whether  his  appointment  of  an  agent  is  a  void  or  void- 
able act.  If  the  former,  it  cannot  be  ratified  (State  v.  State  Bank,  5 
Ind.  353)  ;  if  the  latter,  it  can  be  (Reeve's  Dom.  Rel.  240). 

In  the  first  volume  of  American  Leading  Cases  (3d  ed.),  248,  et 
seq.,  the  doctrine  is  laid  down,  as  the  result  of  the  American  cases  on 
the  subject,  that  the  only  act  an  infant  is  incapable  of  performing  as 
to  contracts  is  the  appointment  of  an  agent  or  attorney.  Whether  the 
doctrine  is  founded  in  solid  reasons,  they  admit,  may  be  doubted; 
but  assert  that  there  is  no  doubt  but  that  it  is  the  law.  See  the  cases 
there  collected. 

The  law  seems  to  be  held  the  same  in  England.  In  Doe  v.  Rob- 
erts, 16  M.  &  W.  778,  a  case  slightly  like  the  present  in  some  respects, 
the  attorney  in  argument  said :  "Here  a  tenancy  has  been  created, 
either  by  the  children,  or  by  Hugh  Thomas  acting  as  their  agent." 
Parke,  B.,  replied :  "That  is  the  fallacy  of  your  argument.  An 
agreement  by  an  agent  cannot  bind  an  infant.  If  an  infant  appoints 
a  person  to  make  a  lease,  it  does  not  bind  the  infant,  neither  does  his 
ratification  bind  him.  There  is  no  doubt  about  the  law ;  the  lease  of 
an  infant,  to  be  good,  must  be  his  own  personal  act."  So  here,  had 
the  bond  been  the  personal  act  of  the  infant,  he  could  have  ratified  it. 
It  would  have  been  simply  voidable.  But  the  bond  of  his  agent,  or 
one  having  assumed  to  act  as  such,  is  void,  and  not  capable  of  being 
ratified.    See  Hiestand  v.  Kuns,  8  Blackf.  345. 

The  decree  below  must,  therefore,  be  affirmed  with  costs. ^ 

^  A  contract  made  without  authority  by  another  for  an  infant  may  be  ratified 
by  him  after  coming  of  age.  Whitney  v.  Dutch,  14  Mass.  457.  Contra:  Armi- 
tage  V.  Widoe,  36  Mich.  124. 


342  RATIFICATION. 

STETSON  V.  PATTEN  et  al. 
1823.     Supreme  Judicial  Court  of  Maine.     2  Greenl.  358. 

This  was  an  action  of  covenant  upon  an  agreement  under  seal, 
signed  by  the  defendant,  and  by  "Simeon  Stetson  for  Amasa  Stetson" 
the  plaintiff,  by  which  the  defendants  agreed  to  enter  upon  certain 
unimproved  lands  for  the  plaintiff  in  the  plantation  of  Stetson  in  this 
county,  and  make  two  farms  thereof,  and  pay  certain  moneys  to  the 
plaintiff  with  interest  annually ;  in  consideration  whereof  the  plaintiff 
was  to  make,  execute  and  deliver  to  them  a  sufficient  warranty  deed 
of  the  same  lots.  In  the  instrument  declared  on,  the  said  Simeon 
was  not  named,  except  in  the  signature  as  above,  but  the  covenants 
were  wholly  in  the  name  of  the  plaintiff". 

In  a  case  stated  by  the  parties  it  was  agreed  that  said  Simeon  had 
not  any  authority  under  the  hand  and  seal  of  the  plaintiff  to  sign 
and  seal  the  instrument  declared  on ;  but  that  living  in  the  vicinity 
of  the  plaintiff's  lands  in  this  county,  he  had  been  requested  by  the 
plaintiff,  who  is  his  brother,  to  superintend  and  manage  his  interests 
relative  to  said  estate  ; — and  that  pursuant  to  this  request  he  made  and 
executed  the  deed  declared  on,  in  behalf  of  the  plaintiff,  who  resides 
in  Massachusetts,  and  which  he  afterwards  delivered  to  the  plaintiff. 
It  was  further  agreed  that  another  deed  of  the  same  tenor  and  date 
was  made  and  delivered  to  the  defendants,  v/ho  in  pursuance  of  the 
agreement^  entered  and  made  improvements  upon  the  land ;  and  that 
about  three  years  after  the  date  of  the  agreement  they  settled  an  ac- 
count with  the  plaintiff,  and  applied  a  balance  due  to  them  on  account 
toward  the  payment  of  the  interest  due  on  said  agreement,  which  the 
plaintiff  accordingly  endorsed  thereon. 

Hereupon  the  question  was  whether  the  plaintiff  was  bound  by  this 
agreement, — and  if  not,  whether  it  was  obligatory  on  the  defendants  ? 

Mellen,  C.  J.,  delivered  the  opinion  of  the  court. 

It  is  agreed  that  Simeon  Stetson  had  not  any  authority  under  the 
hand  and  seal  of  the  plaintiff,  to  execute  the  instrument  declared  on ; 
and  it  therefore  was  not  the  deed  of  Amasa  Stetson.  No  authorities 
need  be  cited  to  shew  that  when  an  instrument  under  seal  is  executed 
by  attorney,  the  attorney  must  be  authorized  by  deed  under  the  hand 
and  seal  of  the  principal.  This  is  admitted  by  the  counsel  for  the 
plaintiff,  but  he  contends  that  in  consequence  of  certain  acts  which 
have  been  done  by  the  principal  since  the  execution  of  the  instrument, 
it  has  been  sanctioned  and  adopted  by  him,  and  thereby  has  become 
his  deed.  The  circumstances  relied  on  as  proof  of  such  ratification 
are,  his  acceptance  of  the  indenture  from  the  hands  of  his  brother 
after  its  execution,  and  the  endorsement  on  the  back  of  the  instru- 
ment of  money  received  from  the  defendants  on  account  of  the  con- 
tract.   With  respect  to  these  facts,  they  cannot  amount  to  anything 


V .re  than  a  ^iiv  ii.,i'  and  ratific?.t''m  iT^adc  bv  parol;  and  such  ratifi- 

i  could  n.ii  be  more  avail'  '.thority  given  before 

lu   itistrunient  was  signed    ^  -■'■>    '-  ^>t  no  import- 

uce.    The  plaintiff  therei  ind.    *    *    * 

^'  jnsuit  entered.^ 


HAWKIN 

"S-,J        --^  PREME  C 

-By  an  act  approved  March  19,  189; 
id  perjuries,"  §  2513  Revised  Statutes  1879,  was  r; 
I,  .<  the  following  clause  to  that  section:  "And  no  conti.xv.. 
le  of  lands  made  by  an  agent  shall  be  binding  upon  the  principa.' 
-  such  agent  is  authorized  in  writing  to  make  said  contract." 
■«  an  action  in  the  nature  of  a  bill  in  equity  to  specially  enforce 
a  contract  of  an  agent  in  the  name  of  his  principal  for  a  sale 
.ade  by  the  agent,  not  within  the  terms  of  such  agent's  writ- 
ithority,  upon  the  ground  of  a  verbal  ratification  of  such  sale 
,  ;;.c  principal  after  he  was  informed  thereof.     In  the  facts  of  the 
■ase  there  is  no  element  of  equitable  estoppel.     Plaintiff's  evidence 
i-d  at  most  only  to  prove  that  the  defendant  when  informed  by 
of  the  sale,  did  not  manifest  to  the  agent  any  disapprobation 
'^f .  but  directly  thereafter  sold  to  another  person, 
c  trial  court  ruled  that  the  written  authority  rnn^t 
to  make  the  contract  which  he  does  mak*. 
" '^    and  unless  it  does  so  the  ratification 
'  bind  him,  citing  Story  on  Agency  1 
Line  v.  Mfg.  Co.,  12  N.  H.  205,  in  v.l 
.tion  of  an  act  done  by  one  assumini? 
:  is  equivalent  to  a  prior  authority.     ' 
■)f  any  particular  *"  ri-;  or  mode  is  nc" 
'  e  first  instar  ;an  be  no  v; 

anner." 

'  law,  where  a  contract  is  rer^  da 

■  •     '      be  under  seal,     i  Am  136 : 

and  authorities  in  no^  icy, 

LuiitKc  m  note  6,  same  page.  !  ii.- 

V.   Goodrich,  9  Wend.    (N 
-•  N.  H.  20"?. 


:  bUA  V.  rV' 


1823.      SUPREM. 


OF  Maine.     2  Greenl.  358. 


This  was  a^ 
signed  by  the  ci 
the  plaintiff,  b 
unimproved  la; 
county,  an' 
plaintiff  \\ 
was  to  mr; 
of  the  sa 


towara  ■. .. 
plaintiff  '.,■ 
Hereiip- 
agreement, 

M ELLEN,  L. 


If 


'•eeo 


I]'.  ed  to  sh. 

■n,^y,  the  ati 
al  of  the  prii 
iff,  but  he  C(>: 
een  done  by  '  . . 
been  sanctioned 
■:d.    The  circum 
are,  his  acceptance  of 
after  its  execution,  an> 
ment  of  money  receive 
"';th  resper-;  ' 


■  L  upon  an  agreement  under  seal, 

Simeon  Stetson  for  Amasa  Stetson" 

idants  agreed  to  enter  upon  certain 

if  in  the  plantation  of  Stetson  in  this 

■  reof,  and  pay  certain  moneys  to  the 

'11  consideration  whereof  the  plaintiff 

them  a  sutlicient  warranty  deed 

'  t  declared  on,  the  said  Simeon 

.gnature  as  above,  but  the  covenants 

wv.  plaintiff. 

rties  it  was  agreed  that  said  Simeon  had 
e  hand  and  seal  of  tlie  plaintiff  to  sign 
lared  on;  but  that  living  in  the  vicinity 
tis  county,  h  "quested  by  the 

,  to  superinti  e;^e  his  interests 

that  pursuant  to  this  request  he  made  and 
on,  in  behalf  '■■'<  ^^^'■'  plaintiff,  who  resides 
'1  he  afterwrs  red  to  the  plaintiff*. 

-roller  deed  -i  v.a-  same  tenor  and  date 
viefendants,  who  in  pursuance  of  the 
•  ements  upon  the  land ;  and  that 
lie  agreement  they  settled  an  ac- 
ne d  a  balance  due  to  them  on  account 
est  due  on  said  agreement,  which  the 
hereon. 

'1  ether  the  plaintiff  was  bound  by  this 

it  was  obligatory  on  the  defendants  ? 

'ion  of  the  court. 

had  not  any  authority  under  the 

nite  tlie  instrument  declared  on ; 

Amasa  Stetson.    No  authorities 

istrument  under  seal  is  executed 

1,  ,,;  -f.,1  K,r  ,^.....1  under  the  hand- 

i  ounsel  for  the 

^rtain  acts  which 

:i  of  the  instrument, 

thereby  has  become 

of  such  ratification 

!(-  tiands  of  his  brother 

the  back  of  the  instru- 

oti  account  of  the  con- 

uot  amount  to  anythir-r 


REQUISITES.  343 

more  than  a  sanction  and  ratification  made  by  parol ;  and  such  ratifi- 
cation could  not  be  more  availing-  than  a  parol  authority  given  before 
the  instrument  was  signed,  which,  as  we  have  seen,  is  of  no  import- 
ance. The  plaintiff  therefore  cannot  prevail  on  this  ground.  *  *  * 
Nonsuit  entered.^ 


HAWKINS  V.  McGROARTY  et  al. 

1892.     Supreme  Court  of  Missouri,     no  Mo.  546. 

Brace,  I. — By  an  act  approved  March  19,  1897,  the  statute  of 
"frauds  and  perjuries,"  §  2513  Revised  Statutes  1879,  was  amended 
by  adding  the  following  clause  to  that  section :  "And  no  contract  for 
the  sale  of  lands  made  by  an  agent  shall  be  binding  upon  the  principal 
unless  such  agent  is  authorized  in  writing  to  make  said  contract." 
This  is  an  action  in  the  nature  of  a  bill  in  equity  to  specially  enforce 
the  written  contract  of  an  agent  in  the  name  of  his  principal  for  a  sale 
of  land  made  by  the  agent,  not  within  the  terms  of  such  agent's  writ- 
ten authority,  upon  the  ground  of  a  verbal  ratification  of  such  sale 
by  the  principal  after  he  was  informed  thereof.  In  the  facts  of  the 
case  there  is  no  element  of  equitable  estoppel.  Plaintiff's  evidence 
tended  at  most  only  to  prove  that  the  defendant  when  informed  by 
letter  of  the  sale,  did  not  manifest  to  the  agent  any  disapprobation 
thereof,  but  directly  thereafter  sold  to  another  person. 

The  trial  court  ruled  that  the  written  authority  must  authorize  the 
agent  to  make  the  contract  which  he  does  make,  in  order  to  bind  the 
principal,  and  unless  it  does  so  the  ratification  thereof  must  be  in 
writing  to  bind  him,  citing  Story  on  Agency  (9th  ed.),  §  242,  and 
Despatch  Line  v.  Mfg.  Co.,  12  N.  H.  205,  in  which  it  was  held  that 
"a  ratification  of  an  act  done  by  one  assuming  to  be  agent  relates 
back,  and  is  equivalent  to  a  prior  authority.  When,  therefore,  the 
adoption  of  any  particular  form  or  mode  is  necessary  to  confer  the 
authority  in  the  first  instance,  there  can  be  no  valid  ratification  except 
in  the  same  manner." 

At  common  law,  where  a  contract  is  required  to  be  under  seal  a 
ratification  must  also  be  under  seal,  i  Am.  &  Eng.  Ency.  Law  436 ; 
Story  on  Agency,  §  49,  and  authorities  in  note  3  ;  Mechem  on  Agency, 
§  137,  and  authorities  in  note  6,  same  page.    And  upon  the  same  prin- 

^  Accord:  Blood  v.  Goodrich,  9  Wend.  (N.  Y.)  68;  Despatch  Line  v. 
Bellamy  Mfg.  Co.,  12  N.  H.  205. 

The  Massachusetts  rule  is  that  the  unauthorized  execution  of  a  sealed  in- 
strument can  be  ratified  by  parol.  Cady  v.  Shepherd,  11  Pick.  (Mass.)  400; 
Mclntyre  v.  Park,  11  Gray  (Mass.)   102. 

Regarding  ratification  by  partnership  of  a  deed  executed  by  one  partner 
■without  authority,  see  McDonald  v.  Eggleston,  26  Vt.  154. 


344  RATIFICATION. 

ciple  the  last  author,  stating  the  general  rule  says,  "If,  therefore, 
sealed  authority  was  indispensable,  sealed  ratification  must  be  shown  ; 
and  if  written  authority  was  required,  written  ratification  must 
appear."    §  136. 

In  Pollard  &  Co.  v.  Gibbs,  55  Ga.  45,  it  was  held  that  "where  a  crop 
lien  for  fertilizers  is  executed  by  an  agent  who  acts  without  authority 
from  the  principal,  and  in  his  absence,  and  the  lien  is  under  seal,  proof 
of  the  ratification  by  the  principal  must  be  in  writing  and  under 
seal." 

In  Ragan  v.  Chenault,  78  Ky.  546,  under  a  statute  which  provided 
that  "no  person  shall  be  bound  as  the  surety  of  another  by  the  act  of 
an  agent,  unless  the  authority  of  the  agent  is  in  writing,  signed  by  the 
principal ;"  it  was  held  that  subsequent  verbal  ratification  would  not 
bind  the  surety;  that  to  so  hold  would  be  to  defeat  the  object  of  the 
statute. 

In  Palmer  v.  Williams,  24  Mich.  328,  under  a  statute  of  frauds,  the 
same  as  our  own,  before  the  adoption  of  the  amendment  set  out,  it 
was  held  that  "ratification,  if  not  made  in  writing,  with  due  knowl- 
edge of  the  circumstances,  could  only  be  made  out  by  such  conduct 
on  the  part  of  the  principal  as  would  equitably  estop  him  from  insist- 
ing on  his  rights.  And  such  an  estoppel  woiild  not  be  made  out 
unless  defendants  had  been  so  far  misled  by  him  to  their  own  preju- 
dice, that  justice  demanded  their  protection  against  him.  *  *  * 
In  the  absence  of  any  conduct  designed  or  calculated  to  mislead,  mere 
delay  will  not  deprive  an  owner  of  his  estate,  legal  or  equitable,  until 
barred  by  some  clear  rule  of  equity." 

There  is  no  such  bar  in  the  facts  of  this  case.  Hiemans  was  au- 
thorized in  writing  by  the  defendant  Maull  to  sell  his  property  for 
$1,400.  On  the  ninth  of  July  he  sold  to  plaintiff  for  $1,300,  who  paid 
Hiemans  $40  earnest  money,  and  received  from  him  a  receipt  for  that 
amount  on  acount  of  the  sale.  Hiemans  says  he  immediately  wrote 
Maull  a  letter,  and  that  Maull  called  the  next  day,  when  he  explained 
the  sale  to  him  and  he  manifested  no  disapprobation.  Maull  sold  to 
his  co-defendant,  McGroarty,  on  the  evening  of  the  eleventh.  He 
testifies  that  he  did  not  see  Hiemans  until  after  this  sale,  and  did  not 
receive  his  letter  until  the  evening  of  the  day  he  sold  to  McGroarty, 
and  did  not  understand  from  its  contents  that  his  agent  had 
actually  efifected  a  sale.  However  the  truth  of  this  matter  may 
be,  he  never  received  from  his  agent  the  earnest  money  of  the  plain- 
tiff ;  in  a  day  or  two,  took  the  check  he  received  from  McGroarty 
for  $50,  paid  by  him  as  earnest  money,  to  Hiemans  (who  collected  it), 
and  directed  conveyances  to  be  prepared  to  McGroarty,  which  was 
accordingly  done,  the  balance  of  the  purchase  money  paid,  and  the 
deeds  delivered  on  the  twenty-second  of  July.  In  the  meantime  he 
never,  by  any  act  or  word  of  his,  gave  the  plaintiff  to  understand  for 
a  moment  that  he  had  authorized  or  ratified  the  sale  made  by  Hiemans 
to  him ;  but  from  the  first  approach  to  him,  made  by  the  plaintiff,  to 


lere  is  i. 
....:;^%  bind  ti..  ., 
question,  whicl; 

affirme< : 


COMBS 


D  OTHERS 


R  Judicial  Cour 


SACHUSETTS.       12  All 


•■onj^ht  t  '  the  price  agreed  to  be  paid  to  the 

\ices  in  two  recruits  and  securing  their 

'ilitary  ^. :  .  -       :.  the  Unit'"'  -fiif";    ;i..  :,  i,:i'v  .••>* 
vn  of  Hawley. 
'i.i!  ill  -lie  superior  court,  before  L-.  ki,  j,.  ;.(c  -iHii.i'.iu  m 
\  idence  tending  to  show  that  in  August,  1864.  the  defend- 
e  of  a  fund  eonimitted  to  them  for  '"  ose  of 

■.its  for  said  tov.-n  iv,  -^vch  "service,  anci  •  wfr? 

work  a  ton  as  t:: 

.- ...  by  them  ^. n  in  thei' 

riim,  agreeing  ic  for  each  recruii 

'le  number  of  two  i-  •  -i  that,  if  nr 

n  given  to  Dunton  t  the  plan'' 


request 


to 

-'«t 


U  them  in  the  mihtar 


•h.  374- 


seileci  authority  wj 


irom  the  princ. 
of   the   rslifi'-.r 

seal." 

InK 
that  "; 

a/' 

pi; 


ij.' 

Hiemaiis  ^ 

amooint  Oil 

'  aull  a  let^ 


arm    ■.int 


receiv( 


never, 
rnornent  that  he  h; 


ix,  i.^refore, 
iust  be  shown ; 
ritication   rau. ' 

■'where  a  crop 

hout  authority 

.  and  tae  hen  is  under  seal,  proof 

;''i!;ci    Vh      "ti    vvn'f'np'    roM'1    1 1 tt"' '■■' ''" 
ui;Uuc  ',\iiit.M  (jiuviuce! 

d  another  by  the  act  of 
■lied  by  the 
would  not 
would  be  U>  defeat  the  object  of  ti 

h.  328,  iinder  a  statute  of  frauds,  the 
I  ioption  of  the  amendment  set  out,  it 
not  made  in  writinir.  with  due  knowl- 
'  ^       '     '  '  '  /  such  conduct 

m  from  insist- 
.  be  made  out 
.  :  li.  ■       i      .  :eii'  own  preiii- 

their  protection  agamst  him.    ' 
.'i^c;<.-n,^,l  -w  ,    '.ulated  to  mislead,  ...v 
iee^al  or  equitable,  un' 

"mans  was  a- 

i   Alauli  t>>  sed  his  property  for 
o  Qlaintiflf  for  $1,300,  who  paid 
■1:1  liim  a  receipt  for  th:. 
^  •'  immediately  wro; 
when  he  explahjc 
uaiion.    Maull  sold  l^-- 
i'  of  the  eleventh.     He 
'  :s  sale,  and  did  n 
old  to  McGroart 
it    his    agent    h;; 
this  matter  mn 
.•  of  the  plaiv 
:.(>m  McGroari 
'who  collected  it 
. ty,  which  Ma 
paid,  and  ti" 
in  d^. 
'^i-flrtoi; 
.  '  made  by  H' 


REQUISITES.  345 

secure  a  performance  of  the  contract,  steadily  refused  to  recognize, 
ratify  or  confimi  the  same. 

Under  the  statute,  as  it  now  reads,  requiring  written  authority  for 
the  contract  which  the  agents  m.ake,  there  can  be  no  question,  it 
would  seem,  that  there  is  no  such  ratification  here  as  could,  by  any 
process  of  reasoning,  bind  the  defendant  Maull  to  specifically  perform 
the  contract  in  question,  which  his  agent  Hiemans  had  no  written 
authority  to  make. 

The  judgment  is  affirmed.    All  concur.^ 


COMBS  V.  SCOTT  and  others. 
1866.     Supreme  Judicial  Court  OF  Massachusetts.     12  Allen  493. 

Contract,  brought  to  recover  the  price  agreed  to  be  paid  to  the 
plaintifif  for  his  services  in  obtaining  two  recruits  and  securing  their 
enlistment  in  the  military  service  of  the  United  States,  as  a  part  of 
the  quota  of  the  town  of  Hawley. 

At  the  trial  in  the  superior  court,  before  Lord,  J.,  the  plaintiff  in- 
troduced evidence  tending  to  show  that  in  August,  1864,  the  defend- 
ants had  charge  of  a  fund  committed  to  them  for  the  purpose  of 
obtaining  recruits  for  said  town  in  such  service,  and  that  they  were 
engaged  in  that  work  and  employed  one  Dunton  as  their  agent,  who 
was  authorized  by  them  to  employ  the  plaintiff  in  their  behalf,  and  did 
so  employ  him,  agreeing  to  pay  $550  for  each  recruit  that  he  should 
obtain  to  the  number  of  two  or  three  ;  and  that,  if  no  previous  author- 
ity had  been  given  to  Dunton  to  employ  the  plaintiff  in  their  behalf, 
they  ratified  the  employment  of  the  plaintiff  after  being  informed  that 
he  had  procured  two  recruits  and  secured  their  enlistment  upon  the 
quota  of  Hawley,  and  agreed  to  pay  him  $1,100  therefor.  There  was 
conflicting  evidence  in  respect  to  these  matters,  and  the  defendants 
also  introduced  evidence  tending  to  show  that,  if  the  defendants 
made  a  formal  ratification  of  the  act  of  Dunton  in  emplo3dng  the 
plaintiff,  it  was  done  under  a  misapprehension  and  mistake  as  to 
material  facts,  referred  to  in  the  prayers  for  instructions. 

The  defendants  requested  the  following  instructions,  amongst 
others : 

I.  Services  rendered  for  hire,  as  a  broker  or  agent,  in  procuring 
recruits  and  enlisting  them  in  the  military  service  by  one  who  had  no 

^Accord:    Hammond  v.  Hannin,  21  Mich.  374. 

Under  a  statute  providing  "that  no  person  shall  be  bound  as  the  surety  of 
another  by  the  act  of  an  agent,  unless  the  authority  of  the  agent  is  in  writing, 
signed  by  the  principal,"  it  was  held  that  an  unauthorized  contract  of  surety- 
ship may  be  orally  ratified.    Ragan  v.  Chanault,  78  Ky.  545. 


346  RATIFICATION. 

other  interest  in  filling  the  quota  of  the  town  toward  which  they  were 
credited,  do  not  furnish  a  legal  cause  of  action  to  recover  the  price. 

2.  Ratification  is  not  effectual  unless  made  with  full  knowledge 
of  all  material  facts.  In  this  case,  it  would  be  a  material  misappre- 
hension if  the  defendants  supposed  Dunton  waived  any  claim  in  his 
own  behalf,  in  favor  of  the  plaintiff,  or  if  the  plaintiff's  agent  misrep- 
resented the  day  of  putting  in  the  men,  and  there  was  meanwhile  a 
change  of  price. 

3.  If  there  was  such  a  material  mistake,  it  makes  no  difference 
how  it  arose,  or  whether  the  defendants  might  have  ascertained  the 
contrary  to  be  true. 

The  judge  declined  to  give  the  first  of  the  above  instructions;  he 
gave  the  second,  adding,  after  the  words  :  "in  favor  of  the  plaintiff," 
the  following  words :  '"when,  in  fact  he  had  not  done  it ;"  and  he  gave 
the  third,  adding  at  the  end,  "unless  it  arose  from  the  negligence  of 
the  defendants." 

The  jury  returned  a  verdict  for  the  plaintiff,  with  $1,201.75  dam- 
ages ;  and  the  defendants  alleged  exceptions. 

BiGELOW,  C.  J. —  *  *  *  The  general  rule  is  perfectly  well  set- 
tled, that  a  ratification  of  the  unauthorized  acts  of  an  agent,  in  order 
to  be  effectual  and  binding  on  the  principal,  must  have  been,  made 
with  a  full  knowledge  of  all  material  facts,  and  that  ignorance,  mis- 
take or  misapprehension  of  any  of  the  essential  circumstances  relating 
to  the  particular  transaction  alleged  to  have  been  ratified  will  absolve 
the  principal  from  all  liability  by  reason  of  any  supposed  adoption  of 
or  assent  to  the  previously  unauthorized  acts  of  an  agent.  We  know 
of  no  qualification  of  this  rule  such  as  was  engrafted  upon  it  in  the 
instructions  given  to  the  jury  in  the  present  case.  Nor,  after  con- 
siderable research,  have  we  been  able  to  find  that  such  qualification 
has  ever  been  recognized  in  any  approved  text  writer  or  adjudicated 
case.  And,  upon  consideration,  it  seems  to  us  to  be  inconsistent  with 
sound  principle. 

Ratification  of  a  past  and  completed  transaction,  into  which  an 
agent  has  entered  without  authority,  is  a  purely  voluntary  act  on  the 
part  of  the  principal.  No  legal  obligation  rests  upon  him  to  sanction 
or  adopt  it.  No  duty  requires  him  to  make  inquiries  concerning  it. 
Where  there  is  no  legal  obligation  or  duty  to  do  an  act,  there  can  be 
no  negligence  in  an  omission  to  perform  it.  The  true  doctrine  is  well 
stated  by  a  learned  text  writer :  "If  I  make  a  contract  in  the  name  of 
a  person  who  has  not  given  me  an  authority,  he  will  be  under  no  ob- 
ligation to  ratify  it.  nor  will  he  be  bovmd  to  the  performance  of  it." 
I  Livermore  on  Agency  44.  See  also  Paley  on  Agency  171,  note  o. 
Whoever,  therefore,  seeks  to  procure  and  rely  on  a  ratification  is 
bound  to  show  that  it  was  made  under  such  circumstances  as  in  law 
to  be  binding  on  the  principal,  especially  to  see  to  it  that  all  material 
facts  were  made  known  to  him.  The  burden  of  making  inquiries  and 
of  ascertaining  the  truth  is  not  cast  on  him  who  is  under  no  legal 


'vliO   iS 

is  not 

'.vithin  the  reach  ' •  !,> 

act-iun  whicli  he  seeks  to  -o 

■  .'K-.rborize  it,  and  i'^,  fm  ^ 

lOt  mean  to  • 

hut  his  eyes 
'■  control,  an  ' 
'  horized 
:  i?  that 

'ized  caniioi 
1  ,  charged  ha  ,  ,        _      _  .     .  .    , 

rial  tacts,  .althoug-h  he  niay  have  wholly  omitted  to  make 
other  persons  concerning  them,  and  his  ignorance  and  m; 
sion  initrht  have  been  enlightened  and  corrected  by  the  ; 

'lis  part  to  ascertain  them.     The  mistake  at  the  ir 
p  a«=i'.'npticn  that  any  ?nrh  diligerce  was  required 
^s  point,  the  stated  in  a  v 

1  the  jury'  to  :  ■  rig-lits  and 

parties. 


ELLIOTT  N-  r'Rn^l^nFP   rr 

d  instruction  gi\  irt  at  thi 

follows:  ""If  a  m.  businv='>. 

ersons  for  his  or  their  benelit,  and  i' 
'^'^  the  fruits  of  his  agency  he  th  •   ■' 
!iim  who  transacts  the  businc 


■  :,  but  a.'5  lilt  iiicad  oi  i>oth  paiiies,  Oi  ot  eii 


i^ect  see  ingrahaiT' 


^.    i<.atiiicaUori 

f  nil  material  fr.. 

ion  if  tlv. 

3-    H 

trav 


has  ever 
case,    A'l 
-ound  Di- 


n  Uiey  were 
the  nrice. 


■ciTiy  claim  in  his. 
. . .  I .  li  's  agent  misrep- 
Te  was  meanwhile  a 

:\  it  makes  no  difference 
have  ascertained  the 

>!  the  above  instructions;  he 

■s:  "in  favor  of  the  plaintiff," 

I   -       had  not  done  it;"  and  he  gave 

'-om  the  negligence  of 

tor  tiie  piaintiii,  with  $1,201.75  dam- 

'd  exception? 

r.       ■-■•■->  -rfectly  well  set- 

Ti  agent,  in  order 

'  '  M,  must  have  been  made 

:,cu^ii.:,  ••'■]  that  ignorance,  mis- 

of  the  e-  re  um  stances  relating 

' ';t>!  .1'  '  _n  ratified  will  absolve 

; ;        .1     :    r      supposed  adoption  of 

iithorized  acts  of  an  agent.    We  know 

such  as  was  engrafted  upon  it  in  the 

lUt  present  case.     Nor,  after  con- 

.  1.  able  to  find  that  such  qualification 

•  approved  text  writer  or  adjudicated 

■ "~  "    us  to  be  inconsistent  w'lh 


4 


a.ieame>. 


bound  to  show  that  u 
to  he  binding  on  t^- 
facts  were  made  k 
-certaining  tl- 


tion,  into  which  an 
voluntary  act  on  tl^e 
^^aiion  rests  upon  him  to  sanr' 
1  >  make  inquiries  concerning  it. 
!ty  to  do  an  act,  there  can  be 
Ti, .    ■■-e  doctrine  is  well 
t  in  the  name  of 
be  mider  no    ' 
ronnance  of 
Agency  171, 
on  a  ratifi' 
circumstances  as  in  Jaw 
'"^  to  it  that  all  m.aterial 
uaking  inquiries  and 
'lo  is  under  '      '    "' 


REQUISITES.  347 

obligation  to  assume  a  responsibility,  but  rests  on  the  party  who  is 
endeavoring  to  obtain  a  benefit  or  advantage  for  himself.  This  is  not 
only  just,  but  it  is  practicable.  The  needful  information  or  knowl- 
edge is  always  within  the  reach  of  him  who  is  either  party  or  privy  to 
a  transaction  which  he  seeks  to  have  ratified,  rather  than  of  him  who 
did  not  authorize  it,  and  to  the  details  of  which  he  may  be  a  stranger. 

We  do  not  mean  to  say  that  a  person  can  be  wilfully  ignorant  or 
purposely  shut  his  eyes  to  means  of  information  within  his  own  pos- 
session and-  control,  and  thereby  escape  the  consequences  of  a  ratifi- 
cation of  unauthorized  acts  into  which  he  has  deliberately  entered  ; 
but  our  opinion  is  that  ratification  of  an  antecedent  act  of  an  agent 
which  was  unauthorized  cannot  be  held  valid  and  binding,  where  the 
person  sought  to  be  charged  has  misapprehended  or  mistaken  mate- 
rial facts,  although  he  may  have  wholly  omitted  to  make  inquiries  of 
other  persons  concerning  them,  and  his  ignorance  and  misapprehen- 
sion might  have  been  enlightened  and  corrected  by  the  use  of  dili- 
gence on  his  part  to  ascertain  them.  The  mistake  at  the  trial  con- 
sisted in  the  assumption  that  any  such  diligence  was  required  of  the 
defendants.  On  this  point,  the  instructions  were  stated  in  a  manner 
which  may  have  led  the  jury  to  misunderstand  the  rights  and  obliga- 
tions of  the  parties. 

Exceptions  sustained.^ 


ELLIOTT,  C.  J.,  IN  CROWDER  et  al.  v.  REED. 
1881.     Supreme  Court  of  Indiana.     80  Ind.  i. 

The  third  instruction  given  by  the  court  at  the  request  of  the  ap- 
pellee is  as  follows :  "If  a  man  transacts  business  for  another,  or  for 
other  persons  for  his  or  their  benefit,  and  the  principal  accepts  the 
benefit  and  the  fruits  of  his  agency  he  thereby  ratifies  and  adopts  the 
agency  of  him  who  transacts  the  business  and  is  bound  by  his  acts 
and  the  legal  consequences  thereof  in  the  transaction  of  such  business. 
Therefore,  if  James  B.  Patton,  acting  without  authority  from  any 
one,  but  as  the  friend  of  both  parties,  or  of  either  party,  procured  for 

^Accord:  Trustees  of  Easthampton  v.  Bowman,  136  N.  Y.  521;  Daley  v. 
Iselin,  218  Pa.  St.  515;  Woods  v.  Palmer,  151  Mich.  30. 

"The  second  request  sought  to  incorporate  into  the  doctrine  of  ratification 
a  new  element,  namely,  that,  in  order  to  make  a  valid  ratification,  the  principal 
must  have  known,  not  only  all  the  facts,  but  also  the  legal  effect  of  the  facts, 
and  then,  with  a  knowledge  both  of  the  law  and  facts,  have  ratified  the  con- 
tracts by  some  independent  and  substantive  act.  This  request  also  was  prop- 
erly refused.  It  is  sufficient  if  a  ratification  is  made  with  a  full  knowledge  of 
all  the  material  facts."  Allen,  J.,  in  Kelley  v.  Newburyport,  etc.,  R.  R.  Co., 
141  Mass.  496,  4q8.  To  same  effect  see  Ingraham,  J.,  in  Hanks  v.  Drake,  49 
Barb.  (N.  Y.)   186,  202. 


348  RATIFICATION. 

the  plaintiffs  the  notes  and  mortgages  sued  on,  and  they  accepted  the 
same,  they  thereby  ratified  all  of  Patton's  acts  in  and  about  the  pro- 
curing of  said  notes  and  mortgage,  and  if  said  notes  and  mortgage 
were  given  by  the  defendant  upon  the  agreement  or  understanding 
that  her  son,  William  Reed,  was  not  to  be  prosecuted,  then  the  notes 
and  mortgage  are  void." 

This  instruction  is  subject  to  serious  objection.  If  Patton  was  the 
agent  of  the  appellee  and  not  of  appellants,  the  doctrine  of  ratification 
does  not  apply.  If  he  was  not  avowedly  acting  as  their  agent,  they 
cannot  be  said  to  have  ratified  his  act.  The  law  upon  this  subject  is 
thus  laid  down  by  a  text-writer :  "One  other  consideration  is  impor- 
tant to  be  borne  in  mind.  It  is  that  a  ratification  can  only  be  effectual 
between  the  parties,  when  the  act  is  done  by  the  agent  avowedly  for 
or  on  account  of  the  principal,  and  not  when  it  is  done  for  or  on 
account  of  the  agent  himself,  or  of  some  third  person."  Story 
Agency,  §  251a.  In  Meiners  v.  Munson,  53  Ind.  138,  this  doctrine  is 
approved  and  the  following  statement  of  the  rule  is  quoted  from  i 
Chitty  Cont.  293 :  "But  where  the  party  making  the  contract  had  no 
authority  to  contract  for  the  third  person,  and  did  not  profess,  at  the 
time,  to  act  for  him,  it  seems  that  the  subsequent  assent  of  such  third 
party,  to  be  bound  as  principal,  has  no  operation."  Under  the  evi- 
dence in  this  case  the  instruction  was,  upon  this  point,  entirely  too 
broad.  If  Patton  was  the  appellee's  agent  and  the  instruction  extends 
to  both  parties,  for  the  language  is  "either  party."  the  appellants, 
whose  interests  were  hostile,  could  not  be  justly  said  to  have  ratified 
his  acts  by  receiving-  and  retaining  what  was  tendered  them. 

The  instruction  leaves  out  of  consideration  the  element  of  knowl- 
edge. If,  as  appellants  claimed,  the  notes  and  mortgage  were  deliv- 
ered to  them  in  consideration  that  they  would  pay  William  Reed's 
debt  to  the  express  company  and  release  him,  they  would  not  be 
bound  by  an  act  of  Patton,  of  which  they  had  no  knowledge.  This 
would  certainly  be  so  if  he  was  the  appellee's  agent  and  not  theirs. 
The  instruction  declares  that  they  would  be  bound  by  a  subsequent 
ratification  whether  Patton  was  their  agent,  or  was  the  agent  of  the 
appellee,  and  is,  therefore,  plainly  erroneous. 

It  is  in  general  true,  that  a  principal  is  not  bound  where  the  rati- 
fication is  made  in  ignorance  of  material  facts.  Manning  v.  Gasharie, 
27  Ind.  399.  If  the  appellants  acted  in  ignorance  of  what  Patton  had 
said  to  the  appellee,  and  in  good  faith  believed  that  the  notes  and 
mortgage  were  executed  to  them  in  consideration  of  their  payment 
of  the  debt  of  William  Reed  to  the  express  company,  and  his  release 
from  liability  to  them  to  the  extent  of  the  sum  evidenced  by  the  notes 
and  mortgage,  they  cannot  be  justly  said  to  have  ratified  an  illegal 
agreement  of  which  they  were  entirely  ignorant.^ 

^Accord:  Commercial  Bank  v.  Jones,  18  Tex.  811;  Wycoff  v.  Davis,  127 
la.  399. 


?49 
SHOxMNGER  amd  i\ 

1889.     Supreme  Court  of  Err* 

57  Conn.  42.    ' 

Action  to  recover  for  a  .^ht  to  t'- 

of  Waterbury,  and  tried  to  ..;  '^radsiic... 

found  and  judgment  rendered  and  ap: 

Imt.    The  case  i. 

.*iis,  J. — The  pla,  -ars  de^^ 

mubicai  instruments  at  iSt  't\  a  bra 

bury,  which  from  1880  to  '  ■;  was  un 

and  management  of  one  Henry  R.  Day,  the  general  agent  of  the 
plaintiff.     Day  was  paid  a  regular  salary  and  received  in  addition 
a  commission  on  all  sales  made  by  him  for  the  plaintiffs.     While 
as  such  agent  he  sold  from  the  store  in  Waterbury  one  of 
iintiff'?  pianos  to  the  defendant  for  the  agreed  price  of  three 

•^ed  to  be  paid  for  wholly  by  certain 

;  •  due  from  Day  to  the  defendant  on 

future  stock  transactions  between  the  defendant  and  Day  on  his 

'->ri'''.«:e  account.     The  defendant  had  been  for  a  considerable  time 

ed  in  the  business  of  a  stock  broker,  and  as  such,  had  had 

'.iS  dealings  with  Day.    Tl:      '      '  Ills  had  no  actual  ' '  -Ige 

sale  of  the  piano  until  a.  had  left  their  i-  -.t. 

He  iiad  reporter!  to  them  that  tiic  piano  w.- 
ant.  But  the  finding  is  explicit  tha'  the  \.. 
of  the  terms  of  the  sale  after  ;   their 

the  bringing  of  this  suit.    The  u       -  .....t  earned  ... 
stock  transactions  on  Day's  account  to  the  amount 
r.i  '     ,ghty-fiv€  dollars,  which  were  credited  by  ^' 
'f.,  but  not  paid  over  to  the  plaintiffs,     h^ 
■  ■  the  plaintifi  sums,  :v,  ;vc 

'  '•  h  all  the  pi  ver  rec( :  -lice 

piano.     Day  was  a  detauiter  in  his  «  piain- 

aii  amount  exceeding  five  thousan-l  < 

manifest  wrong  and  injustice  pe:  'its 

'  fendant  and  Day,  make  us  r  ^^f 

'ble  to  the  remedy  cJiosen  by 

m 

iiy  may   fail   m  obtainiv  '■'■ 

arises  from  a  mistake  as  f  -j 

.ffs  were  informed  of  tl  -  ict 

....  .1,,-.  gj^ig  Qf  .1, ey 

the  arr;  •  :k 

:iai.  tne)   ha.  m  ignorance  o5 


348 


the  pianilnis  tiie  not' 
same,  they  thereby  r 
curing  of  said  note'- 
were  given  by  the  ' 
that  her  son,  Wi' 
and  mortgage  a: 
This  instructv 
agent  of  the  , 
does  not  api 
cannot  1 
thus  lai' 
tant  to  1 
betweev; 
or  on  ; 


ana  mc 


n\ 


and 


edc- 

ercu  n  •  - 
debt  to 
bound  by  a- 
would  certn 
Thp  iTi~tr:v'[ 
'T '■;>  n(.i:i5i    vv: 

.  and  is, 

,a  gener, 
fic.jtioii  is  made  . 
2y  fnd.  399.    If 
said  to  the  app-. 
morrjrnge  were  > 
ot  iV,r  debt  of  Vv 
froi-^--  liability  to  thei' 
and  mortgage,  they 
agreement  of  which 

'  Accnrd:    Commercia!  jB. 


ecuted,  then  the  notes 

objection.    If  Patton  was  the 
1  iuts,  the  doctrine  of  ratification 
dly  acting  as  their -agent,  the) 
act.    The  law  upon  this  subject  is 
One  other,  consideration  is  impor- 
:it  a  ratification  can  only  be  effectual 
is  done  by  the  agent  avowedly  for 
md  not  when  it  is  done  for  or  on 
L,   or  of   some  third  person."     Story 
^'.  Munson,  53  Ind.  T38,  this  doctrine  is 
'  ment  of  the  rule  is  quoted  from   '■ 
■  party  making  the  contract  had  n  ■ 
!  per.son,  and  did  not  profess,  at  the 
._ :  the  subsequent  assent  of  such  third 
xil,  has  no  operation."   Under  the  evi 
^tion  was,  upon  this  point,  entirely  tc^^ 
el  lee's  agent  and  the  instruction  extend 
is  "either  party,"  the  appellani 
('  not  be  justly  said  to  have  ratifie 
:;•  what  was  tendered  them. 
:onsideration  the  element  of  know! 
.'d,  the  notes  and  mortgage  were  deli\ 
tnat  they  would  pay  William  Reed' 
;d  release  him,  they  would  not  Ik 
'lich  they  had  no  knowledge.    Th: 
ihf*  appellee's  agent  and  not  their- 
idd  be  bound  by  a  subsequen 
agent,  or  was  the  agent  of  tli 
erroneous. 

'  "nal  is  not  bound  where  the  rati 
'al  facts.    Manning  v.  Gashariv 
(  ignorance  of  what  Patton  ha' 
.:h  believed  that  the  notes  an> 
■of  their  paA 
■V,  -vd  h^=  r 
-he  sum 
said  to  1  _. 
y  ignorant.' 

8  Tex.  8ri;  Wycoff  v.  Da\ 


« 


I 


REQUISITES.  349 

SHONINGER  and  Another  v.  PEABODY. 

1889.     Supreme  Court  of  Errors  of  Connecticut. 
57  Conn.  42. 

Action  to  recover  for  a  piano  sold ;  brought  to  the  district  court 
of  Waterbury,  and  tried  to  the  court  before  Bradstreet,  J.  Facts 
found  and  judgment  rendered  for  the  plaintiffs,  and  appeal  by  the 
defendant.    The  case  is  fully  stated  in  the  opinion. 

LooMis,  J. — The  plaintiffs  have  been  for  many  years  dealers  in 
musical  instruments  at  New  Haven,  with  a  branch  store  at  Water- 
bury,  which  from  1880  to  October,  1886,  was  under  the  sole  charge 
and  management  of  one  Henry  R.  Day,  the  general  agent  of  the 
plaintiff.  Day  was  paid  a  regular  salary  and  received  in  addition 
a  commission  on  all  sales  made  by  him  for  the  plaintiffs.  While 
acting  as  such  agent  he  sold  from  the  store  in  Waterbury  one  of 
the  plaintiff's  pianos  to  the  defendant  for  the  agreed  price  of  three 
hundred  dollars,  which  was  agreed  to  be  paid  for  wholly  by  certain 
commissions  that  mignt  become  due  from  Day  to  the  defendant  on 
future  stock  transactions  between  the  defendant  and  Day  on  his 
private  account.  The  defendant  had  been  for  a  considerable  time 
engaged  in  the  business  of  a  stock  broker,  and  as  such,  had  had 
previous  dealings  with  Day.  The  plaintiffs  had  no  actual  knowledge 
of  the  sale  of  the  piano  until  after  Day  had  left  their  employment. 
He  had  reported  to  them  that  the  piano  was  rented  to  the  defend- 
ant. But  the  finding  is  expUcit  that  the  plaintiffs  were  informed 
of  the  terms  of  the  sale  after  Day  left  their  employ,  and  before 
the  bringing  of  this  suit.  The  defendant  earned  commissions  in  his 
stock  transactions  on  Day's  account  to  the  amount  of  one  hundred 
and  eighty-five  dollars,  which  were  credited  by  Day  on  the  piano 
account,  but  not  paid  over  to  the  plaintiffs.  In  the  year  1886  the 
defendant  paid  the  plaintiffs  several  sums,  aggregating  seventy-five 
dollars,  which  is  all  the  plaintiffs  ever  received  towards  the  price 
of  the  piano.  Day  was  a  defaulter  in  his  dealings  with  the  plain- 
tiffs to  an  amount  exceeding  five  thousand  dollars. 

The  manifest  wrong  and  injustice  perpetrated  upon  the  plaintiffs 
by  the  defendant  and  Day,  make  us  regret  that  the  principles  of 
law  applicable  to  the  remedy  chosen  by  the  plaintiffs  are  not  flexible 
enough  to  afford  relief.  But  the  greatest  good  to  the  greatest  num- 
ber requires  adherence  to  sound  general  principles,  even  though  in 
a  given  case  a  party  may  fail  in  obtaining  redress.  The  whole 
trouble  in  this  case  arises  from  a  mistake  as  to  the  plaintiff's  remedy. 

When  the  plaintiffs  were  informed  of  the  terms  of  the  contract 
made  by  their  agent  for  the  sale  of  the  piano  to  the  defendant,  they 
had  an  election  to  repudiate  the  arrangement,  and  by  tendering  back 
what  they  had  received  in  ignorance  of  the  terms  of  the  sale,  and 


350  RATIFICATION, 

demanding  the  piano,  they  could  have  recovered  it  by  an  action  of 
replevin,  or  obtained  its  value  in  trover.  But,  knowing  the  terms 
of  the  sale,  they  elected  to  sue  in  assumpsit  on  the  contract  for  the 
agreed  price,  and  thereby  they  affirmed  the  contract  and  ratified 
the  act  of  the  agent,  precisely  as  if  it  had  been  expressly  approved 
upon  being  reported  to  them  by  the  agent  or  the  defendant;  and 
in  contemplation  of  law  a  subsequent  ratification  and  adoption  of 
an  act  has  relation  back  to  the  time  of  the  act  and  is  tantamount  to 
a  prior  command,     i  American  Leading  Cases,  4th  ed.,  592. 

The  argument  for  the  plaintiffs  (though  it  is  not  so  stated)  seems 
really  to  involve  the  fallacious  assumption  that  the  plaintiffs  could 
affirm  the  contract  in  part  and  repudiate  it  in  part,  that  is,  that  the 
contract  is  to  be  treated  as  good  for  the  agreed  price,  but  bad  as 
to  the  agreed  mode  of  payment.  But  the  law  requires  a  contract 
to  be  affirmed  or  repudiated  in  its  entirety.  Shepard  v.  Palmer,  6 
Conn.  100;  Newell  v.  Hurlburt,  2  Vermont  351.  See  also  the  cases 
hereinafter  cited. 

There  was  no  contract  at  all  relative  to  the  piano  except  the  one 
made  by  Day  as  their  agent,  and  when  the  plaintiffs,  knowing  the 
facts,  sued  on  that  contract,  they  affirmed  it  in  every  essential  par- 
ticular both  as  to  price  and  as  to  the  terms  of  paying  the  price. 

The  leading  case  on  this  subject  is  Smith  v.  Hodson,  4  T.  R, 
211,  where  it  was  held  that  if  a  bankrupt,  on  the  eve  of  his  bank- 
ruptcy, fraudulently  delivered  goods  to  one  of  his  creditors,  the 
assignees  may  disaffirm  the  contract  and  recover  the  value  of  the 
goods  in  trover ;  but  if  they  bring  assumpsit,  they  affirm  the  con- 
tract with  all  its  incidents,  so  that  a  creditor  may  even  set  off  his 
debt ;  and  the  principle  established  in  that  case  has  ever  since  been 
considered  to  rest  upon  an  impregnable  foundation,  that  the  exist- 
ence of  the  contract  could  not  be  affirmed  to  promote  the  purpose  of 
a  recovery,  and  at  the  same  time  be  treated  as  a  nullit}-  in  order  to 
shut  out  the  opposite  party  from  a  defense  otherwise  open  to  him. 

In  Butler  v.  Gable,  i  Watts  &  Serg.  108,  the  trustees  in  a  do- 
mestic attachment,  which  is  a  proceeding  in  the  nature  of  a  com- 
mission of  bankruptcy,  sued  the  defendant  in  assumpsit  for  the 
amount  of  a  check,  which  had  been  transferred  to  him  by  the  party 
against  whom  the  attachment  issued,  subsequently  to  its  date,  and 
relied  on  the  invalidity  of  the  transfer  as  ground  of  recovery.  But 
it  was  held  by  the  court  that,  whatever  the  result  might  have  been 
had  the  action  been  laid  in  tort,  the  necessary  result  of  laying  it 
in  contract  was  to  affirm  the  transaction  on  which  it  was  founded, 
and  entitle  the  defendant  to  show  that  he  had  received  the  check 
in  payment  of  a  debt. 

For  the  same  reason  it  has  long  been  held  that  a  principal  who 
seeks  to  enforce  a  sale  made  by  his  agent,  cannot  ordinarily  allege 
that  the  agent  exceeded  his  instructions  in  warranting  the  goods, 


f;foui?i 


accept  uie  couiraci  us 


We  will  select  a  iew  only  oi  the  numerous  cases  a- 
pies  upon  which  we  base  our  .ninicit 

One  of  the  most  recent  c 
^'       -,  decided  in  August. 
1  in  Vol.  6  of  Nev 
y  Dan  forth.  J.,  i 
jtion  is  assuinp.sK 

that  he  received  trorn  the  plamiiii'  : 
.     no  question  as  to  the  price.     This  ma        .. 
.inst  him;  and  though  technically  it  does  not  char 
< 'J  proofj  it  devolves  upon  him,  if  he  would  avoid  the  i c- 
to  give  some  reason  why.    The  explanation  offered  by  tl. 
ant  is.  tliat  though  he  received  the  '     '  he  plaintiit,  lie  .- 

ceivP'J  Ih'.ni  Vjy  virtue  of  an  expre:-  v/ith  an  agent  <.  . 

^an  of  tlie  plaintiff,  one  was  that 

.^  'fa  hke  kind,  which  the  •  .id,  should 

be  taken  in  payment.  This  agreement  with  the  agent  is  not  ques- 
tioned, but  the  answer  to  it  is  two- fold:  (i)  that  the  agent  had  no 
authority  to  make  such  a  contract;  and  (2)  that  the  contract  under 
',  '  '  '     '       ction  is  sought  to  be  ■      '  ■      .        ..  ,  ^j^-}^ 

;.  thou9;b  i"  tcome  de  itv  of 

the  a^tiit.    As> 
ity  to  make  the 

upon  that  point — stiii  it  does  n< 
p,  ,1   >  >i^iy  assumed  the  authorit; 
:ontract.    Waiving  for  1" 
xw.s   wns  the  only  contract  having   ^ne 
the  contract  tmder  which  he  arfed  and 
is.     It  is  qr- 
■  I  tract  he  did 
t  ana  hold  the  remainder  w  j 

o.     Nor  can  he  be  h'^''-"  •    • 
•Juded  by  the  expres- 

!n    Smith    v.     ''^' ,    j     \\i:,aiiuii     -^^j,    a  ■     uic 

lefit  of  the  :s  was  held  to  have  their 

i  evidence  a.-  nit  broi:.  to  its 

lan  V.   Goodeil   et  ai.,  56  Ic  r  the 

!  .'(0  and  mortgage  took  nev.  -Ti  'n 

their  being  signed  by  t; 
u  'L  u  I  i  ly  to  the  former  note.  - 
his  princifian    to   cancel  the  ni' 
■  idgfmeni 


■ieiiiauJing  the  ■ 
replevin,  or  obi 
"f  the  sale,  they  ele 
agreed  price,  ar^' 
the  act  of  the  a 
upon  being  rej. 
in  contemplatir- 
an  act  has  t- 
a  prior  con. 
The  argi  • 
really  t'-*  i' 
affirm  • 
contra  ( 
to  the 
to  ' 


en.v, 

a  reco  \ . 
shut  oiv 

In  Butie- 
mestic  attacin.,,. 
mission  of  bank 
amount  of  a  ch:  . 
.^cT^ip^-.r  whom  t 


action  been 

Li  act  was  to  ai.a.; 

cipcl  entitle  the  defendai 
^  n  payment  of  a  deh" 
For  the  same  rer 
seeks  to  enforce  a  ^ 
that  the  agent  exct 


covered  it  by  an  action  . 
•    But,  knowing  the  terr 
-it  on  tlie  contract  for  tli 
.    vi   the  contract  and  ratifieu 
'  had  been  expressly  approved 
agent  or  the  defendant;  and 
it  ratification  and  adoption  of 
of  the  act  and  is  tantainount  t 
Jang  Cases,  4th  ed.,  592. 
1^ though  it  is  not  so  stated)  seen 
assumption  that  the  plaintiffs  cou! 
cpudiate  it  in  part,  that  is,  that  ti: 
;  for  the  agreed  price,  but  bad  .. 
But  the  law  requires  a  contra. 
iii  its  entirety.     Shepard  v.  Palmer,  6 
'ft,  2  Vermont  351.    See  also  the  cases 

all  relative  to  the  piano  except  the  on 
.  and  when  the  plaintiffs,  knowing  tl- 
they  affirmed  it  in  every  essential  pai 
as  to  the  terms  of  paying  the  price, 
subject  is  Smith  v.  Hodson,  4  T.  V. 
if  a  bankrupt,  on  the  eve  of  his  ban! 
cd  goods  to  one  of  his  creditors,  t1: 
contract  and  recover  the  value  of  tl 
bring  assumpsit,  they  affirm  the  coi^ 
'Hat  a  creditor  may  even  set  off  h' 
,d  in  that  case  has  ever  since  bee 
ble  foundation,  that  the  exi? 
ned  to  promote  the  purpose  ( 
nt 'd  as  a  nullity  in  order  : 
I  'ltrcn'?e  otherwise  open  to  hin 
S;  Serg.  108,  the  trustees  in  a  d< 
oceeding  in  the  nature  of  a  cor 
'^  defendant  in  assumpsit  for  tl: 
him  by  the  pari 
y  to  its  date,  a.v. 
of  recovery.    Bv= 
might  have  bee 
•J  necessary  result  of  laying 
don  on  which  it  was  foundei 
.'iiat  he  had  received  the  cher 

'een  held  that  a  principal  wh' 
:  't  ordinarily  ; 
ranting-  the  i 


REQUISITES.  351 

because  he  must  accept  the  contract  as  a  whole  if  he  means  to  rely 
on  any  portion. 

The  general  consensus  of  judicial  opinion  in  the  United  States 
is  in  perfect  accord  with  authorities  cited  from  the  English  courts. 
We  will  select  a  few  only  of  the  numerous  cases  affirming  the  princi- 
ples upon  which  we  base  our  opinion. 

One  of  the  most  recent  cases  is  that  of  Billings,  Taylor  &  Co.  v. 
Mason,  decided  in  August,  1888,  by  the  supreme  court  of  Maine, 
reported  in  Vol.  6  of  New  England  Reporter,  791.  The  case  is 
stated  by  Danforth,  J.,  in  giving  the  opinion  of  the  court,  as  follows : 
"The  action  is  assumpsit  upon  an  account  annexed.  The  defendant 
admits  that  he  received  from  the  plaintiff  the  goods  charged  and 
makes  no  question  as  to  the  price.  This  makes  a  prima  facie  case 
against  him;  and  though  technically  it  does  not  change  the  burden 
of  proof,  it  devolves  upon  him,  if  he  would  avoid  the  responsibiUty, 
to  give  some  reason  why.  The  explanation  offered  by  the  defend- 
ant is,  that  though  he  received  the  goods  from  the  plaintiff,  he  re- 
ceived them  by  virtue  of  an  express  agreement  with  an  agent  or 
traveling  salesman  of  the  plaintiff,  one  element  of  which  was  that 
certain  goods  of  a  like  kind,  which  the  defendant  then  had,  should 
be  taken  in  payment.  This  agreement  with  the  agent  is  not  ques- 
tioned, but  the  answer  to  it  is  two-fold :  ( i )  that  the  agent  had  no 
authority  to  make  such  a  contract;  and  (2)  that  the  contract  under 
which  the  action  is  sought  to  be  maintained  was  made  directly  with 
the  plaintiff,  though  in  some  degree  through  the  instrumentality  of 
the  agent.  Assuming,  under  the  first,  that  the  agent  had  no  author- 
ity to  make  the  contract  he  did — and  the  evidence  is  quite  conclusive 
upon  that  point — still  it  does  not  change  the  conceded  fact  that  he 
not  only  assumed  the  authority  to  do  so,  but  did  actually  make 
such  a  contract.  Waiving  for  the  moment  the  second  point  raised, 
this  was  the  only  contract  having  the  assent  of  the  defendant — 
the  contract  under  which  he  acted  and  by  virtue  of  which  he  ob- 
tained the  goods.  It  is  quite  clear  that  the  plaintiff  cannot  hold 
him  upon  a  contract  he  did  not  make,  or  repudiate  the  contract  in 
part  and  hold  the  remainder  valid.  Brigham  v.  Palmer,  3  Allen 
450.  Nor  can  he  be  holden  upon  an  implied  contract,  for  that  is 
excluded  by  the  express." 

In  Smith  v.  Plummer,  5  Wharton  89,  a  contract  made  for  the 
benefit  of  the  defendants  was  held  to  have  been  ratified  by  their 
giving  it  in  evidence  as  a  defense  in  a  suit  brought  contrary  to  its 
terms. 

In  Beidman  v.  Goodell  et  al.,  56  Iowa  592,  an  agent  for  the 
ov.ner  of  a  note  and  mortgage  took  new  notes  for  the  debt,  and  in 
consideration  of  their  being  signed  by  the  wife  of  the  maker,  who 
was  not  a  party  to  the  former  note,  agreed  (without  the  authority 
of  his  principal)  to  cancel  the  mortgage.  His  principal  having 
brought  a  suit  and  taken  judgment  against  the  maker  of  the  new 


352  RATIFICATION. 

notes,  was  held  to  have  ratified  the  agreement,  so  that  he  could  not 
enforce  the  mortgage  which  at  the  time  was  improperly  canceled. 

In  Peninsular  Bank  v.  Hanmer,  14  Mich.  208,  a  contract  was 
entered  into  by  the  cashier  in  behalf  of  the  bank,  by  which  security 
was  given  by  a  debtor  on  long  time  to  a  creditor,  in  the  interest 
and  on  motion  and  arrangement  of  the  cashier,  who,  in  order  to 
procure  the  asset  of  the  creditor,  without  authority  from  the  bank 
made  and  delivered  a  bond  of  indemnity  against  a  prior  mortgage 
on  the  property  covered  by  the  collateral  security.  The  bank  re- 
ceived the  benefit  of  the  transaction  and  defended  the  creditor 
against  a  suit  to  foreclose  the  prior  mortgage.  It  was  held  that, 
having  appropriated  the  benefits,  the  bank  must  affirm  or  rescind 
in  toto;  that  it  could  not  disaffirm  as  to  those  parts  which  impose 
an  obligation  and  affirm  it  so  far  as  it  operated  to  its  advantage,  and 
that  the  entire  arrangement  was  ratified. 

In  Whitlock  v.  Heard,  3  Rich.  88,  the  plaintiff  was  a  carriage 
maker  and  his  shop  was  under  the  management  of  W.  as  his  fore- 
man. W.  owed  the  defendant  by  note  and  made  and  delivered  to 
her  a  buggy  belonging  to  the  plaintiff  in  exchange  for  the  note. 
The  plaintiff  on  hearing  of  this,  disapproved  of  the  arrangement  and 
brought  his  action  for  the  price,  alleging  it  to  have  been  sold.  It 
was  held  that  he  could  not  recover ;  that,  regarding  him  as  having 
adopted  the  contract,  he  would  then  be  only  entitled  to  the  note ;  re- 
garding him  as  having  repudiated  the  contract,  there  would  then 
be  no  sale  of  the  buggy,  and  that  his  remedy  was,  after  demand,  to 
bring  trover. 

In  Berkshire  Glass  Co.  v.  Wolcott,  2  Allen  227,  an  agent  was  in- 
trusted with  chattels  for  a  certain  specified  purpose ;  he  wrongfully 
sold  the  goods  and  received  payment  in  money.  The  principal 
brought  an  action  of  assumpsit  against  the  purchaser  for  the  price. 
It  was  held  that  he  could  not  recover  in  assumpsit,  the  purchaser 
not  having  sold  the  property  and  received  the  money  for  it,  but 
that  the  plaintiff  might  have  recovered  in  action  of  tort.  The  same 
principle  is  recognized  in  Jones  v.  Hoar,  5  Pick.  285.  In  the  case 
at  bar  there  is  no  claim  that  the  defendant  had  sold  the  piano. 

In  Butler  v.  Hildreth,  5  Met,  49,  an  insolvent  conveyed  away  his 
property  in  fraud  of  his  creditors.  The  trustee  brought  a  suit 
against  the  purchaser  to  recover  the  value  of  the  property ;  then 
he  discontinued  that  suit  and  brought  an  action  to  set  aside  the 
sale  on  the  ground  of  fraud.  It  was  held  that,  having  brought 
an  action  ex  contractu,  the  sale  was  affirmed  and  the  latter  action 
could  not  be  maintained. 

In  Marsh  v.  Pier,  4  Rawle  273,  the  defendant  purchased  goods 
from  A  as  agent  of  the  plaintiff,  who  brought  an  action  and  re- 
covered judgment  for  the  price.  Afterwards  the  plaintiff  disavowed 
the  agency  and  brought  replevin  for  the  goods.     It  was  held  that 


affirmance 
icioles 


of  these 


■;ed  the  piaminT 
i;  an  acti"-    ■>'  '    ■  ..    .   -  - 

'ant  in  r-  ;ud  converting  the  goods 

'-■':,-'  •^••■'' for  thei~'     '•"^■••■' opiuK-n 

iscussio?  le  form 

\  icrcncc  ■•s   geiicrauy.  _  As   to   tr. 

,,  it   is  it   to   reconcile   the    cas' 

ill  regard,  however,  to  the  cj 

,      effectual  as  a  ratification  of  their  ; 

:gest  thKs  ciistinction:  that  the  act  of  the  agent  in  paying 
.'debt  with  the  plaintiffs'  goods  could  not,  perhaps,  be 
as  an  act  done  for  or  in  behalf  of  the  principals  at  all 

a  the  p  '  '  name,  and  was  not  properly  ict 

:^]\    c,r>  t  was  no  express  f^ontrnpt  to  '1 

tiic  suit,  a! 
•  except  tile 
received  money  is  undo' 

:.•,,. .1  K,.  numer-  <■•'■•  v 

be  of 
-r  '.T  '--I.  :j'-t;'ilf  c"  "'  xuou:  ; 

;t  rase  <~i*'e''l,  I"*"'  it.  .^S^i 


The 


.inueiy 
lid  not 


as  given  by  ; 
uiid  on  motioi; 
procure  the  as 
made  and  •: 
on  the  pro 
ceived   the 
against  a 
having 
in  '^'' 
an 


>,  a  contract  w 
by  which  securi: 
.>r,  in  the  interr 
iiti,  who,  in  order  \ 
■-.  authority  from  the  bai 
!  a  prior  mortgage 
ty.     The  bank  re- 
iieiended   the   ci 
,;  !ge.     It  was  held 
V,  the  bank  must  affirm  or  resci:' 
!  rm  as  to  those  parts  which  impos.. 
as  it  operated  to  its  advantage,  and 


br 

tl' 


there  i;- 


1k 

sale  Oii  we  gi 

"n  action  ex  c^  ■ 

e  maint. 

.xi  :,il    V.     Pic 

'    as  agent  • 

tl: 


as  a  carnac 

1  !iC  niaii^  'i  \V.  as  his  for 

)y  note  i  .•  and  delivered 

olaintiff  in  exchange  for  the  nd 
lisapproved  of  the  arrangement  a; 
.  alleging  it  to  have  been  sold, 
ver:  that,  regarding  him  as  havi' 

;lien  be  only  entitled  to  the  note ;  r 
red  tlie  contract,  there  would  th' 

at  his  remedy  was   after  demand, 

■icott,  >  Alleii  ^-,.  ^.,  ...,ont  was  i' 
•in  specified  purpose;  he  wrongful 
nent  in  money.     The  princij 
;  I  St  the  purchaser  for  the  pri' 
•^sit,  the  purchas 
money  for  it,  t 
'vered  in  action  of  tort.    The  sai 
\     Hoar,  5  Pick.  285.     In  the  en 
lendant  had  sold  the  piano. 
"  ir  nlvcnt  conveyed  away  I 
i      trustee  brought  a  sv 
(he  property;  th' 
:\  to  set  aside  1 
tiiat.  having  bt 
1  :i:M  th€  Ia!:U:r 


ho  brought  an  action  and  r 
'    the  plaintiff  d^sa^ 
.•ds.     It  was  he] 


i 


REQUISITES.  353 

the  record  of  the  former  judgment  was  conclusive  as  an  affirmance 
of  the  sale. 

A  vast  number  of  other  cases  establishing  the  same  principles 
might  be  cited,  but  the  above  will  suffice.  No  conflicting  cases  were 
cited  by  the  plaintiffs,  unless  Steward  et  al.  v.  Woodward,  50  Ver- 
mont 78,  and  Squires  v.  Barber,  37  Vermont  558,  are  to  be  so  re- 
garded. 

In  the  first  of  these  cases  an  agent  of  the  plaintiffs,  who  were 
merchant  tailors,  owed  the  defendant,  who  was  a  physician,  a  private 
debt  for  medical  services  for  himself  and  family,  and  being  unable 
to  pay  money,  persuaded  the  defendant  to  take  a  suit  of  clothes  out 
of  the  plaintiff's  shop  in  part  payment,  which  was  done.  The 
court  allowed  the  plaintiff  to  recover  of  the  defendant  the  price  of 
the  suit  in  an  action  of  book  debt,  on  the  ground  that  the  act  of 
the  defendant  in  receiving  and  converting  the  goods  to  his  own  use 
raised  an  implied  promise  to  pay  for  them.  The  opinion  of  the  court 
is  very  brief  and  contains  no  discussion  as  to  the  form  of  remedy 
and  no  reference  to  the  authorities  generally.  As  to  the  form 
of  remedy,  it  is  manifestly  difficult  to  reconcile  the  case  with 
some  others  we  have  cited.  In  regard,  however,  to  the  question 
whether  the  suit  would  be  effectual  as  a  ratification  of  their  agent's 
act,  we  suggest  this  distinction :  that  the  act  of  the  agent  in  paying 
his  private  debt  with  the  plaintiffs'  goods  could  not,  perhaps,  be 
regarded  as  an  act  done  for  or  in  behalf  of  the  principals  at  all 
nor  even  in  the  principals'  name,  and  was  not  properly  a  contract 
of  sale  at  all,  so  that  there  was  no  express  contract  to  be  affirmed 
by  the  bringing  of  the  suit,  and  nothing  to  prevent  the  raising  of 
the  implied  promise  except  the  fact  that  the  defendant  had  not  sold 
the  goods  and  received  money  thereon.  It  is  undoubtedly  a  sound 
doctrine,  established  by  numerous  authorities,  that  to  make  a  ratifi- 
cation effectual  it  must  be  of  some  act  done  or  engagement  made 
as  agent  for  or  on  behalf  of  the  person  whom  it  is  alleged  to  bind. 

The  other  case  cited,  from  37  Vermont,  558,  was  very  similar  in 
the  principles  that  apply.  An  agent  of  the  plaintiffs,  who  had  au- 
thority to  sell  their  goods,  became  insolvent,  and  owing  the  defend- 
ant a  private  debt,  undertook  to  pay  it  out  of  the  plaintiffs'  goods, 
the  defendant  being  charged  with  knowledge  of  all  the  circum- 
stances at  the  time.  The  plaintiffs  sued  in  assumpsit  and  the  de- 
fendant, instead  of  denying  the  plaintiffs  claim,  undertook  merely 
to  set  off  the  debt  against  their  claim,  which  of  course  could  not 
be  done. 

There  is  error  in  the  judgment  complained  of  and  it  is  reversed. 

In  this  opinion  the  other  judges  concurred.^ 

^Accord:    Bailey  v.  Pardridge,  134  111.  188. 
23 — Reinhard  Cases. 


354  RATIFICATION. 

HYATT  V.  CLARK. 
1890.     Court  of  Appeals  of  New  York.     118  N.  Y.  563. 

Appeals  by  Elizabeth  A.  L.  Hyatt  from  two  several  orders  of  the 
general  term  of  the  superior  court  in  the  city  of  New  York  made 
June  23,  1887,  which  respectively  reversed  separate  judgments  in  her 
favor  entered  upon  the  decision  of  the  court  on  trial  at  special  term. 

These  are  cross-actions  between  the  same  parties,  tried  together 
and  submitted  upon  the  same  evidence.  The  findings  are  the  same 
in  each,  except  as  to  matters  purely  formal.  The  action  brought  by 
Mr.  Clark  was  for  the  specific  performance  of  a  clause  in  a  lease 
between  the  parties,  which  provided  for  the  renewal  thereof  upon 
the  expiration  of  the  first  term  of  five  years.  The  action  brought 
by  Mrs.  Hyatt  was  to  annul  and  cancel  said  lease  upon  the  ground 
that  her  agent  had  exceeded  his  authority  in  executing  and  deliver- 
ing it. 

On  the  2d  of  January,  1880,  Mrs.  Hyatt,  who  was  then  in  Eng- 
land, appointed  her  brother,  Arthur  Lake,  her  agent  to  manage  and 
conduct  her  property  and  affairs  in  the  United  States ;  to  sell  and 
dispose  of  all  or  any  part  of  her  real  or  personal  estate ;  to  convey 
and  assign  the  same  to  the  purchaser  or  purchasers  thereof ;  to 
receive  and  recover  all  sums  of  money  dvie  or  to  become  due  to 
her,  and  to  sign,  seal  and  execute  all  such  agreements,  conveyances,, 
assurances,  acts,  deeds,  matters  and  things  as  should  be  required. 
The  appointment  was  by  written  instrument,  duly  signed,  sealed 
and  acknowledged. 

About  January  15,  1880,  negotiations  were  begun  between  Mr. 
Clark  and  Mr.  Lake  in  relation  to  a  lease  of  certain  premises  be- 
longing to  Mrs.  Hyatt,  known  as  No.  25  Waverly  Place,  in  the 
city  of  New  York.  Clark  raised  the  question  whether  Lake  was 
authorized  by  said  power  of  attorney  to  give  a  lease,  and  wished 
him  to  cable  for  additional  authority,  but  he  did  not  do  so,  as  he  had 
written  to  Mrs.  Hyatt  about  the  offer  made  and  his  letter  was  about 
due.  Pending  an  answer  to  his  letter,  and  about  January  29th,  the 
lease  in  question  was  signed  by  Lake  as  attorney  for  Mrs.  Hyatt,  the 
lessor,  and  by  Clark  and  one  Gardner,  as  lessee.  Lake  then  handed 
the  lease  to  Clark,  for  himself  and  Gardner,  but,  as  the  court  found, 
''Clark  did  not  accept  the  delivery  of  the  lease,  but  postponed  his  de- 
cision as  to  accepting  or  not  accepting  until  he  should  hear  further 
from  Mrs.  Hyatt."  On  the  seventh  of  February,  Mrs.  Hyatt  sent  a 
cable  message  to  Lake,  in  these  words :  "Your  powers  attorney  can- 
celed. Sign  no  lease."  In  a  day  or  two  Lake  showed  this  message  to 
Clark  and  requested  him  to  cancel  "the  matter  of  the  lease  and 
letting  so  far  as  the  same  had  proceeded,"  but  he  refused,  saying 
that  he  would  take  any  risk  there  might  be.     He  thereupon  filed 


'k^  did 

lister  tl!  ■  ny 

...   .1,     .  ,rt 

ed 


,1  the  • 
...  ..^ard  01 
the  rent  res. 
;nents,  the  t\ 
dse  providei' 
■  right  of  re 
$2,500  per 
>e  latter.     T 
^  the  first  sir 
ct,  expended  more  than  $4,000  for  tiiat  purpt 
•'  "  commencement  ■"•''  ♦•'''•    litigation  ri;.rT. 
1  Gardner's  inter,  .e  lease. 

1-  as  tenaii'.  lur  another  term  01;  nvc  3 ear-. 
in  the  opinion. 
i. —  vVc  Jo  not  deem  it  important  to  decide  whether  the 
attorney  authorized  Mr.  Lake  to  execute  the  lease  in 
iot,  because,   in  either  event,  the  same  result  must 
ihe  circumstances  of  this  case. 
•le  hand,  he  acted  without  adequate  authority  in  e  i^  - 


ix)th  the  lessor  and  1r 

'     'W  it,  for  '  •  •' 

are  presumed  to  ha\ 

ibsolute  ' 

•he  law 

of  the  I 

executed  by  her 

ner  naiv 

■^"■inld  be  inf '-i 
vport  &; 

.  viie  legal  <. 
ry  Horse  R. 

',    j..ime  •'  - 

.        r. 

129.  "> 

xecute  i 

^  would  ;._. 

^  would 

'1  upon  au  1 

'.V  gave  her 

effect. 

ed  to  1' 

!t  she  c 

ir  year>: 


RATI 


g'eri'-.r.'u  lerir.  < 
June  23.  1S87, 
favor  • 
Tiu. 
and  submii 
in  each,  e>; 
Mr.  Clark 
be; -   ' 

bv 


la- 


\n  to  cafi: 

■■■'■•I  to  ^-.i..- 
'ending 
1  questi( 
?.n^  hv  * 


'I  orders  of  ti 
i  use  ciu'  '.'i  .\ew  York  ma. 
•VHcd  separate  judgments  in  1 
■   <>n  trial  at  special  ter. 
.:       .  -  ..  parties,  tried  togetl. 
ce.     The  findings  are  the  sav 
.  ....  formal.    The  action  brought  ^ 
perfonnance  of  a  clause  in  a  lea 
ided  for  the  renewal  thereof  up' 
of  five  years.    The  action  brouc 
1  cancel  said  lease  upon  the  g 
authority  in  executing  and  d 

■...-..,  Mrs.  Hyatt,  who  was  then  in  

Arthur  Lake,  her  agent  to  manage  a 

ffairs  in  the  United  States;  to  sell  ai 

:  her  real  or  personal  estate ;  to  com 

::  purchaser  or  purchasers  thereof; 

'^  of  money  due  or  to  become  due  ' 

"e  all  such  agreements,  convey 

nnd  things  as  should  be  reqi  . 

■     instrument,  duly  signed,  seal< 

negotiations  were  begun  between  ^' 
)f  certain  premises  1 
Waverly  Place,  in  + 
-li  the  question  whether  Lai: 
.cmey  to  give  a  lease,  and  v, 
but  he  did  not  do  so,  as  he  h 
•  iJcr  made  and  his  letter  was  al>' 
letter,  and  atout  January  29th,  1 
'      :  i'or  Mrs.Hyn; 

Take  then  ^ 


cable  message  to  L 
celed.   Sign  no  leas' 
Clark  and  request 

letting  so  far  as  ti 
that  he  uoiild  tak. 


n^  until  he  should  hear  ' 

li  February,  Mrs.  Hyatt 

s :  "Your  powers  attorne 

o  Lake  showed  this  mes' 

"the  matter  of  the  lea>- 

i»ut  he  refused,  : 

.     He  thereupoi 


REQUISITES.  355 

his  lease  for  record  and  took  possession  of  the  premises.  Lake  did 
not  report  to  his  sister  that  the  lease  had  been  "executed  in  any 
sense  conditionally,  or  that  Clark  had  not  accepted  delivery  before 
the  receipt  of  the  message,"  but  he  informed  her  that  it  was  signed 
January  29th,  that  it  was  valid  and  that  it  could  not  be  canceled  or 
avoided.  Mrs.  Hyatt  did  not  know  that  there  had  been  any  condi- 
tion connected  with  the  delivery  of  the  lease  until  November  10, 
1884,  when  she  heard  of  it  through  Lake.  In  the  meantime  she 
had  accepted  the  rent  reserved  by  the  lease  as  it  became  due  in 
quarterly  payments,  the  first  payment  having  been  made  May  i, 
1880.  The  lease  provided  for  an  annual  rental  of  $2,000  for  five 
years,  with  the  right  of  renewal  for  a  second  and  third  term  of  five 
years  each,  at  $2,500  per  year  during  the  former,  and  $3,500  per 
year  during  the  latter.  The  lessees  were  to  expend  not  less  than 
$2,000  during  the  first  six  months  in  improving  the  premises,  and 
they,  in  fact,  expended  more  than  $4,000  for  that  purpose. 

Before  the  commencement  of  this  litigation  Clark,  having  first 
acquired  all  of  Gardner's  interest  in  the  lease,  gave  due  notice  of 
his  election  to  continue  as  tenant  for  another  term  of  five  years. 

Further  facts  appear  in  the  opinion. 

Vann,  J. — We  do  not  deem  it  important  to  decide  whether  the 
power  of  attorney  authorized  Mr.  Lake  to  execute  the  lease  in 
question  or  not,  because,  in  either  event,  the  same  result  must 
follow,  under  the  circumstances  of  this  case. 

If,  on  the  one  hand,  he  acted  without  adequate  authority  in  giv- 
ing the  lease,  both  the  lessor  and  lessee  knew  it,  for  both  knew  the 
facts  and  both  are  presumed  to  have  know^n  the  law,  and  the  former, 
at  least,  had  an  absolute  right  to  disaffirm  the  contract.  As  she 
knew  the  contents  of  the  power  of  attorney  and  the  lease,  and  that 
the  latter  was  executed  by  her  agent  in  her  name,  it  was  not  neces- 
sary that  she  should  be  informed  of  the  legal  effect  of  those  facts. 
(Kelly  V.  Newburyport  &  Amesbury  Horse  R.  R.  Co.,  141  Mass. 
496;  Phosphate  Lime  Co.  v.  Green,  L.  R.  (7  C.  P.)  43;  Mechem 
on  Agency,  §  129.) 

Whether  influenced  by  caprice  or  reason,  if  she  had  promptly 
notified  the  lessee  that  she  repudiated  the  lease  because  her  agent 
had  no  power  to  execute  it,  their  rights  would  have  been  forthwith 
terminated  and  they  would  have  had  no  lease.  The  right  to  disaffirm 
on  one  tenable  grounds  would  if  acted  upon,  have  been  as  efifective 
as  the  right  to  disaffirm  upon  all  possible  grounds.  Under  the  con- 
dition supposed,  the  law  gave  her  the  same  right  to  disaffirm  with- 
out any  agreement  to  that  effect,  that  she  would  have  had  if  her 
agent,  being  duly  authorized  to  lease,  had  expressly  provided,  in 
the  written  instrument,  that  she  could  disaffirm  if  she  chose  to  do 
so.  Therefore,  by  accepting  the  rent  of  the  demised  premises  for 
more  than  four  years  without  protest  or  objection,  she  ratified  the 
lease  as  completely  as  she  could  have  if  she  had  known  of  two 


356  RATIFICATION. 

grounds  upon  which  to  disaffirm,  instead  of  only  one.  Two  grounds 
could  not  make  the  right  any  more  effectual  than  one.  If  she  had 
the  right  at  all,  the  number  of  grounds  upon  which  she  could  justify 
its  exercise  is  unimportant.  Her  ratification  was  none  the  less  com- 
plete, because,  being  unwilling  to  run  the  risk  of  a  doubtful  ques- 
tion of  law,  she  did  not  at  once  act  as  she  would  have  acted  if  she 
had  known  all  of  the  facts.  As  said  by  the  court  in  Adams  v.  Mills, 
(60  N.  Y.  539),  "the  law  holds  that  she  was  bound  to  know  what 
authority  her  agent  actually  had."  Having  executed  the  power  of 
attorney,  she  is  conclusively  presumed  to  have  known  what  it 
meant  and  the  extent  of  the  authority  that  it  conferred.  (Best  on 
Ev.,  123  ;  Whart  on  Ev.,  §   1241.) 

If  the  lease  was  ultra  vires,  therefore,  by  ratifying  it,  she  in  legal 
effect  executed  and  delivered  it  herself,  and  whatever  was  said  be- 
tween Lake  and  Clark,  became  immaterial.  Even  if  they  agreed 
that  she  should  have  the  right  to  disapprove,  it  is  of  no  import- 
ance, because  she  had  that  right  without  'any  such  agreement.  If 
her  agent  had  no  power  to  execute  the  lease,  the  delivery  thereof, 
whether  absolute  or  conditional,  could  not  affect  her  rights.  If 
she  was  dissatisfied  with  it,  she  could  have  been  relieved  of 
all  responsibility  thereunder  by  promptly  saying  to  the  les- 
sees :  "This  contract  was  not  authorized  by  the  agency  I  cre- 
ated, and  I  refuse  to  be  bound  by  it,"  After  that  there  would 
have  been  no  lease.  If  the  action  of  her  agent  was  unauthorized, 
it  did  not  bind  her,  until  by  some  act  of  ratification  she  bound  her- 
self. By  ratifying,  she  waived  any  right  to  disaffirm  upon  any 
ground,  known  or  unknown,  because  the  lease  did  not  exist,  as  a 
lease,  by  the  act  of  her  agent,  but  by  her  own  act  of  confirmation. 

If,  on  the  other  hand,  Mr.  Lake  was  duly  authorized  to  give 
the  lease,  certain  presumptions  of  controlling  importance  spring 
from  that  fact.  He  is  presumed  to  have  disclosed  to  his  principal, 
within  a  reasonable  time,  all  of  the  material  facts  that  came  to 
his  knowledge  while  acting  within  the  scope  of  his  authority. 

It  is  laid  down  in  Story  on  Agency  (§  140),  that  "notice  of  facts 
to  an  agent  is  constructive  notice  thereof  to  the  principal  himself, 
where  it  arises  from  or  is  at  the  time  connected  with  the  subject- 
matter  of  his  agency,  for,  upon  general  principles  of  public  policy, 
it  is  presumed  that  the  agent  has  communicated  such  facts  to  the 
principal,  and  if  he  has  not,  still  the  principal  having  intrusted  the 
agent  with  the  particular  business,  the  other  party  has  a  right  to 
deem  his  acts  and  knowledge  obligatory  upon  the  principal." 

In  other  words,  she  was  chargeable  with  all  the  knowledge  that 
her  agent  had  in  the  transaction  of  the  business  he  had  in  charge. 
(•Ingalls  V.  Morgan,  10  N.  Y.  178;  Adams  v.  Mills,  supra;  Myers  v. 
Mutual  Life  Ins.  Co.,  99  N.  Y.  i,  11 ;  Bank  of  U.  S.  v.  Davis,  2 
Hill  451 ;  Higgins   v.  Armstrong,  9  Col.  38.) 


.'as  VIS  (.U'ty  to  keej.  aev 

noticp  of  all  facts  en- 

.:,sts. 
e  is 
oi  irauauien:.  ci.  :  v,ho, 

Jer  no  oblig'icic.  ...^....  h  "{ 

.  to  assume  that  L  .'  so.  (li; 

leehan  v.  Forrest  - --- 

R.  R.  Co.,  86  id. 
her  duty  to 
judgment,  e 

last  bear  the  loss  resulting  from  iiis  mexperienc^ 
-iiistaken  zeal.  After  the  lapse  of  sufficient  time,  t' 
iumed  to  have  acted,  with  knowledge  of  all  the  ac 
the  line  of  his  agency. 

vtpting  and  retaining  the  rent,  which  was  the  fruit  of  her 
"'>r  nearly  five  years  \;.    '  ion,  she  is  p  ■ 

d  that  act.     (lioyt  \.  19  N.  Y.  2ov 

S  64  Iowa  1207 ;  Heyn  v.  OHagen,  60  Mich.  160,  post 
on  Ev.  §§  66,  67.)  Without  expressing  any  dissatis- 
■  the  lessees,  she  received  eighteen  quarterly  payments  of 
e  electing  to  avoid  the  lease.    She  made  no  offer  to  return 
>f  the  rent  so  paid,  although  she  tendered  back  the  amount 
■f:  for  the  nineteenth  quarter  at  the  time  that 
lon  of  the  premises. 
I  of  what  she  is  have  known 

1;  her  agent,  she    ..   ;-..-■./  the  terns--: 

IS  executed  by  Mr.  Lake  in  her  name. 
,  rrival  in  this  country  in  Septembc- 
nd  saw  the  additions  and  improv 
king  thereto 
to  her  in  p- 
cared  to  ha 
months  pr. 
i  not  until 
."  continue  the  ic'-a;   i..;i    d  i.c; 

.vas  low,  she  then  tried  to  finv  om 

''''"'  >    '  '  :.  result 

•'ich  she 

:\en  too 

acts  of 

.pended 


':cecd  lii  tiiis  iiii- 

n,  because  her  I 

died  upon  by  the 

'■'■■•■  making  per: 

d  the  benefi 


ihe  right  at  aii, 
its  exercise  is  i 
plete,  becai 
tion  of  law,  ^.t 
had  known  all  i- 
(60  N.  Y.  - 
authority  ]> 
attorney,    s 
meant  and 
Ev.,  12 

If  th.  .  _  . 
effect  executed 
tv\-       ■    ' 


lease,  1 

If,  <- 
the  le.- 
from  that  . 
within  p.   I 
his  krt' 

It  ib 

an  agent  is 
^,  vere  it  arises 
matter  of  his  a 
it  is  presumed 
principal,  and  ; 
a.e^ef.t.  with  the  pa 
uoi  :  his  acts  and 

In  other  words, 
her  agent  had  ir<  '-' 
i  iugjills  V.  Mo' 
T\Ti  ^      ■    '  ■•■ 


I  wo  grounds 
If  she  had 
could  j 
■  the  less 
1  the  risk  ot  a  doubtful  que: 
^  ci,.-  itrQuid  have  acted  if  si 
art  in  Adams  v.  Mill. 
".as  bound  to  know  wh 
\ng  executed  the  power 
lucd   to   have    known   what 
iv  that  it  conferred.     (Best  > 

v.ici^. v.,  .,.   i^w.^mg  it,  she  in  leg 
herself,  and  whatever  was  said  b- 
;    :-    :,rial.     Even  if  they  or 
]5rove,  it  is  of  no  it 
■ment. 
y  therec 
onai,   could  not  atiect  her  rights. 
it,    she   could   have    been    relieved 
-T    by    promptly    saying    to    the    k 
not  authorized  by  the  agency  I   cr 
'»und  by  it,"     After  that  there  won; 
action  of  her  agent  *vas  unauthorizc 
some  act  of  ratification  she  bound  ht 
ivcd  any  right  to  disaffirm  upon  as. 
because  the  lease  did  not  exist,  as 
ut  by  her  own  act  of  confirmatic 
'vake  was  duly  authorized  to  gi . 
of  controlling  importance   sprir 
i  to  have  disclosed  to  his  prin  ' 
*    the  material  facts  that  caj. 
le  scope  of  his  authority. 
."  (§  140).  that  "notice  of  fa. 
e  thereof  to  the  principal  hi 
■0  time  connected  with  the  si 
creneral  principles  of  public  ; 
b  facts  ' 
;  intrust ^ 
1  rigid   ■ 

le  with  all  the  knowled.L' 
■  he  business  he  had  in  c 
.dams  V.  Mills,  stipra;  M 


REQUISITES.  357 

It  was  his  duty  to  keep  her  informed  of  his  acts  and  to  give  her 
timely  notice  of  all  facts  and  circumstances  which  would  have  en- 
abled her  to  take  any  step  that  she  deemed  essential  to  her  interests. 

She  does  not  question  the  good  faith  of  Mr.  Lake,  and  there  is 
no  proof  of  fraudulent  collusion  between  him  and  Mr.  Clark,  who, 
while  under  no  obligation  to  inform  Mrs.  Hyatt  of  the  facts,  had 
the  right  to  assume  that  her  agent  had  done  so.  (Ingalls  v.  Morgan, 
supra;  Meehan  v.  Forrester,  52  N.  Y.  2yy,  Scott  v.  Middletown  U. 
&.  W.  G.  R.  R.  Co.,  86  id.  200.) 

It  was  her  duty  to  protect  her  interests  by  selecting  an  agent  of 
adequate  judgment,  experience  and  integrity,  and  if  she  failed  to  do 
so,  she  must  bear  the  loss  resulting  from  his  inexperience,,  negli- 
gence or  mistaken  zeal.  After  the  lapse  of  sufficient  time,  therefore, 
she  is  presumed  to  have  acted,  with  knowledge  of  all  the  acts  of  her 
agent,  in  the  line  of  his  agency. 

By  accepting  and  retaining  the  rent,  which  was  the  fruit  of  her 
agent's  act,  for  nearly  five  years  without  objection,  she  is  presumed 
to  have  ratified  that  act.  (Hoyt  v.  Thompson,  19  N.  Y.  207;  Alex- 
ander V.  Jones,  64  Iowa  207;  Heyn  v.  O'Hagen,  60  Mich.  160,  post 
p.;  2  Greenl.  on  Ev.  §§  66,  67.)  Without  expressing  any  dissatis- 
faction to  the  lessees,  she  received  eighteen  quarterly  payments  of 
rent  before  electing  to  avoid  the  lease.  She  made  no  offer  to  return 
any  part  of  the  rent  so  paid,  although  she  tendered  back  the  amount 
deposited  to  her  credit  for  the  nineteenth  quarter  at  the  time  that 
she  demanded  possession  of  the  premises. 

Independent  of  what  she  is  presumed  to  have  known  through  the 
information  of  her  agent,  she  in  fact  knew  the  terms  of  the  lease 
and  that  it  was  executed  by  Mr.  Lake  in  her  name. 

Upon  her  arrival  in  this  country  in  September,  1880,  she  visited 
the  premises  and  saw  the  additions  and  improvements  that  the  ten- 
ants were  making  thereto,  and  at  the  time  as  well  as  subsequently, 
rent  was  paid  to  her  in  person.  Apparently  she  had  all  the  knowl- 
edge that  she  cared  to  have,  for  she  made  no  inquiry  of  her  agent 
until  about  six  months  previous  to  the  expiration  of  the  first  term 
of  five  years,  and  not  until  after  the  lessees  had  given  notice  of 
their  election  to  continue  the  lease  for  a  second  term.  Thinking 
that  the  rent  was  low,  she  then  tried  to  finding  out  something  from 
her  agent  that  would  enable  her  to  avoid  the  lease  and  as  a  result 
of  her  efforts  in  this  direction,  ascertained  the  fact  upon  which  she 
based  her  right  to  succeed  in  this  litigation.  But  it  was  then  too 
late  for  her  to  disaffirm,  because  her  long  silence  and  many  acts  of 
ratification  had  been  relied  upon  by  the  tenants,  who  had  expended 
a  large  sum  of  money  in  making  permanent  improvements  on  the 
property.  Having  received  the  benefit  of  the  contract,  she  could 
not,  after  years  of  acquiescence,  suddenly  invoke  the  aid  of  the 
courts  to  relieve  her  of  any   further  obligation,  because  she  had 


358  RATIFICATION. 

but  recently  discovered  a  fact  that  she  should  have  ascertained,  and 
which  the  law  presumed  that  she  did  ascertain,  long  before,  (i 
Am.  i&  Eng-.  Ency.  of  Law  429.) 

We  think  that  after  ample  opportunity  for  election  and  action 
she  ratified  the  lease  and  that  her  ratification  was  irrevocable. 

In  each  action  the  order  appealed  from  should  be  affirmed  and 
judgment  directed  upon  the  stipulation  in  favor  of  the  respondent, 
with  costs  of  appeal  to  this  court  in  one  action  only. 

All  concur  except  Haight,  J.,  not  sitting. 

Order  affirmed  and  judgment  accordingly.^ 


WALLACE  ET  AL.  V.  LAWYER  et  al. 
1883.     Supreme  Court  of  Indiana.     90  Ind.  499. 

WooDS^  C.  J. — Action  by  the  appellees  to  enjoin  the  collection  by 
the  appellants  of  a  certain  judgment  of  the  Marion  superior  court, 
rendered  in  favor  of  Andrew  Wallace  against  the  appellees,  and 
afterwards  assigned  by  the  said  Andrew  to  his  wife  and  co-appel- 
lant. 

It  was  admitted  on  the  trial  "that  on  the  31st  day  of  August, 
1878,  Joseph  M.  Wallace  executed  an  assignment  of  said  judgment 
in  proper  form,  on  the  proper  record,  in  the  name  of  said  Andrew 
Wallace  to  Asher  G.  Walton,"  but  it  is  claimed  that  Joseph  M. 
Wallace  had  no  authority  to  make  the  assignment,  and  that,  for  the 
want  of  evidence  to  show  such  authority,  the  motion  of  the  appel- 
lants for  a  new  trial  should  have  been  sustained. 

The  evidence  shows,  or  tends  strongly  to  show,  that  before  the  ex- 
ecution of  the  assignment  in  question  Andrew  Wallace,  in  considera- 
tion or  payment  of  moneys  which  he  had  received  of  his  wife,  had 
sold  and  transferred  to  her  a  stock  of  groceries  and  had  executed 
to  her  a  written  assignment  of  accounts,  demands  and  judgments, 
including  the  one  in  question,  and,  having  thus  disposed  of  his 
business  and  property,  had  gone  to  a  western  territory  to  look  after 
mining  interests.  Of  the  goods  and  business  thus  transferred  to 
her,  Mrs.  Wallace  put  her  son  Joseph  M.  Wallace  in  charge,  and 
while  so  employed  he  sold  and  assigned  the  judgment  in  question 
to  Walton  for  the  sum  of  $100,  which  he  mingled  with  other  moneys 
received  for  and  applied  to  the  uses  of  his  mother  who,  after  full 
knowledge  of  the  facts,  made  no  offer  to  return  the  money  to 

^Accord:    Kirkpatrick  v.  Pease,  202  Mo.  471. 

The  receipt  of  money  arising  from  an  unauthorized  act,  to  which  money  the 
principal  is  entitled  notwithstanding  that  act,  does  not  amount  to  a  ratification. 
White  V.  Sanders,  32  Me.  188. 


'1,  but  :-  -^  pur- 

.  ,:u\  ....  -he    i- 

\e  amoi; 

.      .,:a:r    i.'C    sa^i    ,  i:cit    there 

^^;ency  on  the  part  of  Wal; 
it  and  posii 
iot  made  iir. . 
VVaitoii. 

It  is  clear  that  the  reti- 
If  the  assit:  runent  of  the 

litiited  a  wjiver  of  all  riguL  ti;^  .  :- 

•  lent  on  account  of  lack  of  aui  the  age: 

Judgment  affirmed.^ 


7  Til 


i. —  iiiis  was  an  aclioti  ot  rcpieviu  lor  a  licrsc.     iiic  biii 
>r  ?ho\vs  that  in  the  spring  of  1852,  a  son  of  the  plaintiff, 
years  of  age,  and  who  resided  with  him,  exchanged 
..    .uestion,  which  belons.'.:  '  '  •  1U-  olaiiitlfF.  v -'th  llie  de- 
't  for  another  horse.     A  fe 
'■'  *'  'fbid  his  son  to  exchange  nn.   1." 
ok  the  horse  home  to  the  plain- 

made  on  Saturday,  and  the  excii,. 
r.  The  son  told  his  father,  on 
ch  he  had  v  xchange  and 

'.n"  express!;  ^(]   of  or   fi 

:ot  seeni  ?  what  h 

knows  'lid  no^  * 

•es  it«a}  in  the  s 

^ions  wneii  iie  bri 
,t.     The  r^'^^'nttfr 
days  after 
.at  if  the  h'  ; 


'Til. 


ncipui  receiver  ir 
rrpnrt   or   acrorni 


J  ,  in  ]o'  13. 


Vr.^' 


b'!':  recently  discover 
v.juch  the  law  nt'- 
Am.  i&  Eng,  En* 

W€  think  th;  : 
she  ratified  the  ! 

In  each  actioi 
judgnu^nt  direct 
with  costs  of  ap: 

All  concur  t- 

(^rder  afH ; 


ascertained,  ah> 

■i  ■!!:•■  lie  fore,      f 


irrevocable. 
u;d  be  affirmed  ;ni 
.  )r  of  the  respondent 
ion  only. 


iccordingly."^ 


-\WYER   FT  AL 


»!•    i 2s DIANA.       90   IVlCt.    499. 


WaiiL  <->t    cv; 

lants  for  a 
The  evid- 
^-v^ition  of  t!< 
tion  or  payment  o£ 
sold  and  transf<""'p<' 
to  in'-:  a  writtt' 
inc'  '    —   ''le  uin.:   , 
hn-  propen 


received  for  and  aj:. 
knowledge  of  the  t 

1    -•;.-.■.■,,./         kii-t.n-iiv,, 


White  V.  Sanders 


;!ie  appellees  to  enjoin  the  collection  b- 
idgment  of  the  Marion  superior  couri 
:w   Wallace  against  the  appellees,  an  , 
J  J       ;  '  -     -  '     '-■       -'■"  and  co-appel- 

Ihal  on  the  jist  day  of  Angus  i 

d  an  assignment  of  said  judgmej; 

,:'■  record,  in  the  name  of  said  Andre'. 

;i,"  but  it  is  claimed  that  Joseph  h; 

MUike  the  assignment,  and  that,  for  tl; 

.oh  authority,  the  motion  of  the  appei 

i  have  been  sustained. 

■.rrongly  to  show,  that  before  tlv.     ^ 
cion  Andrew  Wallace,  in  consi  ;  ; 
.  h  he  had  received  of  his  wife,  h;. 
-■:cl:  of  groceries  and  had  execute 
mts,  dgmands  and  jtidgmenl. 
:    having  thus  disposed  of  h; 
western  territory  to  look  aftt 
s  thus  transferred  '■■ 
■'^\h.^t  in  charge,  ar 
it  in  qu. 
•  ,  other  m 
of  his  mother  who,  aftc 

1  ;T,- ,-     i:.     rrti-.i-n     f'.,-'     mr)l 


rized  act,  to  which  mo; 
\s  not  amount  to  a  ratif 


REQUISITES.  359 

Walton,  but  retains  the  same,  upon  the  pretense  that  Walton  pur- 
chased only  as  agent  for  the  judgment  defendant,  and  that  she  is 
willing  to  allow  the  amount  as  a  credit  upon  the  judgment.  If 
it  can  be  said  that  there  is  any  evidence  tending  to  show  such 
agency  on  the  part  of  Walton  it  is  slight,  and  the  proof  to  the  con- 
trary is  explicit  and  positive.  The  assignment  of  record  to  Mrs. 
Wallace  was  not  made  until  after  the  entry  of  the  assignment  to 
Walton. 

It  is  clear  that  the  retention  of  the  money  received  of  Walton 
for  the  assignment  of  the  judgment,  after  notice  of  the  facts,  con- 
stituted a  waiver  of  all  right  to  dispute  the  validity  of  the  assign- 
ment on  account  of  lack  of  authority  of  the  agent  to  make  it. 

Judgment  affirmed.^ 


HALL  V.  HARPER. 

1855.     Supreme  Court  of  Illinois.     17  111.  82. 

Caton,  J. — This  was  an  action  of  replevin  for  a  horse.  The  bill 
of  exception  shows  that  in  the  spring  of  1852,  a  son  of  the  plaintiff, 
about  eighteen  years  of  age,  and  who  resided  with  him,  exchanged 
the  horse  in  question,  which  belonged  to  the  plaintiff,  with  the  de- 
fendant for  another  horse.  A  few  days  before  the  exchange  the 
plaintiff  forbid  his  son  to  exchange  the  horse.  After  the  exchange 
the  son  took  the  horse  home  to  the  plaintiff.  The  agreement  to 
exchange  was  made  on  Saturday,  and  the  exchange  was  made  sev- 
eral days  after.  The  son  told  his  father,  on  the  Saturday,  the 
agreement  which  he  had  made  to  exchange  and  it  does  not  appear 
that  the  plaintiff  expressly  approved  of  or  forbid  the  exchange. 
The  witness  does  not  seem  to  remember  what  his  father  said  about 
it,  only  he  says  he  knows  his  father  did  not  tell  him  to  make  the 
exchange.  Nor  does  it  appear  from  the  son's  testimony,  that  his 
father  made  any  objections  when  he  brought  the  horse  home  which 
he  got  of  the  defendant.  The  plaintiff"  was  afterwards  seen  riding 
the  horse.  A  few  days  after  the  exchange,  the  plaintiff  told  the 
witness,  Snyder,  that  if  the  horse  which  his  son  had  swapped  with 

ihe  acceptance  of  tb.e  benefits  arising  from  an  unauthorized  act  without 
knowledge  of  the  act  does  not  amount  to  a  ratification.  Thacher  v.  Pray,  113 
Mass.  291. 

"Where,  however,  the  principal  receives  from  his  agent  the  proceeds  of  the 
unauthorized  act,  with  his  report  or  account  of  the  transaction,  he  cannot 
ignorantly  or  purposely  shut  his  eyes  to  means  of  information  within  his  pos- 
session and  control,  and  thereby  avail  himself  of  the  benefits  of  the  transac- 
tion, and  then  repudiate  it.  If  he  so  receives  and  retains  the  benefits  of  the 
transaction,  he  ratifies  it."     Start,  C.  J.,  in  Johnson  v.  Ogren,  102  Minn.  8,  13. 


360  RATIFICATION. 

the  defendant  for,  "lived  and  lucked  well,  he  would  make  a  horse 
that  would  sell  for  more  than  the  one  his  son  had  swapped  to 
defendant."  The  parties  lived  about  two  miles  apart,  and  met  sev- 
eral times ;  and  on  one  occasion  the  defendant  rode  the  horse  in 
controversy  to  the  plaintiff's  house,  but  nothing  was  said  between 
them  about  the  exchange  of  horses  which  had  been  made.  Two 
or  three  weeks  after  the  exchange  had  been  made,  the  plaintiff 
was  taken  sick  and  remained  ill  till  about  the  time  this  suit  was  com- 
menced. After  the  exchange  the  son  took  the  horse  home  to  his 
father's  where  he  remained  two  or  three  months ;  at  the  expiration 
of  which  time,  the  plaintiff  took  the  horse  back  to  the  defendant 
and  off'ered  to  return  him,  and  demanded  of  the  defendant  the 
horse  which  his  son  had  let  him  have.  The  defendant  refused 
to  return  him,  whereupon  this  suit  was  brought. 

From  this  evidence  the  jury  was  well  warranted  in  finding  that 
the  plaintiff  had  acquiesced  in  and  approved  of  the  exchange  of 
horses  which  had  been  made  by  his  son,  and  thus  adopted  that  act 
as  his  own.  He  did  not  repudiate  the  bargain  which  his  son  had 
made  for  the  exchange  when  he  was  advised  of  it  before  the  ex- 
change was  actually  made,  but  passively  allowed  the  executory  bar- 
gain to  be  executed;  and  when  his  son  brought  the  horse  home  he 
made  no  objections  to  the  exchange,  but  retained  and  used  the 
horse  obtained  of  the  defendant.  He  still  forbore  to  remonstrate 
when  he  met  the  defendafit  several  times  subsequently,  and  even 
when  the  defendant  rode  the  horse,  which  he  had  obtained  of  his 
son,  to  his  house.  It  is  plainly  inferable,  from  the  evidence,  that  he 
retained  and  treated  the  horse  as  his  own  for  about  three  months, 
without  a  word  of  dissatisfaction  or  disapproval.  An  old  and  just 
legal  maxim  may  well  be  applied  to  the  plaintiff  here,  which  says, 
if  he  keeps  silent  when  duty  requires  him  to  speak,  he  shall  not 
be  allowed  to  speak  when  duty  requires  him  to  keep  silence.  His 
continued  silence  and  long  apparent  acquiescence  in  the  act  of  his 
son,  well  justified  the  defendant  in  supposing  that  it  met  with  his 
entire  approval.  He  cannot  be  allowed  to  lay  by  and  speculate 
on  the  chances  of  a  good  or  bad  bargain,  or  upon  the  chances  of 
the  horse,  procured  of  the  defendant,  turning  out  good  or  bad ;  or, 
to  use  his  own  expression,  "lucking  well."  If  he  intended  to  re- 
pudiate the  action  of  his  son,  he  should  have  done  so  promptly,  so 
that  the  defendant  might  know  what  he  had  to  rely  upon. 

We  think  a  different  verdict  would  not  have  been  justified  by  the 
evidence,  and  the  judgment  must  be  affirmed. 

Judgment  affirmed.^ 

^  See  Story  on  Agency,  8th  ed.,  §  258. 

"If  Dawley  was  without  original  authority  to  borrow  money  on  behalf  of 
his  principal,  but  did  in  fact  so  borrow,  and  used  it  in  a  manner  advantageous 
to  the  party  to  be  charged,  the  ratification  of  his  unauthorized  act  may  be  in- 
ferred from  the  silence  of  the  principal  after  knowledge  of  the  facts.     It  is 


I 


■{171.      N'_ 

,  and  ot! 


Pliilem 
'  "  counst 
..ver's    h.- 
'  >nam  Weaver  signei'  te.     The 

-c  and  plaintiff  closed. 

i.m  Weav^er  testified  that  he  v  said  note 

■'      .'i'l  did  not  sign  it  noi   ;;':    ujiize  anyone  tifc 
uO;  that  about  the  date  of  this  note  John  WebL 
id  he  had  a  note  on  him  and  John  S.  Weaver  loi 
X),  and  that  he  wished  the  note  put  into  two  notes, 
turn  over  $500  of  the  apiount  to  some  religious  so- 
.....   t;..  told  Webb  to  go  and  see  John:  the  note  was  not 
to  him  and  he  heard  no  more  of  it  till  plaintiff's  attorney 
I  him  just  before  this  s,uit,  and  he  told  said  attorney  to  go 
son,   Tohn  S.  Weaver:  he  would  have  told  the  attorney  that 
;  ot  his  d, 
S.  had  c 
4  him,  John  S.  had  sonir^ 

"1  him  and  proposed  to  .. ^  - 

1  that  the  note  was  not  his,  and  thai 
■  then  shown  by  several  witnesses  th 
not  in  his  handwritinpf. 

it  was     ■    '  '  •" 

tree  ha, 
')r  ten  yeart 

rlinfinr  vr  *  ratifv- 


;  ex.  L'v 
silence  ^^ 


30C' 

'I ;  defendant  for,  "lived 

iliat   would   sell   for   :^'    " 

defendant."    The  pa. 

era]  times ;  and 

controversy  to  K 

them  about  the 

or  three  weeks 

was  taken  sick  a' 

menced.     Af*<-' 

father's  whc 

of  whicli 

and  oB 

hor- 

to  r 


KATIFICATION. 


and  lucked  well,  he 


be  aliov. 
oontinn 

tjuire   ajij>r- 
'  r  fire  chaii 


'he  acti'j 
defendaiK 
link  a  differ. 
,  and  the  ju 
\pnt  aflRrme'] 


a  horse 
apped  to 
met  sev- 
horse  in 
:  between 
'uade. 
the  pla' 
uit  was  com 
home  to  hi 
ne  expiratioii 
lie  defendart' 
defendant  the. 
.  iondant  refused 


finding  thai 

!..  „ ,.j.  exchange  o: 

by  his  son,  pted  that  act 

^'  *     ''^'   ''  his  son  had 

;^fore  the  ex- 

•xecutory  bar- 

-rse  home  h<- 

d   and   used  the 

- e  to  remonstrate 

several  times  sulsequently,  and  even 
'■■'"Tse,  which  he  had  obtained  of  his 
ierable,  from  the  evidence,  that  ht. 
11  for  about  three  month,': 
iproval.    An  old  and  jus; 
.  to  the  plaintiff  here,  which  say; 
;  aires  him  to  speak,  he  shall  nc>l 
res  him  to  keep  silence.     Hi 
..t  acquiescence  in  the  act  of  hi. 
n  supposing  that  it  met  with  hi 
''"wed  to  lay  by  and  speculaU 
rain,  or  upon  the  chances  oi 
Ming  out  good  or  bad;  or 
'."     Tf  he  intended  to  re 


tified  h 


i 


'  Set  ;: 

'•If  D. 

his  princ 

to  the  p;.. 


(lie  .silt'ii. 


.dge  of  the  facts.    It  i'^ 


I 


REQUISITES.  361 

WEAVER  V.  OGLETREE. 
1869.     Supreme  Court  of  Georgia.     39  Ga.  586. 

A'on  est  factum.    Newton  superior  court. 

David  Ogletree  and  others,  as  executors  of  Philemon  Ogletree, 
sued  John  S.  Weaver  and  I  sham  Weaver,  upon  a  promissory  note 
purporting  to  be  signed  by  them,  dated  the  9th  of  December,  1861, 
and  due  the  7th  of  December,  1862,  for  $814.03,  payable  to  the  exe- 
cutors of  said  Philemon  Ogletree.  Isham  Weaver  plead  non  est 
factum.  Plaintiff's  counsel  introduced  a  witness  who  professed  to 
know  Isham  Weaver's  handwriting,  and  who  testified  that  he 
thought  Isham  Weaver  signed  said  note.  The  note  was  read  in 
evidence  and  plaintiff  closed. 

Isham  Weaver  testified  that  he  never  saw  said  note  till  he  was 
sued  on  it,  and  did  not  sign  it  nor  authorize  anyone  else  to  sign 
his  name  thereto ;  that  about  the  date  of  this  note  John  Webb  called 
on  him  and  said  he  had  a  note  on  him  and  John  S.  Weaver  for 
$1,200  or  $1,500,  and  that  he  wished  the  note  put  into  two  notes, 
that  he  might  turn  over  $500  of  the  amount  to  some  religious  so- 
ciety, and  he  told  Webb  to  go  and  see  John ;  the  note  was  not 
shown  to  him  and  he  heard  no  more  of  it  till  plaintiff's  attorney 
dunned  him  just  before  this  suit,  and  he  told  said  attorney  to  go 
to  his  son,  John  S.  Weaver ;  he  would  have  told  the  attorney  that 
the  note  was  not  his  deed,  but  he  was  ashamed;  when  Webb  called 
on  him,  John  S.  had  considerable  property,  and  when  the  attorney 
dunned  him,  John  S.  had  some  property ;  when  one  of  the  plaintiffs 
called  on  him  and  proposed  to  take  a  small  amount  for  the  note, 
he  told  him  that  the  note  was  not  his,  and  that  he  would  not  pay 
it.  It  was  then  shown  by  several  witnesses  that  Isham  Weaver's 
name  was  not  in  his  handwriting. 

In  rebuttal  it  was  shown  that  from  1844,  Isham  Weaver  and 
Philemon  Ogletree  had  had  transactions,  and  one  of  the  executors 
testified  that  for  ten  years  past  Philemon  Ogletree  held  a  note  on 

his  duty,  if  he  does  not  acquiesce  in  the  unauthorized  act,  to  repudiate  it." 
Thatcher,  C.  J.,  in  Breed  v.  First  National  Bank  of  Central  City,  4  Col.  481, 
507- 

"Mere  delay  in  repudiating  will  not,  in  our  opinion,  have  the  effect  of  ratif}'- 
ing.  It  would  be  evidence,  along  with  other  facts,  from  which,  if  it  should  be 
unreasonable,  the  jury  might  infer  that  there  was  a  ratification."  Collard,  J., 
in  Meyer  v.  Smith,  3  Tex.  Civ.  App.  27,  43- 

"The  case  in  which  silence  will  amount  to  ratification  is  where  the  principal, 
having  knowledge  of  the  transactions  of  his  agent,  fails  within  a  reasonable 
time  to  express  his  dissent.  It  is  failure  to  express  dissent  to  the  act  done  by 
the  agent,  or  supposed  agent,  within  a  reasonalole  time  after  knowledge  of  the 
facts,  that  raises  the  presumption  of  ratification  :  not  the  forbearance  to  sue 
immediately  after  such  notice  has  been  given."  Deaderick,  C.  J.,  in  McClure 
V.  Evartson,  14  Lea  (Tenn.)  495,  501. 


362  RATIFICATION. 

Isham  Weaver,  which  in  January,  1861,  amounted  to  $1,225. 
Another  of  the  plaintiffs  testified,  that  to  the  best  of  his  knowledge 
said  note  was  repeatedly  renewed  in  the  lifetime  of  Philemon 
Ogletree,  and  that  after  his  death  the  note  and  another  were  turned 
over  to  Webb  to  be  renewed  and  divided  for  the  purpose  aforesaid. 
Webb  returned  this  note  as  a  renewed  note  after  said  $500  was 
taken  out  by  said  division ;  and  when  this  witness  called  on  Isham 
Weaver,  recently,  he  admitted  to  witness  that  he  had  known  for 
years  that  his  name  was  on  said  note ;  said  that  John  S.  had  fraudu- 
lently used  his  name,  and  that  he  would  not  pay  the  note,  adding 
that  if  this  was  the  only  one  he  might  pay  it,  but  as  there  were 
others  he  would  let  the  court  decide  the  matter.  John  Webb  testi- 
fied that  when  he  called  on  Isham  Weaver  for  the  purpose  of  hav- 
ing the  note  renewed  and  divided  into  two,  he  said  "go  and  see 
John;"  he  saw  John,  and  in  a  day  or  two  John  brought  him  this 
note  and  the  other  for  the  religious  society,  signed  as  was  the  old 
note.  John  S.  was  then  good,  and  Isham  made  no  impression  on 
Webb  that  his  name  was  not  his  genuine  signature.  It  was  shown 
that  before  Isham  Weaver  ever  denied  the  genuineness  of  the  sig- 
nature, John  S.  had  left  the  State. 

The  court  charged  the  jury  that  a  party  may  bind  himself  to 
an  unauthorized  act  of  another,  either  by  express  or  implied  ratifi- 
cation. Express  ratification  is  when  a  party  adopts  and  confirms 
an  unauthorized  act  of  another,  and  assumes  the  liability  thus 
created  by  a  positive  promise,  and  this  relates  back  to  the  original 
transaction.  Implied  ratification  arises  when  the  party  sought  to  be 
charged  with  an  unauthorized  act  is  informed  of  it  and  does  not 
repudiate  it,  but  acquiesces  in  and  does  not  dissent  from  it  for  any 
length  of  time. 

The  jury  found  for  the  plaintiffs  for  the  principal  and  interest 
on  the  note  and  costs. 

A  new  trial  was  moved  for,  upon  the  grounds  that  the  verdict 
was  unsupported  by  the  evidence,  and  because  such  charge  was 
hypothetical,  and  therefore  calculated  to  mislead  the  jury.  The 
new  trial  was  refused,  and  that  is  assigned  as  error. 

Brown,  C.  J. — The  evidence  submitted  to  the  jury  in  this  case 
showed  that  John  S.  Weaver  had  been  using  the  name  of  his 
father,  Isham  Weaver,  for  years,  on  his  own  notes,  and  that  this 
fact  was  known  to  Isham  Weaver.  But  he  took  no  steps  to  stop 
this  use  of  his  name,  and  gave  no  notice  to  anyone  interested  that 
it  was  not  authorized  by  him.  When,  in  the  language  of  Isham 
Weaver,  John  Webb  did  call  on  him  and  John  S.  Weaver  for  some 
twelve  or  fifteen  hundred  dollars,  and  wanted  the  note  divided  into 
two,  in  order  that  he,  Webb,  might  turn  over  some  five  hundred 
dollars  to  some  religious  society,  he  told  Webb  to  go  to  John  S. 
Weaver.     He  does  not  pretend  that  he  even  intimated  to  Webb 


TOte  was  not  genuine,  or  that  h'  av 

— r'   ->  jfohn  S.  W—  -  '•  =M 

,  to  make  ti 
ished,  and  ; 
^d  with  the 


a  is  date-v'  ;!bout  the  tim 

r,-^-. .  I  !    .   .,>  see  John  S 

aver  for  pa 

-    would  ha\<  -  uiai   ^j 

olved  his  sot.  ashamco. 

\,  '6  jury  were  autixOri^cd  by  the  evidt: 

|'ii\n  ver  had  authority  to  sign  the  name  ■. 

•r  if  not,  that  the  father,  by  his  conduct,  ratiheo 
1  done  without  authority,  and  made  it  his  own  a  ..    , 
chat  he  will  not  now  be  heard  to  deny  its  validity,  whc;> 
'  -^t,  he  has  induced  others  to  act  upon  the  belief  that 
Mr.  Chitty,  in  his  treatise  on  Bills  of  Exchange,  p. 
the  rule  as  follows:    "A  person  may  become  drawerj 
•i-eptor,  not  only  by  his  own  immediate  act,  but  also 
t  or  partner.    When  a  party  insists  that  his  name 
...  ^.^  ;.e  may' resist  the  payment  at  law  or  file  a  bill  in 
f  he  intend  to  resist  the  payment  he  should  immediately, 
'ng  his  handwriting  has  been  imitated,  give  public    -  — 
persons  from  taking  bills  or  notes  with  his  name 


:i  against  ihe  dc  5  accep 

^0  was  forged  b^  .  the  dr 

as  proved  that  the  <  had  bee 

'  ■    '  "    and  that  h.  d  severa 

",  and  to  wh  .r  (as  it 
•ance.     And 
V  of  forger-".' 

nave  accep.  iii,  he  nad 

'  ''\   made  hii.  ..  ''^  ^<'  '..-iv  ; 
':e.     Section 


jiU  Ihe  acis  or  sucuce  01  ■ 

vfr  was  silent  when  ♦"!" 

d  nothing  to  r)>  lie 

Mm   rin'';    Tohn   ^.  ,_.]„mc 

.,  who  \i'  '  divide 


.3'>-' 


islKim    Weaver,    wl 
AiiOthcr  of  the  plai: 
said   note   was   rep> 
Ogletree,  and  tli"" 
over  to  Webb  t' 
Webb  retUT 
taken  out  b 
Weaver,  re. 
years  that  h 
lently  used 
that  if  rb'- 
others  i 
fied    ' 


ieiig-th  c 

The  , 
on  tlie  note 

A  new  tr 

was  nnsup]_. 

' -■'  'ticai,  ... 

I  was  re 

jjR'JW  N,    C 

showed  thai 
father,  Ishani  \> 
"':i:':  vns  known 
of  his  f. 
...     ,    .  tiot  authui  ...^ 
Weaver,  John  Webl 
twelve  or  fifteen  hur. 
two,  in  order  that  li 
dollars  to  some  reh' 
Weaver.     He  does   . 


-'Vited    to   $1,225 
of  his  knowledg' 
line   of    Philemot: 
ni.-ii.:  a'Au   uiother  were  turneii 
Jed  for  the  j^urpose  aforesaic' 
r  said  $500  w:«i 
-.  called  on  Ishan 
t  he  had  known  fo 
-,  .     :       a  John  S.  had  fraudu 
le  would  not  pay  the  note,  adding 
:  might  pay  it,  but  as  there  were 
:ide  the  matter.    John  Webb  testi 
T  for  the  purpose  of  hav- 
i'.vo,  hv^  said  "go  and  sei 
lay  ui   two  John  brought  him  thi 
•us  society,  signed  as  was  the  ol 
id  Isham  made  no  impression  or, 
.  ,  genuine  signature.    It  was  shown 
er  denied  the  genuineness  of  the  sig- 
-State. 

ry  that  a  party  may  bind  himself  to 
..'v.  either  by  express  or  implied  ratiii 
■^  when  a  party  adopts  and  confirm; 
,   and   assumes   the   liability  thu: 
..;id  this  relates  back  to  the  origins 
'on  arises  when  the  party  sought  to  b 

•  i  act  is  informed  of  it  and  does  nc 

•  and  does  not  dissent  from  it  for  an; 

'  t'ffs  for  the  principal  and  intere>: 

^-oii  L.iC  grounds  that  the  verdic; 
c,  and  because  such  charge  wa^ 
■lated  to  mislead  the  jur-      ^I- 
assigned  as  error. 

"to  the  jury  in  this 
risir!<?f  the   name   oi 

cb,  and  that  thr- 
-  no  steps  to  ^tov 
nvone  interested  . 
language  of  L- 
S.  Weaver  for 
:he  note  divided 
f  some  five  huii  .: 
.\^\bb  to  go  to  Jorfjn  vS. 
jven  intimated  to  Webb 


II 


REQUISITES.  363 

that  the  note  was  not  genuine,  or  that  he  was  not  bound  to  pay- 
it.  Webb  went  to  John  S.  Weaver  as  he  was  directed,  who  told 
him  all  was  right,  to  make  the  calculation,  and  he  would  have  it 
arranged  as  he  wished,  and  in  a  day  or  two  he  returned  to  him 
the  two  notes  signed  with  the  names  of  himself  and  his  father,  for 
an  amount  equal  to  the  note  he  had  presented  to  Isham  Weaver; 
and  Isham  Weaver  admits  in  his  testimony  that  the  note  now  sued 
on  is  dated  about  the  time  of  the  call  on  him  by  Webb,  when  he 
directed  him  to  see  John  S.  Weaver.  When  this  note  was  presented 
to  Isham  Weaver  for  payment  by  Mr.  Simms,  the  attorney,  he 
swears  that  he  would  have  told  Simms  that  the  note  was  not  his 
act,  but  it  involved  his  son  and  he  was  ashamed. 

We  think  the  jury  were  authorized  by  the  evidence  to  find  that 
John  S.  Weaver  had  authority  to  sign  the  name  of  his  father  to 
the  note,  or  if  not,  that  the  father,  by  his  conduct,  ratified  the  act 
of  the  son  done  without  authority,  and  made  it  his  own  act  and 
deed,  and  that  he  will  not  now  be  heard  to  deny  its  validity,  when, 
by  his  conduct,  he  has  induced  others  to  act  upon  the  belief  that 
all  was  right.  Mr.  Chitty,  in  his  treatise  on  Bills  of  Exchange,  p. 
2.J,  lays  down  the  rule  as  follows :  "A  person  may  become  drawer, 
endorser  or  acceptor,  not  only  by  his  own  immediate  act,  but  also 
by  that  of  his  agent  or  partner.  When  a  party  insists  that  his  name 
has  been  forged  he  may  resist  the  payment  at  law  or  file  a  bill  in 
equity.  If  he  intend  to  resist  the  payment  he  should  immediately, 
after  hearing  his  handwriting  has  been  imitated,  give  public  notice, 
cautioning  persons  from  taking  bills  or  notes  with  his  name  thereon 
without  first  applying  to  him." 

In  Barber  v.  Gingell,  3  Esp.  N.  P.  C,  p.  60,  it  was  held  as  fol- 
lows :  "Action  against  the  defendant  as  acceptor,  who  proved  that 
the  acceptance  was  forged  by  Taylor,  the  drawer,  in  answer  to 
which  it  was  proved  that  the  defendant  had  been  connected  in  busi- 
ness with  Taylor,  and  that  he  had  paid  several  bills  drawn  as  the 
present,  by  Taylor,  and  to  which  Taylor  (as  it  was  supposed)  had 
written  the  acceptance.  And  Lord  Kenyon  held,  that  this  was  an 
answer  to  the  case  of  forgery  set  up  by  the  defendant ;  for  though 
he  might  not  have  accepted  the  bill,  he  had  adopted  the  accept- 
ance and  thereby  made  himself  liable  to  pay  the  bill."  See  Chitty 
on  Bills,  p.  31  note.  Section  2166  of  the  code  declares  that:  "A 
ratification  by  the  principal  relates  back  to  the  act  ratified,  and 
takes  effect  as  if  originally  authorized.  A  ratification  may  be  ex- 
press or  implied  from  the  acts  or  silence  of  the  principal." 

As  Isham  Weaver  was  silent  when  the  note  was  presented  to 
him  by  Webb,  and  said  nothing  to  notify  Webb  that  the  note  he 
held  and  presented  on  him  and  John  S.  Weaver,  was  not  genuine 
as  to  him,  but  referred  him  to  John,  who  promptly  agreed  to  divide 
the  note  and  give  the  two  smaller  notes  as  desired,  and  soon  after 


364  RATIFICATION. 

brought  the  notes,  with  the  name  of  himself  and  his  father  upon 
them,  we  think  this  silence  misled  Webb  and  caused  him  to  ac- 
cept the  new  notes  for  the  old  one,  and  to  give  further  time,  when 
if  the  truth  had  been  told,  he,  or  those  whom  he  represented,  would 
most  probably  have  taken  steps  to  secure  the  amount  while  John 
S.  Weaver  had  property.  Under  the  state  of  facts  made  by  this 
record  and  the  authorities  referred  to,  we  are  of  the  opinion  that 
the  court  below  did  not  err  in  refusing  to  set  aside  this  verdict, 
and  grant  a  new  trial. 
Judgment  affirmed. 


EBERTS  AND  ABBOTT  v.  SELOVER. 
1880.     Supreme  Court  of  Michigan.     44  Mich.  519. 

CooLEY,  J. — This  is  an  action  brought  to  recover  the  subscrip- 
tion price  of  a  local  history.  The  subscription  was  obtained  by 
an  agent  of  the  plaintiffs  and  defendant  signed  his  name  to  a  promise 
to  pay  ten  dollars,  on  the  delivery  of  the  book.  This  promise  was 
printed  in  a  little  book  made  use  of  for  the  purpose  of  obtaining 
su.,ch  subscriptions,  and  on  the  opposite  page,  in  sight  of  one  sign- 
ing, was  a  reference  to  "rules  to  agents,"  printed  on  the  first 
page  of  the  book.  One  of  these  rules  was  that  "no  promise  or 
statement  made  by  an  agent  which  interferes  with  the  intent  of 
printed  contract  shall  be  valid,"  and  patrons  were  warned  under 
no  circumstances  to  permit  themselves  to  be  persuaded  into  signing 
the  subscription  unless  they  expected  to  pay  the  price  charged.  From 
the  evidence,  it  appears  that  when  Schenck,  the  agent,  solicited 
his  subscription,  the  defendant  was  not  inclined  to  give  it,  but 
finally  told  the  agent  he  would  take  it  provided  his  fees  in  the  office 
of  justice,  then  held  by  him,  which  should  accrue  from  that  time 
to  the  time  of  delivery  of  the  book,  should  be  received  as  an  equiva- 
lent. The  agent  assented,  and  the  defendant  signed  the  subscrip- 
tion, receiving  at  the  same  time  from  the  agent  the  following  paper : 

Coldwater,  April  29,  1878. 

Mr.  Isaac  M.  Selover  gives  his  order  for  one  copy  of  our  history, 
for  which  he  agrees  to  pay  on  delivery  all  the  proceeds  of  his  office 
as  justice  from  now  till  the  delivery  of  said  history. 

Eberts  &  Abbott,  per  Schenck. 

The  plaintiffs  claim  that  the  history  was  duly  delivered,  and 
they  demand  the  subscription  price,  repudiating  the  undertaking 
of  the  agent  to  receive  anything  else,  as  being  in  excess  of  his 
authority  and  void.  The  defendant  relies  on  that  undertaking,  and 
has  brought  into  court  $4.27  as  the  amount  of  his  fees  as  justice 


I 


...med.     Th..  -  th<^  nr,e^^ 

^o  far  as  they  c. 
erfectly  true,  as 
acfent  was  in  e  .  ie- 


:n.iy    i'a 
'  that  the 
not  by  any  me: 
subscription. 

'  lintiffs'  case  requires  all  mak 

ijurchase  of  their  bo<  ic   this,  it 

•       that  the  minds  of  •  c;  rnet  on  su 

■.     The  -  alone  siiows   t 

-,.    1,;  arently,  ;  ,      -J  to  take  the  h< 

lerefor  on  delivery  the  sum  ot  ten  dollars.    But  the  cc 
us  paper  given  back  by  the  agent  constitutes  a  part   -■    imx. 
rontract  and  the  two  must  be  taken  and  considered  together. 
Green,  Walk.  Ch.  5  '  '      m  v.  Haggart,  17  Mich.  273. 

.:e  two  together  it  i.  at  the  defendant  never  as- 

:  iu  any  purchase  except  ujj\ju  the  terms  that  the  plaintiffs 
i  accept  his  justice's  fees  for  the  period  named  in  full  pay- 
for  the  book.  If  this  part  of  the  agreement  is  void,  the  whole 
to  the  ground,  for  defendant  has  assented  to  none  of  which 
s  not  a  part.  When  plaintiffs  discovered  what  their  agent 
'  .  two  courses  were  open  to  them:  to  ratify  his  o 
idiate  it.  If  the}'-  ratHled  it.  they  must  accept  ^ 
,1    10    take.      If    they    •-•  '    it,    they    r   ■ 

■-  the  book  imder  it.     I  camiot  rati' 

■  tliem,  and  repudiate  so  far  as  it  does  not  a; 
^ts.     They  must  deal  with  the  defendant'?  ^  ■ 
.  and  cannot  make  a  new  contract  by  a  sel>j 
■'^  rately  he  has  ■•   ■  'ed.^ 

nt  must  be  h  costs 

jstices  concur rcii 

ttled  that 

■f  the  Of 
as  to  tht 
.il  rule  is 

a  CClU.i  i:.. 

ler,  J.,  in  31 


^04 


II  :>:■;. 


•  the.  notes, 

.vc  think  Ti' 

cc;>T  ihe  new  n'. 
} ''  '  ht  truth  had 
1  Obt  probably 
S.  Weaver 
record  and 
the  court  b 
and  grant  ?■ 
[udgmer 


T     tilt;    it.'nt 

ed  to,  vvv" 
refusing. 


'    father  upo 

.1]   him  to   a 

'.er  time,  whc 

rented,  woul 

t  while  Jol. 

ul  litoi.-  made  by  th 

ire  of  the  opinion  th; 

3 side  this  verdic 


.1  Oi'"  MiCHiGAM.      44  Iviich.   519. 


Hie  ev 
his   sul ' 
finally 
of  justiv..,, 
to  the  time 
lent.     -"" 
tion,  re 


-aac  M.  ■ 
C-.  agree- 


they  demand  the  s 
of  n  to  re 

aui  id  void. 

has  brought  into  c 


:tion  brought  to  recover  the  subscrii 
}'.     The  subscription  was  obtained  L 
defendant  signed  his  name  to  a  promi- 
■  y  of  the  book.     This  promis< 
3  of  for  tlie  purpose  of  obta 
!)posite  page,  in  sight  of  one 
-.:;   to  agents,"   printed  on   the    .: 
these  rules  was  that  "no  promise  « 
;!.  which  interferes  with  the  intent  • 
did."  and  patrons  were  warned  undi 
-^  to  be  persuaded  into  si  . 
u:>  pay  the  price  charged. 
,Mitn   Schenck,   the  agent,   soi 
was  not   inclined   to  give   i. 
ke  it  provided  his  fees  in  the 
iiich  should  accrue  from  that 
■k,  should  be  received  as  an  ei; 
'    '      '  rr,!   signed  the  sul: 
ii  the  following  j; 
>ril  29,  187.S 
'py  of  our  hi 
proceeds  of  his 
.  ,„...,  history. 
ts  &  Abbott,  per  Schencl 
■or}'  was   duly   deliv^- 
.    renudinting   the  11: 


amount  of  his  fees  as  justu 


REQUISITES.  365 

for  the  period  named.  This  statement  of  facts  presents  the  ques- 
tions at  issue,  so  far  as  they  concern  the  merits. 

It  may  be  perfectly  true,  as  the  plaintiff  insists,  that  this  under- 
taking of  the  agent  was  in  excess  of  his  authority;  that  the  de- 
fendant was  fairly  notified  by  the  entries  in  the  book  of  that  fact, 
and  that  consequently  the  plaintiffs  were  not  bound  by  it,  unless 
they  subsequently  ratified  it.  Unfortunately  for  their  case,  the 
determination  that  the  act  of  the  agent  in  giving  this  paper  was 
void  does  not  by  any  means  settle  the  fact  of  defendant's  liability 
upon  the  subscription. 

The  plaintiffs'  case  requires  that  they  shall  make  out  a  contract 
for  the  purchase  of  their  book.  To  do  this,  it  is  essential  that 
they  show  that  the  minds  of  the  parties  met  on  some  distinct  and 
definite  terms.  The  subscription  standing  alone  shows  this,  for 
it  shows,  apparently,  that  defendant  agreed  to  take  the  book  and 
pay  therefor  on  delivery  the  sum  of  ten  dollars.  But  the  contempo- 
raneous paper  given  back  by  the  agent  constitutes  a  part  of  the 
same  contract  and  the  two  must  be  taken  and  considered  together. 
Bronson  v.  Green,  Walk.  Ch.  56;  Dudgeon  v.  Haggart,  17  Mich.  273. 
Taking  the  two  together  it  appears  that  the  defendant  never  as- 
sented to  any  purchase  except  upon  the  terms  that  the  plaintiffs 
should  accept  his  justice's  fees  for  the  period  named  in  full  pay- 
ment for  the  book.  If  this  part  of  the  agreement  is  void,  the  whole 
falls  to  the  ground,  for  defendant  has  assented  to  none  of  which 
this  is  not  a  part.  When  plaintiffs  discovered  what  their  agent 
had  done,  two  courses  were  open  to  them :  to  ratify  his  contract, 
or  to  repudiate  it.  If  they  ratified  it,  they  must  accept  what  he 
agreed  to  take.  If  they  repudiated  it,  they  must  decline  to 
deliver  the  book  under  it.  But  they  cannot  ratify  so  far  as  it 
favors  them,  and  repudiate  so  far  as  it  does  not  accord  with  their 
interests.  They  must  deal  with  the  defendant's  undertaking  as  a 
whole,  and  cannot  make  a  new  contract  by  a  selection  of  stipulations 
to  which  separately  he  has  never  assented.^ 

The  judgment  must  be-  affirmed  with  costs. 

The  other  justices  concurred. 

^  "The  law  is  well  settled  that  the  principal  cannot,  of  his  own  mere  authority, 
without  the  consent  of  the  other  party,  ratify  a  transaction  by  his  agent  in 
part,  and  repudiate  it  as  to  the  rest.  He  must  either  adopt  the  whole  or  none. 
And  hence,  the  general  rule  is  deduced,  that  where  a  ratification  is  established 
as  to  a  part,  it  operates  as  a  confirmation  of  the  whole  of  that  particular  trans- 
action of  the  agent."  Miller,  J.,  in  Krider  v.  Trustees  of  Western  College,  31 
la-  547,  550. 


366  RATIFICATION,  • 

Section  3. — Effects  of  Ratification. 

COMMERCIAL  BANK  OF  BUFFALO  v.  WARREN. 
1857.     Court  of  Appeals  of  New  York.     15  N.  Y.  577. 

This  action  was  brought  in  the  former  recorder's  court  of  Buffalo, 
against  the  defendant,  as  one  of  the  firm  of  Smith  &  Warren,  the 
other  partner  having  been  discharged  under  the  bankrupt  law  of 
1 841.  Upon  the  trial  the  following  facts  were  proved.  Smith  and 
Wan-en  were  law  partners ;  Smith  made  his  individual  promissory 
note  for  $216.69,  payable  to  the  order  of  Smith  &  Warren ;  endorsed 
the  same  in  the  firm  name ;  and  procured  it ;  to  be  discounted  by  tlie 
Commercial  Bank  of  Buffalo,  of  which  he  was  then  a  director  and  the 
legal  counsel.  The  note  was  made  by  Smith,  for  his  individual  benefit, 
and  for  no  purpose  connected  with  the  business  of  the  firm.  It  was 
endorsed  by  him  in  the  fi.rm  name,  without  the  knowledge,  consent  or 
authority  of  Warren,  who  never  received  any  benefit  therefrom.  All 
these  facts  were  known  to  the  plaintiff  at  the  time  the  note  was 
discounted,  and  the  endorsement  was  made  by  Smith  at  its  sug- 
gestion. After  the  note  became  due,  and  the  defendant  was  charged 
as  endorser,  he  repeatedly  admitted  that  he  was  liable  upon  the  note, 
and  promised  to  pay  the  same.  The  recorder,  under  exception, 
directed  the  plaintiff  to  be  nonsuited.  Upon  appeal  to  the  supreme 
court,  the  judgment  of  the  recorder's  court  was  reversed,  and  a  new 
trial  ordered.     The  defendant  appealed  to  this  court. 

Johnson,  J.. — It  was  proved  that  the  endorsement  of  Smith  & 
Warren,  on  which  the  defendant  is  sought  to  be  charged,  was  written 
by  Smith,  the  maker  of  the  note,  without  the  knowledge,  consent,  or 
authority  of  the  defendant,  for  Smith's  own  individual  benefit,  and 
for  no  purpose  connected  with  the  business  of  the  firm  of  Smith  & 
Warren,  and  neither  for  the  benefit  of  the  firm,  nor  Warren  ;  and  that 
all  these  facts  were  known  to  the  plaintiff  at  the  time  of  the  endorse- 
ment. Upon  these  facts  no  question  is  made,  nor  could  any  be  made, 
of  Warren's  being  not  liable.  There  is  proof  of  several  subsequent 
promises  on  the  part  of  Warren  to  pay  the  note,  and  of  acknowledg- 
ments of  his  liability  as  endorser ;  but  there  is  no  proof  in  respect  to 
the  existence  of  any  independent  consideration  moving  to  him  or 
from  the  plaintiff.  If,  therefore,  any  independent  consideration  is 
necessary  to  sustain  his  liability,  the  plaintiff  must  fail.  If  there 
had  been  an  original  assent,  on  the  part  of  the  defendant,  to  the  en- 
dorsement, he  would  have  been  bound  by  it,  even  if  the  note  had  been 
taken  by  the  bank  on  account  of  a  precedent  debt  as  collateral  se- 
curity. (Bank  of  Rutland  v.  Buck,  5  Wend.  66.)  That  would  have 
presented  the  common  case  of  an  accommodation  endorser,  whose 
obligation  has  been  used  as  he  intended  it  should  be.     Yet,  in  that 


hero  w  -.i]  !  hnve  he.ev  ;i.  nor  from 

xi  sting 

luent  y.'-  .  ild  not  ]■  l^- 

1  is  cerLaisiiv  ^'■^■'-  "'    "'" 
rity  ;  and  I  clo  not 
f  ralifir-    ' 
_ .  in  the 

aent.    In  many  of  tiie  ca. 
_r.  u}X)n  the  signature  of  ; 
;  the  firm  business,  has  l)ecn 
largeable  in  law  with  notice  i    .lju 

at  to  show  a  special  assent  to  f  the  fin 

reditar  is  in   ur.  use  he   .. 

:  in  fact  in  t!^  -  ■  :s  he  wa- 

\v.  '  In  ;  i-  a  sLibvequeut  ratification  ha 

id  to  be  .•  to  charrc  vh.    i>:>'t;icr  who  ■:  . - 

e  use  of  his  name;  and  seen  suggest l 

■■-''^  "   .-^'■'^- .1;  -  -fi^ectuai.  .:.,/    ■-.■.iv;,jcndent  consideict-;.. 
rench.  2  Cush.  31^:  Wilson  v.  Wii- 

unless 

by  an 

ne  oi  h  ich  are 

"ts  drir:  .  .^uestion 

lefend;'  le  the  unauthorized  act 

dy  for  I.;..   .,..iLv.:.  ■  '    -  — ^^      '■■<■''■•   •— "^ter 

to  make  out  a  ratifica  !\ 


';  Xii  ll;S   '■ 

He  mii= 
ne  was, 


:x  Part 


ai:is   I  1 
it  priv:^ 


fe 


:is 
have   great   v  1 

'1-"  ■  'f  his  nar.. ..  o 

lis  may  not ;  he 

•  iMiher  he  will  01  v.  i;i  ■ 
ner,  thotip-h  rvrisfinallv  m 


It  ratification  by  ;e  previous 


36o 

Section  3. —Effects  of  "Rratif^ri. 

.Kkr.A. 


This  actii  ^  court  of  Buffalc 

ajjainst  the  -h  &  Warren,  th 

other  pa'-tr-  .   bankrupt  law  ( 

1 841.  i  proved.     Smith  an 

Wane.  ,  ,      .  individual  promissoi 

H!  '  rder  of  Smith  &  Warren;  endorse 

•  ■  ■  • '  "      '  it ;  to  be  discounted  by  tl: 

vas  then  a  director  and  tb 

:  y  ^"^ifh,  for  his  individual  benefi 

.1.1  the  husirx^'^s  of  the  firm.    It  wa 

viedge,  consent  < 

at  therefrom.   Ai 

.c  time  the  note  wa 

.......v.   by  Smith  at  its  sul. 

nd  the  defendant  was  charge' 
i  liiat  he  was  liable  iipon  the  not<. 
The  recorder,   under  exceptior 
tppeal  to  the  sup 
.IS  reversed,  and  n 
tiiis  court. 
..   endorsement  of  .-..,,.... 

ig^ht  to  be  charged,  was  writtt-i 
r-\  >ut  the  knowledge,  consent,  o 

Mil  I'  ."s  own  individual  benefit,  an 

for  '  f  the  firm  of        '  ' 

Wc  .  nor  Warren 

all  the.-  u  the  time  of  the  en' . 

me;-. I.    i  ie,  nor  could  any  be  ; 

ct  ^ere  is  proof  of  several  subst 

,^..  •  ri,.  ,    ,f^   „,nj  Qf  acknowl-:  i- 

•  roof  in  respect  t 
";■  him  o: 
.ration   1; 
dl     If  • 
..nt,to  tl; 
e  wouif  I  ■ .  even  if  the  note  had 

...  ..v..  .  ivinir  .-  lent  debt  as  collatera; 

curity.  .d.  66.)    That  would  hav. 

presenlt'.'  vi^  nodation  endorser,  vV   ' 

obligation  has  b  r,  should  be.     Yet,  in 


EFFECT.  367 

case,  there  would  have  been  no  consideration  moving;  to  him,  nor  from 
the  plaintiff.  It  would  have  stood  upon  the  consideration  existing 
between  Smith  and  the  bank.  That  being  so,  I  see  no  reason  w^hy  his 
subsequent  assent  should  not  place  him  in  the  same  position.  The 
maxim  is  certainly  general,  that  a  ratification  is  equivalent  to  a  prior 
authority ;  and  I  do  not  find  that  it  has  ever  been  held  that  any  special 
sort  of  ratification  is  necessary,  when  the  act  to  be  ratified  is  the 
giving,  in  the  name  of  the  principal,  an  accommodation  note  or  en- 
dorsement. In  many  of  the  cases  in  which  the  responsibility  of  one 
partner,  upon  the  signature  of  the  firm  name  by  another  partner,  out 
of  the  firm  business,  has  been  litigated,  the  creditor  has  been  held 
chargeable  in  law  with  notice  of  that  fact ;  and  has,  therefore,  been 
put  to  show  a  special  assent  to  the  use  of  the  firm  name  in  that  way. 
The  creditor  is  in  no  w^orse  position  because  he  appears  to  have 
known  in  fact  in  this  case,  what  in  the  others  he  was  held  bound  in 
law  to  know.  In  those  cases  a  subsequent  ratification  has  been  fre- 
quently said  to  be  sufficient  to  charge  the  partner  w-ho  had  not  au- 
thorized the  use  of  his  name ;  and  it  has  never  been  suggested  that 
to  make  such  a  ratification  effectual,  an  independent  consideration 
was  necessar}-.  (  Sweetser  v.  French,  2  Cush.  315;  Wilson  v.  Wil- 
liams, 14  Wend.  158;  Nixon  v.  Palmer,  4  Seld.  398.)  Indeed,  unless 
there  is  a  general  exception  of  accommodation  paper,  made  by  an 
agent  in  the  name  of  his  principal,  from  the  ordinary  rules  which  are 
applicable  to  acts  done  by  an  unauthorized  agent,  there  is  no  question 
about  the  defendant's  responsibility.  Where  the  unauthorized  act 
is  apparently  for  the  benefit  of  the  principal,  a  very  slight  matter 
will  serve  to  make  out  a  ratification ;  W'here  the  act  is  not  apparently 
for  his  benefit,  clearer  evidence  of  ratification  should  be  required. 
When,  however,  it  plainly  appears,  that  he  does  mean  to  ratify  that 
which  has  been  done  in  his  name,  the  law^  does  not  compel  us  to  deny 
him  the  privilege.  He  must  be  taken  to  have  considered  for  himself 
whether  the  act  done  was,  on  the  whole,  such  as  he  approves,  and 
desires  to  be  bound  by.  Such  a  case  may  have  presented  itself  to 
him  as  is  referred  to  by  Lord  Eldon,  in  Ex  Parte  Bonbonus,  cited  in 
Gansevoort  v.  Williams  ( 14  Wend.  140)  :  "In  many  cases  of  part- 
nership and  different  private  concerns,  it  is  frequently  necessary  for 
the  salvation  of  the  partnership  that  the  private  demand  of  one  part- 
ner should  be  satisfied  at  the  moment."  And  as  such  considerations 
\\^uld  properly  have  great  weight  with  a  partner  in  assenting 
originally  to  the  use  of  his  name;,  by  and  for  the  benefit  of  his  co- 
partner, I  see  not  why  this  may  not  also  be  allowed  to  weigh,  when  he 
comes  to  consider  w^hether  he  will  or  will  not  be  bound  by  a  use  of 
his  name  by  his  partner,  though  originally  unauthorized. 

The  judgment  should  be  afifirmed. 

Selden,  J. — It  is  a  part  of  the  established  doctrine  of  the  law  of 
agency,  that  a  subsequent  ratification  by  the  principal  of  the  previous 
unauthorized  act  of  an  agent,  or  of  one  assuming  to  be  such,  is  in  all 


368  RATIFICATION. 

respects  equivalent  to  an  original  authority.  This  doctrine  has  been 
repeatedly  applied  to  cases  of  the  unauthorized  use  of  the  partnership 
name,  by  one  of  the  partners,  for  his  own  private  benefit.  It  is,  how- 
ever, contended  by  the  defendant's  counsel,  that  the  ratification  in 
such  cases  operates  not  directly,  but  merely  as  presumptive  evidence 
that  the  act  was  originally  done  by  the  authority  of  the  principal. 

Were  this  position  established,  it  would  inevitably  follow  that  the 
judgTiient  in  this  case  must  be  reversed ;  as  the  evidence  of  a  want  of 
authority  is  so  conclusive,  as  efifectually  to  repel  any  contrar}-  in- 
ference to  be  drawn  from  the  subsequent  assent  of  the  defendant. 

But  this  view  of  the  modus  operandi  of  a  ratification,  is  not  sus- 
tained by  the  authorities.  On  the  contrary,  they  all  proceed  upon  the 
assumption  that  a  ratification  is,  per  se,  a  confirmation  of  the  act  of 
the  agent.  In  none  of  the  cases  do  I  find  it  intimated  that  it  operates 
merely  as  evidence  of  an  original  authority ;  nor  have  I  met  with  any 
case  in  which  the  usual  efifect  of  a  ratification  was  prevented,  by  proof 
of  an  actual  want  of  authority  on  the  part  of  the  agent. 

Whether  or  not,  therefore,  the  doctrine  that  a  ratification  is  not 
merely  evidence  of,  but  equivalent  to,  an  original  authority,  can  be 
made  to.  harmonize  with  the  general  principles  and  analogies  of  the 
law,  it  appears  to  be  too  firmly  established  to  be  shaken.  Of  its  ap- 
plicability to  the  present  case  there  is  no  doubt.  It  is  clear,  also,  that 
tio  valid  distinction  can  be  taken  between  a  ratification  of  and  a 
promise  to  perform  the  engagement  entered  into  by  the  agent.  The 
substance  of  the  ratification  consists,  in  all  cases,  in  the  consent  of 
the  principal  to  be  bound  by  the  act  of  the  agent.  Nor  do  I  see 
that  the  effect  of  the  defendant's  voluntary  assumption,  in  this  case, 
of  the  obligation  ostensibly  imposed  upon  him  by  the  act  of  his 
partner,  can  be  prevented  by  the  knowledge,  on  the  part  of  .  the 
plaintiff,  of  the  want  of  authority  of  such  partners.  No  such  dis- 
tinction is  suggested  in  any  of  the  cases,  although  in  some  of  them, 
the  fact  that  the  agent  had  exceeded  his  powers,  must  have  been 
either  actually  or  presumptively  known  to  the  plaintiff. 

My  conclusion  therefore  is,  that  the  judgment  of  the  supreme 
court  should  be  affirmed. 

Shankland,  J. — If  the  bill  of  exceptions  must  be  considered  as 
containing  the  statement  of  facts  established  on  the  trial,  instead  of 
the  evidence  of  facts,  then  the  judge  at  the  trial  correctly  denied  the 
plaintiff's  request  to  submit  to  the  jury  the  question  of  Smith's  au- 
thority to  endorse  the  defendant's  name  on  the  note.  The  supreme 
court  granted  the  new  trial  upon  that  point,  but  seemed  not  to  have 
adverted  to  the  language  of  the  bill  of  exceptions,  and  to  have  con- 
founded it  with  a  case.  Treating  it  as  a  case,  and  the  proof  as  mere 
evidence,  they  were  justified  in  granting  a  new  trial ;  for  there  was 
abundant  evidence  to  go  to  the  jury  and  to  justify  them  in  finding  an 
original  authority  to  Smith  to  endorse  the  firm  name  on  the  note.  But 
I  am  of  opinion  the  bill  of  exceptions  must  be  considered  as  contain- 


I 


US'.    DO 

»m  the 


:o  the  bank  which  di- 


■^sing-  t<:- 
.:  rule  tl 

.^_  It   fnr   ,,  ...:_... :    .  ...    ,. ...,„. 

rwards,  ovvkdge,  promise  to  pay  it  accord- 

would  aii.'.M.n^L  i.>  .J.    ■■■  ■^— '-'•■■    ■'■'   -''-■2  act."      '■■'■'•       -. 
Peur.  ,&  Watts'  P.  etzer  v. 

""      ^13;  3  H' 
i  by  tb- 
.e  sub^eqiier  Lijcrt;  s 

[.     Inn:,;--  .   I  :.  t!, 


le  to  be  usci 


"ere  this  :  that  the 

■  '''•'^'  '"'  want  of 

;:rar>'  in- 
'•^luiant. 

tbe 

.1  of 

'1  that  it  operates 

-i  I  met  with  any 

■  vented,  hy  proof 

ation  is  not 

.  can  be 

3  of  the 

ken.     Of  its  ap- 

.   ■    '  .  't^ar,  also,  that 

■n  of  and  a 
iiMT.  agfent.    Th- 
m  the  consent  «' 
Nor  do  I  see 
ion,  in  this  case. 
1  by  the  act  of  his 
1,1  the  part  of  the 
' 'o  such  "■ 
'  y  ..ome  of  the  ill. 
must  have  been 
iff. 
of  the  supreme 

onsidered  as 

i  tne  trial,  instead  of 

•rrectly  d^'"^'^''  '^^'• 

ii  of  Sn; 

i,;<..'te.     The  siii)TfTi'.-* 

!  seemed  not  to  have 


trial ;  for  there  \va^ 
fy  them  in  findine  ^ti 
nne  on  the  note.- 


i 


EFFECT.  369 

ing  a  statement  of  facts,  the  result  of  evidence,  and  that  it  must  be 
considered  as  a  conceded  fact  that  Smith  had  no  authority  from  the 
defendant  to  use  his  name  at  the  time  the  endorsement  was  made. 
The  new  trial  cannot  be  sustained  on  the  basis  assumed  by  the 
supreme  court.  It  becomes  necessary,  therefore,  to  examine  the 
other  grounds  urged  by  the  respondent  to  support  the  order  for  a  new 
trial. 

The  plaintiff  proved  that  after  the  note  fell  due,  or  about  that  time, 
the  defendant  admitted  in  express  terms  that  he  was  liable  on  the  note 
as  endorser,  and  promised  to  pay  it.  This  raises  the  question  wdiether, 
when  one  member  of  a  co-partnership  endorses  his  own  note  (given 
in  form  to  the  firm)  with  the  firm  name,  without  the  knowledge  or 
assent  of  his  partner,  and  for  his  individual  benefit,  and  these  facts 
are  known  to  the  bank  which  discounts  it,  the  firm  can  be  made  liable 
by  a  subsequent  assent  thereto  and  promise  to  pay  the  same. 

The  authorities  all  speak  one  language  on  the  subject,  and  affirm 
that  the  fimi  is  liable.  The  same  rule  prevails  in  the  case  of  an  as- 
sumed agent  professing  to  act  for  a  principal.  Story  on  Agency, 
§  253,  states  the  rule  thus :  "So,  if  a  person  should  sign  or  endorse 
a  note,  as  agent  for  another,  without  authority,  and  the  principal 
should  afterwards,  upon  full  knowledge,  promise  to  pay  it  accord- 
ingly, that  would  amount  to  a  ratification  of  the  act."  (Byles  on 
Bills  34;  2  Penr.  (&  Watts'  P.  R.  160-177;  Sweetzer  v.  French,  2 
Cush.  309;  9  Ala.  313;  3  Humph.  597;  10  Verm.  268;  4  Seld.  398.) 

But  it  is  objected  by  the  appellant's  counsel  that,  in  order  to  be 
bound  by  the  subsequent  ratification,  there  should  be  a  consideration 
to  support  it.  In  none  of  the  cases  cited  is  the  subject  of  a  considera- 
tion, to  support  the  promise  of  ratification,  alluded  to  as  necessary. 
But  it  has  been  held  that  it  is  not  necessary  to  ratify  in  writing, 
although  a  writing  was  necessary  to  the  validity  of  the  original  agree- 
ment ;  and  I  am  of  opinion  that  no  new  consideration  is  necessary 
to  sustain  the  ratification.  (IMcClean  v.  Dunn,  4  Bing.  722;  Davis 
V.  Shields,  24  Wend.  325  :  Lawrence  v.  Taylor,  5  Hill  107.)  By  the 
act  of  ratification,  the  parties  are  placed  in  the  same  position,  in 
all  respects,  as  if  the  contract  had  been  originally  authorized. 

If  the  defendant  would  have  been  liable  on  this  note,  had  he  au- 
thorized his  name  to  be  used  by  Mr.  Smith  at  the  time  the  endorse- 
ment was  made,  he  is  liable  now.  Of  his  liability,  under  such  cir- 
cumstances, there  can  be  no  doubt.  The  judgment  should  be  affirmed 
and  a  new  trial  ordered,  with  costs  to  abide  the  event. 

All  the  other  judges  concurring. 

Judgment  affirmed.^ 

*  "The  rule  of  law,  that  omnis  ratihabitio  refrotrahitur,  etc.,  seems  only  appli- 
cable to  cases  where  the  conduct  of  the  parties  on  whom  it  is  to  operate,  not 
being  referable  to  any  agreement,  cannot  in  the  meantime  depend  on  whether 

24 — Reinhard  Cases. 


r 


370  RATIFICATION. 

REYNOLDS  v.  DOTHARD  et  al. 
1847.     Supreme  Court  of  Alabama,     ii  Ala.  531. 

Error  to  the  chancery  court  of  Talladega. 

The  bill  was  filed  by  the  plaintiff  in  error,  and  states,  in  substance, 
that  T.  &  W.  Dothard  recovered  before  a  justice  of  the  peace  of 
Randolph  county,  four  judgments  for  $50  each,  against  one  Weir, 
and  one  Adrian,  from  which  an  appeal  was  prayed  by  Weir,  tO'  the 
next  county  court  of  Randolph,  and  a  bond  executed  in  the  penal  sum 
of  $455,  conditioned  to  prosecute  an  appeal  on  the  judgments  so 
obtained,  to  which  the  name  of  the  plaintiff'  in  error  was  signed,  with- 
out his  knowledge  or  consent.  That  he  never  saw  the  bond  until 
after  the  rendition  of  a  judgment  upon  it  against  him  in  the  county 
court,  as  surety  for  the  appeal,  and  that  he  did  not  execute  it,  or 
authorize  any  one,  either  verbally  or  in  writing,  to  execute  it  in  his 
najne,  and  that  it  is  a  base  forgery.  That  Adrian,  a  party  to  the 
notes,  has  property  sufficient  to  satisfy  the  judgment,  but  that  the 
sheriff  is  about  to  levy  and  sell  his  property  to  satisfy  it.  Weir  hav- 
ing absconded,  etc.  An  injunction  was  decreed  according  to  the 
prayer  of  the  bill. 

Thomas  Dothard,  one  of  the  firm  of  T.  &  W.  Dothard,  answered 
the  bill,  and  as  the  material  allegation  of  the  forgery  of  the  complain- 
ant's name  denies  all  knowledge  of  the  facts,  but  states  his  behef,  and 
charges,  that  Weir  had  full  authority  to  sign  the  name  of  complain- 
ant to  the  appeal  bond. 

Adrian  also  answers,  and  states  that  he  was  merely  the  surety  of 
Weir.  He  denies  all  knowledge  of  the  alleged  forgery,  but  states  his 
belief  from  information,  that  if  Weir  did  sign  the  name  of  complain- 
ant to  the  bond,  he  was  authorized  to  do  so';  and  that  Weir,  when  he 
left  the  state,  placed  funds  in  the  complainant's  hands  to  satisfy  the 
judgment. 

Judgments  pro  confesso  were  taken  against  the  other  defendants. 

The  testimony  which  was  taken  in  the  cause  is  sufficiently  noticed 
in  the  opinion  of  the  court. 

The  cause  coming  on  to  be  heard  before  the  chancellor,  on  bill, 
answers,  and  proof,  he  considered  that  the  evidence  established  a 
parol  authority  to  Weir  to  execute  the  bond  in  his  name,  a  subsequent 
ratification  of  it  by  him,  and  also  that  Weir  had  placed  funds  in  his 
hands  to  discharge  the  judgment,  and  decreed  that  he  should  be 
compelled  in  equity  to  confimi,  and  give  validity  to  the  appeal  bond, 
and  dismissed  the  bill. 

An  appeal  is  prosecuted  from  this  decree  to  this  court,  and  is  now 
assigned  as  error. 

there  be  a  subsequent  ratification."'     Lawrence,  J.,  in  Right  v.  Cuthell,  5  East 
491,  499- 


>:/ON'P,   .!    -We   shall  n-.  authority 

nt  in  any  case 

:  in  the  name  o;' 

ratification  by  th' 
.    iv;jOwledge  of  all  th 
aeral,  an  admission  : 
•  act.    Much  moi 
se  to  be  arlecteu 
f  tlie  agent,  or  aiiec 
The  consequence  tv 
.d  been  legally  authc  xecute  the 

■  jeopardized,  precise^.  ,     ..  .vould  have  bv....,  ..  ..xv.  ..  ■ 
:uted  the  bond  in  person,  and  this  consequence  has  resr 
1  any  trust  reposed  by  them  in  the  agent,  b  ' 

laintift'  and  his  agent,  for  such  he  was, 
ad  to  act  for  him.     In  such  a  case,  a  - 
ne,  with  full  knowledge  of  the  facts, 
^-  if  the  agent  had  been   duly  authorized  in  the  first  in 


1864.     Supreme  Court  of  Illinois.    35  ill.  544. 

E,  J. — Strong  Wadsworth  and  James  V> 
57,  failed  in  business  in  Chicago,  having 
They   were   indebted  to  Williams,  tht 
.'Usand  dollars.    In  F  '  1861,  S! 

n  C.  Ambler  entered  'Tanger 

j  to  the  former 
i;ging  to  his  mot  _     \ 

and  Wadsworth  rec  :d  the  bai; 

'^V'-  the  name  of  S.   .   ,         .rth  ^-  '" 
into  between  Ambler.  aotin>; 

jf  the  opinic- 


103. 
bind- 

:atioii  has  a  !■ 
.y  that  an  age. 
and  that  the 
.'nt  and  effect. 
:;the  contract 


KATlFirA 


Error  to  th( 
The  bill  wa..-- 

that  T.  &  W 

Randolph  ; 

ajid  one  A' 

next  count 

of  $45 c    . 

ohfcv.r- 


Deliti 

ant  t*-- 

Ic 

n  '    , 

lUG 

Tht, 

I C--' 

i'.  the 

opin 

''"' 

cansc 

"'5.  and 

to  disc: 


siiusiaiice, 

'.■  peace  of 

u.st  one  Weir, 

>>-  Weir,  to  the 

1  Ihe  penal,  sum 

...  judgments  so 

•r  was  signed,  with- 

-a\v  the  bond  until 

i  him  in  the  county 

not  execute  it,  or 

*o  execute  it  in  his 

■     a  party  to  the 

.  i  •    ci:i>i'      ,  .       lit,  but  that  the 

^ell  his  property  to  satisfy  it.    Weir  hav- 

! junction  was  decreed  according  to  the 

ilrm  of  T.  &  W.  Dothard,  answered 
;  ition  of  the  forgery  of  the  complain- 
of  the  facts,  but  states  his  belief,  and 

■''i-"iv  to  sirn  the  name  of  complain- 

...^  .I...U  ,,..    >..:■  merely  the  surety  o. 

of  the  alleged  forgery,  but  states  his 

'-Vc\:   '•  !  sign  the  name  of  complain- 

'  -o;  and  that  Weir,  when  he 

c  complainant's  hands  to  satisfy  the 

taken  against  the  other  defendants. 

I'll    iti    the   r;ii-:;(^   i<    i:ii  ^h^'^'rlf1^•    11(11  irpd 

M   ix'r')T"e  inc  {■paiicciior,   on   fj. 
Ihnf  the  evidence  establishe<l 

■         •   -equent 
•         .^r^  in  his 
reed  that  he  should 


flip   ';1')1it";:i1   li 


a- 

tlicre  ■ 


error. 


:.;uu  IS   11' 


in  Right  V.  Cnthell,  5  F 


EFFECT.  371 

Ormond,  J. — We  shall  not  inquire  whether  a  parol  authority 
would  be  sufficient  in  any  case  to  authorize  the  execution  by  an 
agent  of  a  bond  in  the  name  of  his  principal,  because  in  this  case 
there  was  a  ratification  by  the  principal  of  the  act  after  it  was  done, 
with  full  knowledge  of  all  the  facts.  The  effect  of  such  ratification 
is,  in  general,  an  admission  that  the  agent  had  the  necessary  power 
to  do  the  act.  Much  more  so  should  this  be  the  rule  when,  as  in  this 
case,  those  to  be  affected  by  it  are  not  in  any  manner  connected  with 
the  act  of  the  agent,  or  affected  with  knowledge  of  his  want  of  au- 
thority. The  consequence  to  them  is  precisely  the  same  as  if  the 
agent  had  been  legally  authorized  to  execute  the  bond.  Their  debt 
has  been  jeopardized,  precisely  as  it  would  have  been  if  the  plaintiff 
had  executed  the  bond  in  person,  and  this  consequence  has  resulted, 
not  from  any  trust  reposed  by  them  in  the  agent,  but  by  the  conduct 
of  the  plaintiff  and  his  agent,  for  such  he  was,  though  informally 
authorized  to  act  for  him.  In  such  a  case,  a  ratification  of  the  act, 
when  done,  with  full  knowledge  of  the  facts,  should  have  the  same 
effect  as  if  the  agent  had  been  duly  authorized  in  the  first  in- 
stance.^    *    *    *2 


WILLIAMS  ET  AL.  V.  BUTLER  et  al. 

1864.     Supreme  Court  of  Illinois.     35  111.  544. 

Breese,  J. — Strong  Wads  worth  and  James  Wads  worth,  in  the 
year  1857,  failed  in  business  in  Chicago,  having  been  partners  in 
banking.  They  were  indebted  to  Williams,  the  appellant,  about 
eight  thousand  dollars.  In  February,  1861,  Strong  Wadsworth  and 
one  John  C.  Ambler  entered  into  an  arrangement  by  which  the  lat- 
ter furnished  to  the  former  the  sum  of  fifteen  hundred  and  eighty 
dollars,  belonging  to  his  mother,  Mercy  Ambler,  residing  in  Massa- 
chusetts, and  Wadsworth  recommenced  the  banking  business  in  Chi- 
cago, under  the  name  of  S.  Wadsworth  &  Co.  A  written  contract 
was  entered  into  between  Ambler,  acting  as  agent  for  his  mother, 

^A  portion  of  the  opinion  not  dealing  with  the  question  of  ratification  is 
omitted. 

-Accord:   GuHck  v.  Grover,  33  N.  J.  L.  463;  Lynch  v.  Smyth,  25  Colo.  103. 

"Where  ratified  hy  the  principal,  the  unauthorized  act  of  his  agent  is  as  bind- 
ing upon  him  as  though  previous  authority  had  been  conferred  upon  such 
agent.  The  subsequent  ratification  has  a  retrospective  effect,  and  is  equivalent 
to  a  prior  command.  To  say  that  an  agent  entered  into  a  contract  without 
authority  from  his  principal,  and  that  the  principal  subsequently  ratified  such 
contract,  is,  in  legal  intendment  and  effect,  the  equivalent  of  saying  the  agent 
was  duly  authorized  to  make  the  contract."  Searls,  C,  in  Kraft  v.  Wilson 
(Cal.),  37  Pac.  790,  792. 

See  Dingley  v.  McDonald,  124  Cal.  682. 


372  RATIFICATION. 

and  Wadsworth,  by  which  Wadsworth  was  to  attend  to  the  business 
on  a  salary  of  ten  dollars  per  week,  and  to  have  an  interest  therein 
beyond  his  wages,  the  profits  and  losses  to  accrue  to  Mercy  Ambler. 
When,  however,  they  made  the  first  settlement,  the  profits  were 
found  to  be  larger  than  had  been  anticipated,  and  Amljler  allowed 
Wadsworth  one-half  the  profits  instead  of  the  salary,  and  the  busi- 
ness continued,  afterwards,  upon  the  basis  of  a  partnership  between 
Wadsworth  and  Mrs.  Ambler.  The  entire  capital  was  furnished  by 
Mrs.  Ambler.  It  appears  that  John  C.  Ambler  was  acting  as  man- 
ager of  his  mother's  affairs,  and  that  she  was,  to  some  extent,  de- 
pendent on  him  for  support,  although  she  had  some  small  means 
which  he  invested  and  controlled  for  her  benefit,  and  which  he 
sought  to  keep  distinct  from  his  own  funds.  This  arrangement  with 
Wadsworth  was  made  without  her  knowledge,  and  she  knew  noth- 
ing of  it,  until  the  occurrence  of  the  events  which  led  to  this  suit. 
In  making  the  arrangement,  John  C.  Ambler  was  merely  acting  un- 
der his  power  as  general  agent. 

In  December,  1862,  appellant  commenced  suit  against  Strong 
Wadsworth  and  James  Wadsworth,  on  his  old  claim  against  them, 
and  in  March,  1863,  recovered  a  judgment  against  Strong  Wads- 
worth (James  not  having  been  served)  for  over  nine  thousand  dol- 
lars. An  execution  was  immediately  issued  and  levied  upon  the  fur- 
niture and  money  found  in  the  office  of  S.  Wadsworth  &  Co.  The 
money  levied  on,  amounting  to  over  six  thousand  dollars,  was  paid 
over  by  the  sheriff  to  appellant,  the  plaintiff  in  the  execution.  Im- 
mediately after  the  levy,  judgments  were  confessed  by  Strong 
Wadsworth  and  Mercy  Ambler  as  follows :  One  in  favor  of  Rutter 
et  al.  for  three  thousand  and  three  y^o  dollars,  one  in  favor  of 
Tyler  et  al.  for  eighteen  hundred  and  sixty-six  ^Vo  dollars,  and 
one  in  favor  of  Marshall  et  al.  for  sixteen  hundred  dollars,  and 
after  an  ineffectual  attempt  to  recover  by  writ  of  replevin  the 
property  levied  on,  Rutter  ct  al.  filed  a  bill  in  behalf  of  themselves 
and  the  other  creditors  of  S. .  Wadsworth  &  Co.  praying  that  the 
property  levied  on  be  decreed  to  be  the  partnership  property 
of  Strong  Wadsworth  and  Mercy  Ambler,  and,  as  such,  marshaled 
in  payment  of  their  creditors,  to  the  exclusion  of  the  individual 
creditors  of  Wadsworth.  Appellants  Wadsworth,  Mercy  Ambler 
and  the  sheriff  were  made  defendants  to  this  bill.  Williams  and 
the  sheriff  answered,  denying  the  alleged  partnership  between 
Wadsworth  and  Mrs.  Ambler,  the  oath  to  their  answer  having 
been  waived.  Mrs.  Ambler  answered,  admitting  the  alleged  part- 
nership, and  she  also  filed  a  cross-bill  setting  up  the  partnership, 
and  praying  that  the  partnership  assets  might  be  applied  in 
payment  of  partnership  debts.  On  the  final  hearing  the  court 
below  so  decreed,  and  Williams  brings  the  record  to  this  court.  It 
should  be  further  stated  that  Strons:  Wadsworth  and  Mrs.  Ambler 


■  insOiVv  ^ 
;  from  t.; 
:'rom  tlr 
ids  upo-. 
oi  Mrs.  Am 
.^  the  partnci,,  .  ,     . 
3wever,  in  the  first 
las  legally  ratifie''    - 
r  attorneys  to  fi 


ent  to  say  in  regard  to  this,  that.  \-. 
.     -.-.  contrary,  the  authority  of  an  attorne} 
r  and  plead  for  such  parties  as  he  claims  to  repr 
If  the  appellants  desired  to  raise  this  question 
to  impeach  the  genuineness  of  Mrs.  Ambler- 
•e  answer  and  cross-bill,  they 
1  for  the  proper  rule.    Not  ''a 

/  the   authority  of   Mrs.   Amblers  counsel   to   hie  sucii 
:id  cross-bill  as  they  thought  proper. 
e  other^  question  is  more  difficult,  but  we  have  arrived  at  the 
ision,  that  the  ratification  of  Mrs.  Ambler  makes  the  arrange- 
between  her  son  and  Wadsworth  good  from  the  beginning. 


''■\\e.  tiled  aij 
ne  this,  the_. 
counsel   to   file 


■ars,  he  had  no  av:' 

between 

i;er  person,  but  . 

i.  act  of 

it  may,  like  any  other  aci 

>  iui,  be  rati- 

le  principal,  and  the   r. 

u:>  '.he  v;er- 

of  the  act.    It  is  u^                      . ,  that  a 

back  S0  as  to  cut  off  :                '  •■■^^'S  right;- 

mbtless  true  as  a  ge               •■,  but  if  the 

'     1  merely  for  t'                      i  of  a  clc;;' ' 

m  would  be                          h  reooj- 

interferes  \. 

luity.     We   . 

The   debt  of  Wiiiiams   accrue. 

'^i^^rtook  to  create  a  .-  irinrrci.",, 

...■. 

The  credit  up 

ing 

;trol  which  the   ■ 

of 

So  far  as  she 

ilie 

debt  had  n 

-    a^ 

worth  was  ; 

.se- 

acts  of  Mrs.  Ambler's  iv 

partner- 

'lach  acts  were  author iz    . 

or  not. 

vith  the  complainants,  t^ 

■e  firm? 

'  -"nsequence  of  mot^'- 

..  .X  Wads- 

of  exchang-e  on 

e  same  day 

lieriff,  and  the  i 

;>em 

'67^ 

llAilFlCAIU,'- 

and  W'adsworth,  by 
on  a  salary  of  ten  .' 
beyond  his  wage 
When,  however 
found  to  be  lar. 

nes 

ager  of  his 
pendent  <>y 

^VI.k•^ 

r 

sou:''  ' 

iuf; 

Tt-: 

after  a- 
propert 
and  thv. 


(lie    sheriff    ans 

ncfhhip.  and  she  al- 
and   T)raying    that 

r.ayii'cni    ■  i"   partnei 
below  so  df  ""      ■ 
should  be  1' 


bnsincs 

. -St  therein 

^rcy  Ambler. 

i.T    profits  were 

Ambler  allowed 


\vas  lurniSiK 

is  acting  as  r 

some  extent,  de 

.  >  .Mmt.  small  mean 

r  her  benefit,  and  which  b- 

' "      arrangement  wit ' 

i  she  knew  notb 

!.  led  to  this  sui; 

merely  acting  ut: 

::;j:i    :u;iiin; :- ^    ;t    against    Strons. 

sworth,  on  his  old  claim  against  then, 
ed  a  judgment  against  Strong  Wadb- 
Mi  served)  for  over  nine  thousand  dol- 
i  ;  •'    :         '        '      vied  upon  the  fur 
•  orth&Co.     Tl- 
•iousand  dollars,  was  pai' 
,1     I'iff  in  the  execution.     Irr 
"ents    were   confessed   by   Strong 
c.  foil.  vv<:-   One  in  favor  of  Rutter 
Uirs,  one  in  favor  r^ 
r.i  .ira   -•    ly-six  /jSp^  dollars,  an 
for  sixtecti  hundred  dollars,  aiv 
writ  of   replevin   tb 
.n  behalf  of  themselvr 
s'orih  ik.  Co.  praying  that  tb- 
be    the    partnership    propert; 
Ambler,  jmd,  as  such,  marshalcv 
>  the  e-  '-•    ' -^   of  the  individun 
iants  V  s   Mercy  AmbU; 

•1.     Williams  am 
nership    betwec 
>  >a!.ii   v<f  their  answer  h.' 
'.  ndmiftinn"  the  alleged  \ 

the  partjiershi] 
.......        .>,-.'-t    be    applied    ii 

the  final  hearing  the  couv 
:;  the  record  to  tliis  court.  1  = 
VVadsworth  and  Mrs.  Amble 


EFFECT.  373 

are  admitted  to  be  insolvent,  and  that  the  former  had  drawn  all  the 
profits  due  to  him  from  the  business. 

It  is  apparent,  from  this  statement  of  the  facts,  that  the  decision 
of  this  case  depends  upon  the  effect  to  be  given  to  the  answer  and 
cross-bill  of  Mrs.  Ambler,  by  which  she  ratifies  the  act  of  her  agent 
in  making  the  partnership  arrangement  with  Wadsworth.  It  is 
denied,  however,  in  the  first  instance,  by  the  counsel  of  appellant, 
that  she  has  legally  ratified,  there  being  no  proof  of  authority  from 
her  to  her  attorneys  to  file  the  answer  or  cross-bill,  and  no  proof 
of  her  signature  to  these  pleadings  which  are  signed  by  her  in  her 
own  proper  name. 

It  is  sufficient  to  say  in  regard  to  this,  that,  in  the  absence  of 
proof  to  the  contrary,  the  authority  of  an  attorney  of  this  court  to 
appear  and  plead  for  such  parties  as  he  claims  to  represent  is  pre- 
sumed. If  the  appellants  desired  to  raise  this  question  in  the  court 
below,  or  to  impeach  the  genuineness  of  Mrs.  Ambler's  own  signa- 
ture to  the  answer  and  cross-bill,  they  should  have  filed  an  affidavit 
and  asked  for  the  proper  rule.  Not  having  done  this,  they  cannot 
now  deny  the  authority  of  Mrs.  Ambler's  counsel  to  file  such 
answer  and  cross-bill  as  they  thought  proper. 

The  other  question  is  more  difficult,  but  we  have  arrived  at  the 
conclusion,  that  the  ratification  of  Mrs.  Ambler  makes  the  arrange- 
ment between  her  son  and  Wadsworth  good  from  the  beginning. 
So  far  as  appears,  he  had  no  authority  to  create  a  partnership  between 
her  and  another  person,  but  if  an  agent  assumes  to  do  an  act  of 
this  sort,  it  may,  like  any  other  act  of  an  agent  not  unlawful,  be  rati- 
fied by  the  principal,  and  the  ratification  relates  back  to  the  per- 
formance of  the  act.  It  is  urged,  however,  that  a  ratification  can- 
not relate  back  so  as  to  cut  off  the  intervening  rights  of  third  persons. 
That  is  doubtless  true  as  a  general  rule,  but  if  the  doctrine  of  rela- 
tion is  applied  merely  for  the  protection  of  a  clearly  superior  equity, 
such  application  would  be  consistent  with  recognized  legal  principles, 
even  though  it  interferes  with  the  claims  of  third  person  resting  upon 
an  inferior  equity.  We  consider  the  case  before  us  one  of  that 
character.  The  debt  of  Williams  accrued  long  before  John  C. 
Ambler  undertook  to  create  a  partnership  between  his  mother  and 
Wadsworth.  The  credit  upon  which  it  accrued  did  not  spring 
from  any  control  which  the  latter  acquired  over  the  property  of 
Mrs.  Ambler.  So  far  as  she  and  her  property  are  concerned,  the 
contracting  of  the  debt  had  no  connection  with  them.  Williams,  as 
creditors  of  Wadsworth  was  placed  in  no  worse  position  in  conse- 
quence of  the  acts  of  Mrs.  Ambler's  agent  in  forming  the  partner- 
ship, whether  such  acts  were  authorized  by  the  principal  or  not. 
But  how  was  it  with  the  complainants,  the  creditors  of  the  firm? 
Their  debts  arose  in  consequence  of  money  paid  by  them  to  S.  Wads- 
worth &  Co.,  for  bills  of  exchange  on  New  York,  on  the  same  day 
with  the  levy  by  the  sheriff,  and  the  identical  money  paid  by  them 


374 


RATIFICATION. 


was  part  of  that  seized  under  the  levy.  Mrs.  Ambler,  by  giving 
to  Wadsworth  the  control  of  her  small  capital,  through  her  agent, 
had  enabled  him  to  start  the  business  of  S.  Wadsworth  &  Co.,  and 
procure  credit,  by  selling  drafts  to  these  complainants  and  the 
other  creditors.  Although  Mrs.  Ambler  was  under  no  legal  obliga- 
tion to  ratify  these  proceedings  of  her  agent  when  they  came  to  her 
knowledge,  yet  she  was  under  a  certain  moral  obligation  to  protect, 
to  the  extent  of  her  power,  those  innocent  creditors  who  had  become 
such,  through  means  furnished  by  her,  and  through  the  acts  of  her 
general  agent.  She  recognizes  this  duty,  and  by  ratifying  the  act  of 
her  agent,  has  made  herself  personally  liable,  as  a  partner  in  the  firm 
of  S. "Wadsworth  &  Co.,  for  the  debts  of  the  firm,  and  is  now  liable 
to  be  sued  therefor.  Wright  v.  Boynton  &  Hayward,  37  N.  H.  9. 
These  are  debts  which  would  have  had  no  existence,  but  for  the  acts 
of  her  agent  in  dealing  with  her  property,  and  connecting  her  in  a 
partnership  arrangement  with  Wadsworth.  If  she  is  now  willing 
to  ratify  this  arrangement,  and  assume  all  the  liabilities  of  the 
firm  of  S.  Wadsworth  &  Co.,  ab  initio,  as  she  does  by  ratifying,  is 
it  not  manifestly  just  that  the  other  incidents  of  partnership  should 
follow,  and  the  partnership  assets  be  first  applied  to  the  payment  of 
the  partnership  debts?  Is  it  not  plain  that  the  equity  of  the  credit- 
ors of  S.  Wadsworth  ,&  Co.,  as  against  the  assets  of  the  business  done 
under  that  name,  and  as  against  the  capital  furnished  by  Mrs. 
Ambler,  is  superior  to  that  of  individual  creditors  of  Wadsworth, 
whose  debts  were  contracted  long  before  this  business  was  com- 
menced ?  If  Mrs.  Ambler  is  willing  to  ratify  the  acts  of  her  agent, 
are  not  their  equities,  as  against  Williams,  precisely  what  they 
would  have  been  if  he  had  full  authority  to  do  what  he  did?  We 
think  so,  and  it  follows  that  the  lien  of  Williams'  execution  must 
be  treated,  in  a  court  of  equity,  as  only  attaching  to  whatever  inter- 
est Wadsworth  had  in  the  assets  of  the  firm,  after  the  payment  of 
the  firm  debts. 

The  decree  of  the  superior  court  must  be  affirmed. 

Decree  affirmed.^ 

^  "Now,  although  the  general  rule  is,  that  the  ratification  relates  back  to  the 
time  of  the  inception  of  the  transaction,  and  has  a  complete  retroactive  effi- 
cacy, or  as  the  maxim  is — Omnis  ratihabitio  rctrotrahihir — yet,  this  doctrine 
is  not  imiversally  applicable.  Thus,  if  third  persons  acquire  rights,  after  the 
act  is  done  and  before  it  has  received  the  sanction  of  the  principal,  the  ratifi- 
cation cannot  operate  retrospectively,  so  as  to  overreach  and  defeat  those 
rights."    Baldwin,  J.,  in  Taylor  v.  Robinson,  14  Cal.  396,  400. 

See  Kempner  v.  Rosenthal,  81  Tex.  12. 


o/^ 


»rapetent 
le  defendant,  to  cancel  wliat  tney  had  ch 
lyment  was  therefore  not  "■■r.-,-.i 
C.  E. —  [After  staciiit:  v  r  the  case,  proce' 


jelore  tii  .   He-  did  not,  however,  com- 

to  the  J,.  .1   ...       ,,.     .^   ,,.d  no  au'-^'-'i''"  •   ''^   the  con- 
professed  to  act  for  the  defendant,  an^  believed 

so  acting,  and  V  '    '  ^     -    .i.- 

But  when  the 
lOUt  thr 

And  - 
:ea  of  payment  ado; 

..^f-.T-^      -.r-r'rn     that     S' 

been  ur 
■'.\\-  '■:■  <;iear,  ■"  ■ 
hehalf  of  -. 


nt  on  the  r< 


the  111*'. 
;iad  au<. 
in  fac' 
ill  the  moiit ; 
insisted  on  kee 

'■■  i^ed  the  aci  ^outnaii 


,  by  giving 

her  agent, 

&:  Co.,  and 

md   the 

.  obliga- 

c  to  her 

protect, 

:    •  had  becxDme 

acts  of  her 
\g  the  act  of 
mer  in  the  firm 
nd  is  now  liable 
id,  37  N.  H.  9. 
■  ,  but  for  the  acts 
rry,  and  connecting  her  in  a 
ii'       ir  c.hn  is  now  willing 
iabilities  of  the 
by  ratifying,  is 
tnership'  should 
payment  of 
•t  the  credit- 
ui  tiie  business  done 
;    furnished   by   Mrs. 
creditors  of  Wadsworth, 
■  ic  this  business  was  com- 
■  ratify  the  acts  of  her  agent, 
ns,   precisely   what   they 
do  wliat  he  did?    We 
on  must 
er  inter- 
est r'fter  the  pajmient  of 
the  ii*ii. 
The  d< 
I")ecree  an 


and  defeat  those 


EFFECT.  375 

WALTER  V.  JAMES. 
187 1.     Court  of  Exchequer.     L.  R.  6  Ex.  124. 

The  defendant  being  indebted  to  the  plaintiff,  S.,  who  had  acted 
as  his  attorney  in  the  matter  of  the  plaintiff's  claim  (the  amount  of 
which  was  disputed)  but  whose  authority  has  been  countermanded, 
paid  to  the  plaintiff  60/  in  discharge  of  the  disputed  claim.  The 
plaintiff  afterwards,  at  the  request  of  S.,  and  before  any  ratification 
by  the  defendant,  repaid  to  S.  the  60/,  and  sued  the  defendant  for  the 
debt.  The  defendant  pleaded  as  to  60/  payment,  and  relied  upon  the 
payment  made  by  S. : 

Held,  that  it  was  competent  to  the  plaintiff  and  S.,  before  ratifica- 
tion by  the  defendant,  to  cancel  what  they  had  done,  and  that  the 
plea  of  payment  was  therefore  not  proved. 

Kelly,  C.  B. —  [After  stating  the  facts  of  the  case,  proceeded: — ] 
Southall,  therefore,  in  paying  the  debt,  appeared  to  act  as  the  defend- 
ant's agent ;  but  it  turned  out  afterwards  that  although  he  had  orig- 
inally been  authorized  by  the  defendant  to  come  to  an  arrangement 
with  the  plaintiff,  and  to  make  this  payment,  that  authority  had  been 
revoked  before  the  payment  was  made.  He  did  not,  however,  com- 
municate to  the  plaintiff  that  he  had  no  authority;  on  the  con- 
trary, he  professed  to  act  for  the  defendant,  and  the  plaintiff  believed 
him  to  be  so  acting,  and  received  the  sum  paid  in  full  satisfaction  of 
his  debt.  But  when  the  plaintiff  found  that  the  money  had  been 
paid  without  the  defendant's  authority,  he  returned  the  money  to 
Southall.  And  now  the  question  is,  whether  the  defendant  can 
by  his  plea  of  payment  adopt  and  ratify  the  act  of  Southall,  al- 
though before  action  that  act  had,  by  arrangement  between  the 
plaintiff  and  Southall,  been  undone. 

Now  the  law  is  clear,  that  where  one  makes  a  payment  in  the 
name  and  on  behalf  of  another  without  authority,  it  is  competent 
for  the  debtor  to  ratify  the  payment ;  and  there  seems  to  be  no 
doubt  on  the  authorities  that  he  can  ratify  after  action  by  placing 
the  plea  of  payment  on  the  record. 

Prima  facie,  therefore  we  have  here  a  ratification  of  the  payment 
by  the  defendant's  plea ;  but  whether  the  payment  was  then  capable 
of  ratification  depends  on  whether  previously  it  was  competent  to 
the  plaintiff  and  Southall,  apart  from  the  defendant,  to  cancel  what 
had  taken  place  between  them.  I  am  of  opinion  that  it  was  compe- 
tent to  them  to  undo  what  they  had  done.  The  evidence  shows 
that  the  plaintiff  received  the  money  in  satisfaction  under  the  mis- 
taken idea  that  Southall  had  authority  from  the  defendant  to  pay 
him.  This  was  a  mistake  in  fact,  on  discovering  which  he  was.  I 
think,  entitled  to  return  the  money,  and  apply  to  his  debtor  for 
payment.  If  he  had  insisted  on  keeping  it,  the  defendant  might 
at  any  moment  have  repudiated  the  act  of  Southall,  and  Southall 


376  RATIFICATION. 

would  then  have  been  able  to  recover  it  from  the  plaintiff  as 
money  received  for  Southall's  use.  I  am,  therefore,  of  opinion  that 
the  plaintiff,  who  originally  accepted  this  money  under  an  entire 
misapprehension,  was  justified  in  returning  it,  the  position  of  the 
parties  not  having  been  in  the  meantime  in  any  way  altered,  and 
that  the  defendant's  plea  of  payment  fails.  The  rule  must  ac- 
cordingly be  made  absolute. 

Martin^  B. — I  am  of  the  same  opinion.  The  rule  which  I  con- 
ceive to  be  the  correct  one  may  be  stated  as  follows :  When  a  pay- 
ment is  not  made  by  way  of  gift  for  the  benefit  of  the  debtor  but 
by  an  agent  who  intended  that  he  should  be  reimbursed  by  the 
debtor  but  who  had  not  the  debtor's  authority  to  pay,  it  is  compe- 
tent for  the  creditor  and  the  person  paying  to  rescind  the  transac- 
tion at  any  time  before  the  debtor  has  affirmed  the  payment,  and 
repay  the  money,  and  thereupon  the  payment  is  at  an  end,  and  the 
debtor  again  responsible.  This  being,  in  my  judgment,  the  true  rule, 
the  plaintiff  in  this  case  was  entitled  to  recover. 

KellYj  C.  B. — My  brother  Cleasby  concurs  in  the  judgment  of 
the  court. 

Rule  absolute.^ 


DIXON,  C.  J.,  in  dodge  v.  HOPKINS. 

1861.     Supreme  Court  of  Wisconsin.     14  Wis.  630. 

-<  j;:  :|:  ^^J^T ^  ^j-g  j-jg^(.  ^q  asccrtaiu  the  eft'ect  of  this  want  of  author- 
ity upon  the  rights  of  the  defendant.  It  is  very  clear,  m  the  present 
condition  of  the  case,  that  the  plaintiff  was  not  bound  by  the  con- 
tract and  that  he  was  at  liberty  to  repudiate  it  at  any  time  before 
it  had  actually  received  his  sanction.  Was  the  defendant  bound? 
And  if  he  was  not,  could  the  plaintiff,  by  his  sole  act  of  ratification, 
make  the  contract  obligatory  upon  him?  We  answer  both  these 
questions  in  the  negative.  The  covenants  were  mutual — those  of 
the  defendant  for  the  payment  of  the  money  being  in  consideration 
of  that  of  the  plaintiff  for  the  conveyance  of  the  lands.  The  in- 
tention of  the  parties  was  that  they  should  be  mutually  bound — that 
each  should  execute  the  instrument  so  that  the  other  could  set  it  up 
as  a  binding  contract  against  him,  at  law  as  well  as  in  equity,  from 
the  moment  of  its  execution.  In  such  cases  it  is  well  settled,  both 
on  principle  and  authority,  that  if  either  party  neglects  or  refuses 

^  "It  is  a  familiar  maxim  that  ratification  has  a  retroactive  efficacy,  and  re- 
lates back  to  the  inception  of  the  transaction,  and,  when  deliberately  made 
with  a  knowledge  of  the  circumstances,  as  before  stated,  cannot  be  revokei 
or  recalled."   Maxey,  J.,  to  jury  in  Russ  v.  Telfener,  57  Fed.  973,  974. 

To  same  effect  see  Whitfield  v.  Riddle,  78  Ala.  99. 


where  i' 


reclusive  anfWcr  ■• 

of  tne  i 
iS,  the  \ 
He  says  :     '  j 
.       -    J  wait  and  specula 
:  up  the  contract  as  their  own  interests  might  ' 
ut  any  reference  to  prices,  and  "  !'-i^>->-  ^'"^  dek, 
■>rt.  if  this  was  not  the  deed  of  i  the  tim 

V     '  ■         "        •        ■  ■    Vi  (the 
.  act  of  I 
viced,     iiicre  is,  I  tiiial-:,  no  prii 
n  such  a  doctrine."    The  only  po 
in  that  case  differ  materially  from  those  here  presented,  is, 
...  .lO  part  of  the  purchase  money  was  advanced  to  the  agent.    But 
hat  circumstance  cannot  vary  the  application  of  the  principle.    The 
-^f  the  money  tc  "'  "nt  did  not  affect  the  validity  of 

act,  or  rnak-f  it  .ipon  the  plaintiflF.     He  was  at 

reject  i' 
a  with  \^ 
.  although  it  mv 

■'int  until  he  aci.;,,..,  ....     ._ 

es  to  give  the  contract  any  v^ 

-m    well  av;are  that  ther-    .'.a   .;u 

:     I  in  the  bo<')ks.  which,  i/  erally,  a 


me  of  the  ti 

s  as  if  it  ha'„ 

em.  594,  the  coi  :ca- 

"'"''"'''■'■"■  .  '  (i. 

igfh 


It  act  of  ra. 
avor  of  the 
:  basis  of  a 
fference  bet\ 


would    I  hen   hav      ■ 
monf'v  re 'reived  : 
The  who  o 

iV'-:-;^.l.: _oion.   vv 

:  ;■  ies  not  havi- 
ihat  the  defend 
cordingly  be  nici 

Martin,  T 
ceive  to  be  U 
ment  is  not 
by  an  at"'' 
debtor  I 
tent  for 
tion  at 


in  entiri 
a  of  the 

led,  and 


■  a  1  con 

',in  a  pay 

t  ihe  debtor  but 

imbursed  by  the 

pay,  it  is  compe- 

■  iind  the  transac- 

le  payment,  and 

an  end,  and  the 

-ft",  the  true  rule. 


jVids^Ticnt  of 


630. 


condition  ot 


M'.Ci  if  he  W'! 
■        '  '■'le  cov.u,. 
in  the 
<■:  :.  uc'ciidant  for 
of  that  of  the  ci 


contrae: 

■A  its  e>: 

on  principle  and  auti 


Jato:- 

or  r!,-cai5ed.''    Mvxey,  J  , 
'['•J  same  effect  see  \Vh 


effect  of  this  want  of  author- 

1 '  ^  very  clear,  in  the  present 

i-  not  bound  by  the  con- 

i  at  any  time  before 

:;e  defendant  bound? 

tiff,  by  his  sole  act  of  ratification, 

jii  him?     We  answer  both  these 

covenants  were  mutual — those  of 

'- '!■  money  being  in  consideration 

.  'ance  of  the  lands.     The  in- 

lally  bound — that 

-  conid  set  it  np 


lier  party  neglects  or  refuses 

;• ,  and  re- 
'  fi        'tely  made 
•  iiated.  cannot  be  revoked 
rier,  57  Fed  973,  974. 

)9. 


EFFECT.  377 

to  bind  himself,  the  instrument  is  void  for  want  of  mutuality,  and 
the  party  who  is  not  bound  cannot  avail  himself  of  it  as  obligatory 
upon  the  other.  Townsend  v.  Corning,  23  Wend.  435,  and  Same 
V.  Hubbard,  4  Hill  351,  and  cases  there  cited.  The  same  authori- 
ties also  show  that  where  the  instrument  is  thus  void  in  its  inception, 
no  subsequent  act  of  the  party  who  has  neglected  to  execute  it,  can 
render  it  obligatory  upon  the  party  who  did  execute,  without  his 
assent.  The  opinion  of  Judge  Bronson  in  the  first  named  case  is 
a  conclusive  answer  to  all  arguments  to  be  drawn  from  the  subse- 
quent ratification  of  the  party  who  was  not  originally  bound.  In 
that  case  as  in  this,  the  vendors  had  failed  to  bind  themselves  by 
the  agreement.  He  says :  "It  would  be  most  extraordinary  if  the 
vendors  could  wait  and  speculate  upon  the  market,  and  then  abandon 
or  set  up  the  contract  as  their  own  interests  might  dictate.  But 
without  any  reference  to  prices,  and  whether  the  delay  was  long 
or  short,  if  this  was  not  the  deed  of  the  vendee  at  the  time  it  was 
signed  by  himself  and  Baldwin  (the  agent),  it  is  impossible  that 
the  vendors,  by  any  subsequent  act  of  their  own  without  his  assent, 
could  make  it  his  deed.  There  is,  I  think,  no  principle  in  the  law 
which  will  sanction  such  a  doctrine."  The  only  point  in  which  the 
facts  in  that  case  differ  materially  from  those  here  presented,  is, 
that  no  part  of  the  purchase  money  was  advanced  to  the  agent.  But 
that  circumstance  cannot  vary  the  application  of  the  principle.  The 
payment  of  the  money  to  the  agent  did  not  affect  the  validity  of 
the  contract,  or  make  it  binding  upon  the  plaintiff.  He  was  at 
liberty  to  reject  the  money,  and  his  acceptance  of  it  was  an  act  of 
ratification  with  which  the  defendant  was  in  no  way  connected,  and 
which,  although  it  might  bind  him,  imposed  no  obligation  upon  the 
defendant  until  he  actually  assented  to  it.  It  required  the  assent  of 
both  parties  to  give  the  contract  any  vitality  of  force. 

I  am  well  aware  that  there  are  dicta  and  observations  to  be 
found  in  the  books,  which,  if  taken  literally,  would  overthrow  the 
doctrine  of  the  cases  to  which  I  have  referred.  It  is  said  in  Law- 
rence V.  Taylor,  5  Hill  113,  that  "such  adoptive  authority  relates 
back  to  the  time  of  the  transaction,  and  is  deemed  in  law  the  same 
to  all  purposes  as  if  it  had  been  given  before."  And  in  Newton  v. 
Bronson,  3  Kern.  594,  the  court  say :  "That  a  subsequent  ratifica- 
tion is  equally  effectual  as  an  original  authority,  is  well  settled." 
Such  expressions  are,  no  doubt,  of  frequent  occurrence,  and  although 
they  display  too  much  carelessness  in  the  use  of  language,  yet  if 
they  are  understood  as  applicable  only  to  the  cases  in  which  they 
occur,  they  may  be  considered  as  a  correct  statement  of  the  law. 
The  inaccuracy  consists  in  not  properly  distinguishing  between  those 
cases  where  the  subsequent  act  of  ratification  is  put  forth  as  the 
foundation  of  a  right  in  favor  of  the  party  who  has  ratified,  and 
those  where  it  is  made  the  basis  of  a  demand  against  him.  There 
is  a  broad  and  manifest  difference  between  a  case  in  which  a  party 


378  RATIFICATION. 

seeks  to  avail  himself,  by  subsequent  assent,  of  the  unauthorized 
act  of  his  own  agent,  in  order  to  enforce  a  claim  against  a  third 
person,  and  the  case  of  a  party  acquiring  an  inchoate  right  against 
a  principal,  by  an  unauthorized  act  of  his  agent,  to  which  validity 
is  afterwards  given  by  the  assent  or  recognition  of  the  principal. 
Paley  on  Agency,  192,  note.  The  principal  in  such  case  may,  by  his 
subsequent  assent,  bind  himself,  but  if  the  contract  be  executory,  he 
cannot  bind  the  other  party.  The  latter  may,  if  he  choose,  avail 
himself  of  such  assent  against  the  principal,  which,  if  he  does  the 
contract,  by  virtue  of  such  mutual  ratification,  becomes  mutually 
obligatory.  There  are  many  cases  where  the  acts  of  parties  though 
unavailable  for  their  own  benefit,  may  be  used  against  them.  It  is 
upon  this  obvious  distinction,  I  apprehend,  that  the  decisions  which 
I  have  cited  are  to  be  sustained.  Lawrence  v.  Taylor  and  Newton  v. 
Bronson,  were  both  actions  in  which  the  adverse  party  claimed 
rights  through  the  agency  of  individuals  whose  acts  had  been  sub- 
sequently ratified.  And  the  authorities  cited  in  support  of  the  propo- 
sition laid  down  in  the  last  case  (4  Wend.  219;  i  Pick.  372;  3 
Hill  552;  5  id.  137;  9  Cranch  153,  and  5  Wheat.  241)  will,  when 
examined,  be  found  to  have  been  cases  where  the  subsequent  as- 
sent was  employed  against  the  persons  who  had  given  it  and  taken 
the  benefit  of  the  contract.    *    *    ^■''^ 


SHEFFIELD  and  Others  v.  LADUE. 
1871.     Supreme  Court  of  Minnesota.     16  Minn.  388. 

Ripley,  C.  J. — The  defendant,  a  traveling  salesman  for  R.  I. 
Johnson  &  Co.,  and  having  in  his  possession  a  pair  of  horses,  the 
property  of  his  employers,  with  authority  from  them  to  sell  or  ex- 
change the  same,  exchanged  them  with  the  plaintiflfs  for  a  pair  of 
horses  belonging  to  the  plaintififs,  and  for  the  agreed  difference  in 
value  between  the  two,  executed  and  delivered  to  the  plaintiffs  the 
following  note : 

"Ninety  days  after  date  for  value  received,  we  promise  to  pay 
to  the  order  of  Sheffield  and  Leary,  two  hundred  dollars,  at  H. 
Wilson  &  Co's  bank,  with  interest  at  seven  per  cent. 

"Fairbault,  April  3d,  1868.  R.  I.  Johnson  &  Co., 

"Per  Jay  Ladue." 

From  the  bill  of  exceptions  in  the  case,  it  appears  that  at  the  trial 
there  was  evidence  tending  to  show  defendant  had  no  authority 

^  Followed  in  Atlee  v.  Bartholomew,  69  Wis.  43.  Compare  In  re  Portuguese 
Consol.  Copper  Mines,  Ltd.,  L.  R.  45  Ch.  D.  16. 


vm  can  exonerai  ■ 
xi:c  court  refused  so  ■■>    • 
The  court  charired  the  ^.ir 

in  the  ■ 

-t  if  th. 


eieucia 


'  plaintifts  contend  that  the 

fiM._   :v,.,.    ..,   vi,     -laintilfs 

for  w'' 

deceit,  or  on  i:hf 
ii  :.c  "..■.  liable  oi 


In  our  opinion,  however,  the 
'^    "ho,   without  authority,  excuicb  an 
•ther  whose  name  he  puts  to  it,  and 


saxa  a-utLuii.-,. 


.    ,:-.e- 
-itephens,   i 

ty  is  decidedly  that 


ai.    i  Paisons  Cent. 


68,  69; 


[..  &  E( 


iliams, 

5 

Gray  ~. 

■■'-     ■ 

L. 

tv 

■■  V. 

Yn 

/ork  c; 


'6^n' 


c  rnif  V  MIC'"  ; 


■;e  na:i: 


1  li  ■  ,-••.:  1 1 


horized 
a  third 
against 
'validity 

•  incipal. 
■  by  his 
lory,  he 

noose,  avail 
ii  he  does  the 

contract,  comes  mutually 

vvr.eic  '        ''  "  though 

Hirty  h>e  ,\     It  is 

.         '  s  which 

•  wton  V. 
party  claimed 
li^d  been  su1> 

f  the  propo- 

...  ^ly,    1    Pick.  372;  3 

Wheat.  241)  will,  when 

'         lent  as- 

i.d  taken 


T^;::  J.  ;88. 

RiPLEi  salesman  for  R.    ' 

pair  of  horses,  the 
thetri  to  c^]1  or  ex- 

witii   ti  '  • 

•.nd  for  _,  .   ii; 

■■  to  th<f  plaintitts  the 

promise  to  pay 
i   dollars,  at   " 

;  :;  •  ':  Co., 

Ladue." 
that  at  the  trial 

r!    no    ^iiit  non'i  V 


EFFECT.  379 

to  give  the  note  of  said  R.  I.  Johnson  &  Co.,  but  that  plaintiffs  sup- 
posed he  had. 

The  plaintiffs'  counsel  requested  the  court  to  charge  the  jury 
that  if  they  should  find  that  the  defendant  made  the  note  described 
in  the  complaint  without  having  been  previously  authorized  so  to 
do  by  R.  I.  Johnson  &  Co.,  no  subsequent  ratification  of  this  act  by 
said  firm  can  exonerate  him  from  liability  to  the  plaintiffs. 

The  court  refused  so  to  do,  and  plaintiff's  excepted. 

The  court  charged  the  jury  that  if  the  defendant  gave  the  note 
described  in  the  complaint,  without  being  in  any  way  authorized 
to  do  so,  yet  if  the  firm  of  R.  I.  Johnson  &  Co.,  afterward,  knowing 
all  the  facts,  ratified  this  act,  the  defendant  was  not  liable  to  this 
action,  to  which  plaintiff's  excepted. 

The  plaintiffs  contend  that  the  defendant  having  made  and  de- 
livered this  note  to  the  plaintiff's  without  authority,  incurred  an 
immediate  liability  to  them  for  whatever  injury  had  resulted  from 
his  wrongful  act,  either  as  on  an  implied  warranty  of  said  authority, 
or  as  for  a  deceit,  or  on  the  note  itself  as  maker. 

If  he  is  liable  on  the  note  it  has  been  held  that  subsequent  ratifica- 
tion would  not  excuse  him,  because  the  note  is  his  note  when  exe- 
cuted. Rossiter  v.  Rossiter,  8  Wend.  494 ;  Palmer  v.  Stephens,  i 
Denio  471. 

In  our  opinion,  however,  the  weight  of  authority  is  decidedly  that 
one  who,  without  authority,  executes  an  instrument  in  the  name 
of  another  whose  name  he  puts  to  it,  and  adds  his  name  only  as 
agent  for  that  other,  cannot  be  treated  as  a  party  to  that  instrument 
and  be  sued  upon  it,  unless  it  be  shown  that  he  was  the  real  princi- 
pal. I  Parsons'  Cont.,  Book  i.  Ch.  3,  p.  68,  69;  Parsons'  Mer.  Law, 
Ch.  10,  §  5,  p.  148;  Jenkins  v.  Hutchinson,  13  Ad.  &  El.  744;  66  E. 
C.  L.  751  ;  Lyon  v.  Williams,  5  Gray  557;  2  Smith  Lead.  Cas.  366, 
et  seq.;  Collen  v.  WVight,  40  Eng.  L.  &  Eq.  182;  Randell  v.  Tri- 
men,  2,7  Eng.  L.  &  Eq.  275  ;  Jeffers  v.  York,  4  Cush.  371  ;  Stetson 
V.  Patten.  2  Greenl.  358 ;  Abbey  v.  Chase,  6  Cush.  54 ;  Hopkins  v. 
Mehaffy,  11  Sergt.  &  R.  126;  Moore  v.  Wilson,  6  Foster  (N.  H.) 
332 ;  Duncan  v.  Niles,  32  111.  542 ;  McHenry  v.  Duffield,  7  Blackf.  41. 

The  plaintiffs  rely  upon  Dusenbury  v.  Ellis,  3  Johns.  Cas.  70,  and 
a  series  of  New  York  decisions,  as  Rossiter  v.  Rossiter,  above 
cited  and  Palmer  v.  Stephens,  i  Denio  471,  and  others  following 
that  case.  These  lay  down  the  law  as  they  have  stated  it,  and 
their  authority  has  been  followed  in  several  other  states ;  but  in 
White  V.  Madison,  26  N.  Y.  117,  Selden,  J.,  delivering  the  opinion 
of  the  court  of  appeals  says,  that  the  authority  of  the  New  York 
decisions  above  referred  to  had  been  somewhat  shaken  by  the  re- 
marks of  the  judges  who  delivered  opinions  in  Walker  v.  Bank  of 
the  State  of  New  York.  5  Seldon  582.  and  that  if  it  were  necessary 
in  the  case  before  him  to  decide  whether,  as  a  general  principle, 
one  entering  into  a  contract  in  the  name  of  another  without  author- 


380  RATIFICATION. 

ity,  is  to  be  himself  holden  as  a  party  to  the  contract,  he  should 
hesitate  to  affirm  such  a  principle.  From  this  language  it  may 
fairly  be  inferred  that  if  the  question  were  now  a  new  one  in  New 
York  it  would  probably  be  differently  decided. 

If  the  authorities  on  which  plaintiffs  rely  would  not  now  be 
followed  where  they  originated,  the  courts  of  a  state  in  which  the 
question  is  now  raised  for  the  first  time  can  hardly  be  expected  to 
be  guided  by  them  if  the  point  is  to  be  settled  on  the  weight  of 
authority.  Nor,  looking  at  the  question  in  the  light  of  reason,  and 
not  merely  on  authorities,  is  it  perceived  how  the  objection  stated 
by  Mr.  Justice  Selden  is  to  be  got  over ;  viz. :  That  by  such  a  rule, 
courts  would  often  make  contracts  for  parties  which  neither  party  in- 
tended or  would  have  consented  to  make.  Indeed,  we  think  the 
objection  might  be  more  strongly  put,  viz.:  That  by  such  a  rule 
the  courts  would  in  every  case  make  a  contract  for  the  parties  which 
neither  intended,  and  which  in  many  cases  neither  would  have 
consented  to  make. 

Why  should  the  court  do  this  ?  The  court  of  appeals,  in  Walker  v. 
Bank  of  State  of  New  York,  say,  with  perfect  justice,  that  the  doc- 
trine in  question  having  originated  in  the  decisions  referred  to, 
the  foundation  of  the  rule  must  be  taken  to  be  as  they  state  it. 
There  can  be  no  doubt  that  the  foundation  is  what  the  court  of 
appeals  say  it  is,  misrepresentation  and  imposition.  This  being  so, 
the  next  question  is,  how  is  a  contract  which  purports  to  be  the 
contract  of  A,  to  be  turned  into  the  contract  of  B  ? 

in  the  leading  case  of  Dusenbury  v.  Ellis,  this  problem  is  thus 
solved :  If  a  person,  under  pretense  of  authority  from  another  exe- 
cutes a  note  in  his  name,  he  is  bound ;  the  party  who  takes  it  under 
such  a  mistake  or  imposition,  ought  to  have  the  same  remedy  against 
the  attorney  who  imposes  on  him,  as  he  would  have  had  against  the 
pretended  principal  if  he  had  been  really  bound,  and  (to  give  him 
this  remedy  consistently  with  the  general  theory  of  contracts)  the 
nam.e  of  such  pretended  principal  will  be  rejected  as  surplusage. 
Dusenbury  v.  Ellis,  3  Johns.  Cases  70. 

That  is,  the  court  thus  makes  a  new  contract  for  the  parties, 
because  the  party  imposed  on  ought  to  have  the  same  remedy  as 
he  would  have  had  against  the  principal  if  there  had  been  any 
principal. 

But  why  ought  he  to  have  this  remedy,  to  give  him  which  a 
court  of  law  takes  on  itself  to  exercise  an  equitable  jurisdiction,  which 
a  court  of  chancery  would  disclaim?  Justice  does  not  require  it.  In 
an  action  for  damages,  the  party  imposed  on  can  recover  full  in- 
demnity for  all  resulting  injury,  and  exemplary  damages  besides, 
if  a  fraudulent  intent  appears — on  the  note,  the  principal  and  inter- 
est only. 

The  court  of  appeals  admits  that  it  must,  in  any  event,  be  con- 


I 


:ty.  Wl 
..•ic  the  fir 
may  be,  a  1' 

.1  our  o  ie- 

cr  was  ^:  •  ?. 

!  an  action 
.   fendant  for 
is'  Mer.  Law,  i.:. 
if  his  employers  i  . 
the  signature  becoi 


•    iOi"   'id. 

se,  in  c, 
.•rougnt  t>efore  ratificanon.   nor  m  any  case  : 
suited  to  plaintiffs  from  defen^-i'"':;  ^^t  before.  >...,...,....  ,. 
ch  the  effect  of  making  the  r.  ■  thus  relate  back,  would 

put  the  plaintiffs  in  a  worst  '"    "   ''■ '  '   '-.::ve 

vise  been  in,  in  consequence  e- 

it. 
bill  of  exceptions  in  this  case,  hon'ever.  not  only  does  not 
•t  to  set  out  either  the  evidence  or  *  full,  but  it  con- 

..   iiothing,  aside  from  the  instruct;  -    nvn  \>  >>-;.-?! 

can  ha  gathered  that  there  was  an 
lat  tliere  had  been  any  rcf-'-   -  ■  •     " 
to  be  drawn  from  the 


^c  the  ratification  avail,  not:, 
intift's,  and  that   ^     -^   ■'  ■■   '■ 
infer  that  a  Vc 

'.%  would  not,  01  coiUie,   :ir)se  v 
■~e. 


>n  be  drawn  as 


a  state  of 

of  such  ratihca: 


'  n 


; '   ,  is  to  be  himsei ' 
i-.-'sitate  to  affirm   - 

i.;':!iv  i)c  iutcrr;.'  . 
York  it  would  p. 
ii   the.   authoi 


party 


iL  should 


now  be 


tx:   guiutd 
authorit;*'. 
not  !vie  ■ 
by  Mr.  ; 
courts  V 


;at    of 

a,  and 

;ect.ion  stated 

i.      «_'   .    v_  i      , 

0}  such  a  rule, 

for  parr 

;  neither  party  in- 

to  maK 

ed,  we  think  the 

y  put. 

!:  by  such  a  rule 

ke  a  CO!: 

[larties  \v'     ' 

•'nanv   . 

vvould    h:     ' 

p:-:i!.ij>il. 

R'M   ■wiiv  our'. 


.  _    :  .  \Valker  v, 

ice,  that  the  doc- 

■  ta   ui    uit   .jt:>  !?ions  referred  to, 

1   be  taken  to  be  as  they  state  it. 

founda'       '      vhat  the  court  of 

n  and  h  .    :.     This  being  so, 

ontract  ^vilich  purports  to  be  the 

■i>i  contract  of  B? 

ur>'  V.  Ellis,  this  problem  is  thus 

,,^,-  ,-,:  -Miiwu-ity  from  another  exe- 

;y  who  takes  it  under 

same  remedy  against 

:  have  had  against  the 

nd,  and  (to  give  him 

■'■V  of  contracts)  the 

ii  wiii  i  ■   surplusage. 

new  contract  for  the  parties, 

'■    'lave  the  same  remedy  as 

1  if  there  had  been  any 

Iilm  which  a 


if  a  fraudulent  inter, 
est  only. 
The  court  of  app; 


.'osed  on  can  recover  full  m- 

•"xeniplary  damages  besides, 

c,  the  principal  and  inter- 

•st,  in  any  event,  be  con- 


EFFECT-  381 

sidered  as  a  concurrent  remedy  with  the  remedy  in  case,  and  on  the 
implied  warranty.     White  v.  Madison,  supra,  124. 

Why  violate  the  first  principles  of  the  law  of  contracts  to  give 
another,  it  may  be,  a  less  effective  remedy  ? 

This  note,  in  our  opinion,  cannot  be  treated  as  the  note  of  de- 
fendant; neither  was  it,  when  executed,  the  note  of  his  employers. 
Thereupon  an  action  in  the  nature  of  an  action  on  the  case  lay 
against  defendant  for  falsely  assuming  authority  to  act  as  agent. 
Parsons'  Mer.  Law,  148,  and  authorities  already  cited. 

But  if  his  employers  ratify  his  unauthorized  act  in  signing  their 
name,  the  signature  becomes  theirs,  and  the  note  becomes  theirs 
when  executed,  for  the  ratification  relates  back  to  the  execution. 
The  plaintiffs  have  got  what  they  bargained  for,  and  have  no  longer 
any  cause  of  action  for  damages  against  the  agent.  This  would  not 
hold  good,  of  course,  in  cases  in  which  such  suit  for  damages  had 
been  brought  before  ratification,  nor  in  any  case  in  which  injury 
had  resulted  to  plaintiffs  from  defendant's  act  before  ratification,  or 
in  which  the  effect  of  making  the  ratification  thus  relate  back,  would 
be  to  put  the  plaintiffs  in  a  worse  position  than  they  would  have 
otherwise  been  in,  in  consequence  of  such  unauthorized  act  of  de- 
fendant. 

The  bill  of  exceptions  in  this  case,  however,  not  only  does  not 
purport  to  set  out  either  the  evidence  or  the  charge  in  full,  but  it  con- 
tains nothing,  aside  from  the  instructions  themselves,  from  which 
it  can  be  gathered  that  there  was  any  evidence  tending  to  show 
that  there  had  been  any  ratification  at  all,  unless  such  an  inference 
is  to  be  drawn  from  the  statement  that  "there  was  no  evidence 
offered  or  received  on  the  trial,  except  such  as  related  to  the  author- 
ity of  the  defendant  to  make  the  note,  and  the  subsequent  ratifica- 
tion of  this  act  by  R.  L  Johnson  &  Co." 

The  plaintiff's  objections  to  the  instructions  given,  viz.:  That 
to  make  the  ratification  avail,  notice  of  it  should  have  been  given 
to  plaintiffs,  and  that  from  the  language  of  the  instruction  they 
might  infer  that  a  ratification  after  suit  commenced  would  be  a 
defense,  would  not,  of  course,  arise  in  the  absence  of  any  such 
evidence. 

If  it  should  be  thought  that  it  is  fairly  to  be  inferred  from  said 
statement,  that  there  was  evidence  tending  to  prove  a  ratification, 
no  inference  can  be  drawn  as  to  when  such  ratification  took  place. 
The  validity  of  a  ratification  does  not,  in  general,  depend  on  its 
being  communicated.  Bayley  v.  Bryant,  24  Pick.  198.  Therefore, 
before  the  question  of  notice  could  become  material,  it  would  be 
necessary  to  show  a  state  of  facts  imposing  a  duty  on  defendant 
to  notify  plaintiffs  of  such  ratification,  and  damage  resulting  from 
his  neglect  so  to  do. 

If,  for  example,  the  ratification  was  before  the  demand  made  by 
plaintiffs  on  Johnson  &  Co.,  defendant  cannot  be  held  responsible 


382  RATIFICATION. 

for  any  error  prejudicial  to  plaintiffs,  into  which  they  might  be  led 
by  the  statement  of  Johnson  &  Co.  in  refusing  to  pay,  that  defendant 
"had  no  authority  to  make  or  give  said  note,"  until  it  is  shown  that 
he  was  cognizant  thereof,  and  neglected  to  notify  plaintiffs  of  the 
true  state  of  the  case ;  for  the  defendant  could  not  be  taken  to 
anticipate  that  Johnson  &  Co.  would  meet  plaintiff's  demand  with 
a  refusal  to  pay,  and  with  a  statement,  which,  though  literally  true, 
was  false  in  spirit,  suppressing,  as  it  did,  the  truth,  and  suggesting 
a  falsehood,  viz.,  that  they  were  not  then  liable.  Plaintiffs,  if  de- 
ceived thereby,  might  be  led  ignorantly  to  sue  defendant ;  but 
Johnson  &  Co.  being  liable  on  the  note,  plaintiffs  would  have  no 
cause  of  action  against  defendant;  and  as  to  the  cause  of  such  suit, 
it  would  not  have  been  commenced,  if  Johnson  &  Co.  had  paid 
their  note,  or  not  paying,  had  not  given  plaintiff's  the  false  im- 
pression above  mentioned.  Johnson  &  Co.,  not  defendant,  are  re- 
sponsible for  Johnson  &  Co's.  falsehoods. 

If,  indeed,  the  ratification  had  not  taken  place  when  the  note 
was  present  for  payment,  the  defendant  might  be  answerable  for 
the  costs  of  this  suit,  but  in  the  absence  of  any  evidence  as  to  the 
time  of  ratification,  this  point  does  not  arise. 

Plaintiff  must  show  error  affirmatively.  The  instruction  lays 
down  a  correct  general  rule.  If  the  facts  in  this  case  were  such 
that  applied  to  them  without  qualification  it  would  mislead  the  jury, 
it  is  for  plaintiffs  to  show  the  existence  of  those  facts. 

It  appears  from  the  bill  of  exceptions  that  depositions  of  members 
of  the  firm  of  R.  I.  Johnson  &  Co.  were  read  in  evidence  by  de- 
fendant, and  that  certain  interrogatories  were  objected  to,  either  as 
leading,  or  calling  for  incompetent  or  irrelevant  testimony,  the  ob- 
jections overruled,  and  the  answers  received,  to  which  plaintiffs 
excepted. 

But  the  answers  are  not  set  out,  and,  therefore,  we  need  not  con- 
sider plaintiff's'  objections  to  the  interrogatories. 

The  answers  may  have  been  favorable  to  plaintiffs,  or  if  irrevelant, 
it  may  be  that  it  would  have  appeared  upon  the  whole  evidence, 
that  they  could  not  have  materially  injured  the  plaintiffs,  and  that 
the  verdict  was  in  all  respects  altogether  according  to  justice. 

Judgment  affirmed.^ 

^Accord:  Haight  v.  Sahler,  30  Barb.  (N.  Y.)  218;  Lingenfelder  v.  Leschen^ 

134  Mo.  55.      _ 

After  ratifying  an  unauthorized  act  the  principal  cannot  maintain  an  action 
against  the  agent  based  upon  the  violation  of  authority.  Halloway  v.  Arkan- 
sas Milling  Co.,  77  Kan.  76. 


LIABILITY    t 

Section  1. — Contracts. 

(  a  1      .VUTHORIZED  CONTI< 

OGDEN  V.  RAYMOND. 
•    18=3.     Supreme  Court. of  Errors  of  Connecticut. 


This  was  an  action  of  assumpsit.    The  declaration  contained  two 
■"ts,  one  of  which  was  g-eneral.     The  other  alleged,  that,  on  or 
.  the  first  day  of  April,  1850,  the  defendant  was  indebted  to 
:aintifi!;,  in  the  sum  of  fifty  dollars  for  labor  and  services  be- 
lat  time  by  the  plaintiff  done  and  rendered,  in  teaching  school 
certain  district  in  Pound  Ridge,  coiuity  of  Westchester  r. 
of  New  York,  at  the  special  instance  and  request  ')f  \hc 
nt.    The  cause  was  tried  at  Fairfield,  before  the  c 
St  term,  1852. 

;  the  trial  to  the  jury,  the  plaintiff  introduced 
d,  in  evidence,  the  statutt 
>>  common  schools,  and  * 
the  character  in  whi. 
^  the  plaintiff.    To  t}  : 
■jected,  on  the  ground  ti; 
le  to  prove,  either  count 
d  an  employment,  by  t' 
•.  they  were  liable  t    ' 
oidd  be  maintained 

';at  the  defendant   v  to 

^T.-onally,  for  sct--'  ;ijat 

-It  was  liabi  a  trus- 

..-.ial  character. 

The  plaintiff  claimed,  that  the  evidence 

hat  the  defendant  contracted  with  him,  ii> 

id  on  his  own  responsibility ;  and,  that  ^ 

iiough,  in  so  omtracting  with  him,  hr    ■  .uid  did 

38-; 


•r  prcju 
nient  of 
■  ivdu  nu  author:  I 
he  was  cogniza: 
true  state  of  f; 
anticipate  tb-t    ■ 
a  refusal  to 
was  false  ii; 
a  falsehooc. 
ceived   ther- 
Johnson  &• 
cause  (' 
it    wor' 

th.' 
pr.. 


•  Kui)  that 
iifs  of  the 
be  taken  to 
^  demand  with 
Uterally  tru' 
IS  u  (•1.,  ,  and  suggesting 

not  th»'  Plaintiffs,  if  dr 

-   defendant;   bi- 
iS  would  have  Vj 
I ;  and  as  to  tlic  cause  of  such  sui* 
nc'-'l,   if  Johnson  &  Co,  had  paic 
on  plaintiffs  the  false  im- 


,  falsehi 

had  .noc  i 
;e  defendan. 


defendant,  arr 

;o   when  the  no 
.>c.  answerable  f( 


je. 


the  absence  oi  any  evidence  as  to  th. 
<i  does  not  arise. 

,    afnrmatively.     The   instruction   la} 

If  the  facts  in  this  case  were  sue- 

lification  it  would  mislead  the  jur 

-  xistence  of  those  facts. 

<:jjtrons  that  de}X)sitians  of  membe- 

Co.  were  read  in  evidence  by  d< 

;;atories  were  objected  to,  either  r 

r-nt  or  irrelevant  testimony,  the  oi 

v.'.M-s   ri\-eh'p(l.   in   which   plaintil' 


jThe  aiis': 
it  may  be 
that  they  c^ 
the  verdict 

judginen 


Kciciuic,  vve  need  not  cod 

1  lories. 

lie  to  plaintiffs,  or  if  irrevelan 

ued  upon  the  whole  evidence 

iliy  injured  the  plaintiffs,  and  th; 

ocrether  according  to  ir?tice. 


Lingenf  elder  v.  Leschen, 

inijiupal  cannot  maintain  an  acti( 
of  authority.     Hallowav  v.  Arkii  . 


^1 


CHAPTER  IX. 

LIABILITY   OF   AGENT   TO    THIRD    PARTY. 

Section  1. — Contracts. 


(a)      AUTHORIZED   CONTRACTS   FOR  DISCLOSED   PRINCIPAL. 

OGDEN  V.  RAYMOND. 

1853.     Supreme  Court  of  Errors  of  Connecticut. 
22  Conn.  379. 

This  was  an  action  of  assumpsit.  The  declaration  contained  two 
counts,  one  of  which  was  general.  The  other  alleged,  that,  on  or 
about  the  first  day  of  April,  1850,  the  defendant  was  indebted  to 
the  plaintiff,  in  the  sum  of  fifty  dollars  for  labor  and  services  be- 
fore that  time  by  the  plaintiff  done  and  rendered,  in  teaching  school 
in  a  certain  district  in  Pound  Ridge,  county  of  Westchester  and 
State  of  New  York,  at  the  special  instance  and  request  of  the  de- 
fendant. The  cause  was  tried  at  Fairfield,  before  the  county  court, 
August  term,  1852. 

On  the  trial  to  the  jury,  the  plaintiff  introduced  witnesses,  and 
offered,  in  evidence,  the  statute  laws  of  the  state  of  New  York,  rela- 
tive to  common  schools,  and  the  judicial  decisions  of  said  state,  to 
prove  the  character  in  which  the  defendant  contracted  for  the  serv- 
ices of  the  plaintiff.  To  the  admission  of  this  evidence,  the  defend- 
ant objected,  on  the  ground  that  it  did  not  support  and  was  not  ad- 
missible to  prove,  either  count  in  the  declaration;  that  the  evidence 
showed  an  employment,  by  the  trustees  of  a  school  district,  for 
which  they  were  liable  to  be  sued,  as  a  corporation,  and  the  ac- 
tion could  be  maintained  against  them,  only  in  their  corporate  ca- 
pacity; that  the  defendant  was  a  public  agent,  and  not  liable  to 
be  sued  personally,  for  services  rendered  to  the  district;  and  that 
if  the  defendant  was  liable  at  all,  he  could  only  be  sued  as  a  trus- 
tee, in  his  official  character. 

The  plaintiff  claimed,  that  the  evidence  was  admissible,  to  show 
that  the  defendant  contracted  with  him,  in  his  individual  capacity, 
and  on  his  own  responsibility ;  and,  that  he  was  personally  liable, 
though,  in  so  contracting  with  him,  he  acted  as  a  trustee,  and  did 

383 


384  LIABILITY    TO    THIRD    PARTY. 

not  SO  act  as  by  law  to  give  the  plaintiff  any  remedy  for  his  wages, 
against  the  other  trustees,  nor  against  any  other  person  or  persons. 
The  defendant  further  claimed,  that  he  made  the  contract  with  the 
plaintiff,  as  the  trustee  of  such  school  district,  and  that  in  such 
capacity,  and  in  making  such  contract,  he  was,  by  the  laws  and  de- 
cisions of  said  state,  a  public  agent,  and  could  not  be  holden  person- 
ally liable,  unless,  in  making  such  contract,  he  was  guilty  of  fraud 
or  misrepresentation,  or  expressly  contracted  on  his  own  personal 
responsibility;  and  asked  the  court  to  instruct  the  jury,  that,  if  they 
should  find  that  he  was,  by  the  laws  of  New  York,  such  public 
agent,  and  made  the  contract  in  his  official  capacity,  as  trustee,  and 
without  fraud,  misrepresentation,  or  express  promise  to  be  bound, 
or  an  intention  to  be  bound,  he  was  not  personally  liable,  nor  li- 
able in  this  action. 

The  plaintiff  denied  that  the  defendant,  as  such  trustee,  and 
in  making  such  contract,  was  a  public  agent,  and  claimed,  that, 
unless  the  defendant  so  acted,  as  to  give  a  remedy  somewhere  else, 
he  was  personally  responsible,  and  liable  in  this  action,  and  prayed 
the  court  so  to  instruct  the  jury. 

The  court  charged  the  jury,  in  conformity  with  the  claim  of  the 
plaintiff',  that  the  plaintiff  must  have  a  claim  somewhere — that  a  pub- 
lic agent  is  one  who  acts  for  the  government,  and  not  an  individual 
or  a  private  corporation,  and  that,  in  this  case,  the  defendant  could 
not  be  considered  a  public  agent,  in  the  strict  sense  of  the  law — and, 
if  he  had  not  so  made  the  contract  as  the  law  requires,  and  so  as 
that  there  could  be  a  remedy  over,  he  was  personally  liable. 

The  plaintiff  having  obtained  a  verdict,  the  defendant  filed  a  bill 
of  exceptions,  and  by  motion  in  error,  brought  the  case  before  the 
superior  court,  where  it  was  reserved  for  the  advice  of  this  court. 

Ellsworth^  J. — The  first  question  is  the  admissibility  of  evi- 
dence to  prove  the  character  in  which  the  defendant  contracted  for 
the  services  of  the  plaintiff — whether  individually  or  as  a  public 
officer.  On  this  point  we  think  the  ruling  of  the  court  is  not  sub- 
ject to  objection.  The  evidence  conduced  to  establish  the  point  for 
which  it  was  offered,  and  that  was  sufficient  to  make  it  admissible. 

In  the  next  place,  the  defendant  claimed  that  he  made  the  con- 
tract as  a  public  agent,  and  therefore  was  not  personally  liable,  un- 
less, indeed,  in  making  the  contract  he  had  been  guilty  of  fraud  or 
misrepresentation,  or  had  superadded  his  personal  engagement.  The 
plaintiff,  on  the  other  hand,  claimed  that  the  defendant  did  not  con- 
tract as  a  public  agent,  and  furthermore,  at  all  events  must  be  liable 
unless  he  contracted  in  such  a  manner  "as  to  give  the  plaintiff  a 
remedy  somewhere  else."  The  court  ruled  in  conformity  to  the 
claim  of  the  plaintiff ;  and  herein,  we  think,  entertained  an  er- 
roneous view  of  the  law.  The  court  held  that,  in  point  of  law,  the 
defendant  was  not  a  public  agent,  and  could  not  be  classed  with 
public  agents,  who  are  presumed,  while  acting  in  public  business. 


FOR  Dl 


385 


act  in  an  official  capacity.  i  v*'hy  the 

ant,  deriving  his  pubhc  ^^  gen- 

V.CW  idvv  and  the  election  of  li  under 

the  law,  ma}'  not  be  held  to  be  .^  were 

"'•c  'vent  of  the  state  imn"  ■  '  ociety, 

vx)\  district.     Where.  their 

.    from  the  same  souti .  ^    '  ui 

it  jurisdictions  and  1  ,r- 

0  be  the  doctrine  of  ti- 

■;  Comi.  R.  564;  Per- 

4  Conn,  R.  248;  Joh.' 

j  the  law  in  New  ^  .  ■<.,    v.    wiv 

has  it  been  held  th, 
iblic  agents,  officers  ol  tUc 
e  towns  and  districts, 
think,  likewise,  upon  the  second  point  made,  that  it  d  ■ 
that  an  agent,  acting  either  in  a  public  or  private  caj..   . 
necessity  made  personally  liable,  although  he  does  not  give 
e  of  action  against  someone  else.    We  believe  the  law  to  be, 
a  person  assumes  to  act  and  enter  into  contracts  in  the  name 
ther  as  his^  principal,  and  does  this  with  an  honest  intent, 
and  fully  disclosing  all  the  facts  touching  his  supposed  au- 
,  or  which  may  be  fairly  imphed  from  his  situation,  and  espe- 
':i  he  provides  against  his  personal  liability,  in  any  event  he 
be  held  liable  unless  he  be  guilty  of  fraud  or  false  repre- 
>n;  and  even  then  he  is  not  necessarily  liable  on  the  --- 
iself.     Story,   in   his   treatise  on  agency,   p.   322,   sa"? 


;nen  and  ot; 
iaw,  though  eiLCted 


IS  prmci, 

thr-rr,.r 


that 
but   ! 

25— R. 


r  that  in  no  case  ca: 
self,  as  the  contract;, 
to  charge  him;  thuc;, 
ould  without  auth '■;*-'* ■ 
e  a  deed  in  the  i 
agent  would  not 
ncipal,"    The  s.r 
■     Walter,  3  Bai  u. 
^sachUsetts,  in  L' 
lou  V.  Talbot,  16  id. 
vlvania,  in  Hopkirs 
ew  York  are  so; 
but  thai:   thr    ri:' 
irts.     V. 

r.ead.     V..,:,      .^^.,     M...v:     .■• 

Nicholson,  12  Eng.  L. 

nv. ..  it  is  not  unTr 

doe<;  not  1.. 

"Jii,    aiK 


t  be  sued,  on  V\ 
unless  there  arc 


■e 
...  Liie 
to  be 


DC 


.y--'-i- 


t  as  by 
the  othei 
1  lie  .R'icndant  f- 
pUiVditi,  as  tlie 
:;![>'icity,  and  in 
cusions  of  sr.i'^ 
ally  liable,  v.' 
or  - 
res' 

a-ent,  an" 
without 


with  tht 
in  such 
and  de- 

...ii  person - 
;iilty  of  frau'J 
13  own  pers' 
ury,  that,  if 
>rk,  such  [J 
. ,  as  trustee, 
^ss  promise  to  be  bound. 


OtT'CGr.       ' 

ject  to  ' 

In    Ihr 

irncr  a- 

misrepresen! 
;.!-Mntif?,  on  tiic  • 


claim   of   the  pi  ■ 
roneous  view  of  i,j. 
defendant  was  not 

public  asTT.tr       ''■ 


^  and  claimed,  thai, 
somewhere  else , 
I'on.  and  praye>' 

_  claim  of  iiu 

neWiiere — that  a  pub 

,r  ;...-»,. jiiMv 111.  and  not  an  individual 

that,  in  this  case,  the  defendant  couU' 

'n  the  strict  sense  of  the  law — and 

:t  as  the  law  requires,  and  so  a- 

•     My  liable. 

;     >   ,  ■'.]■■     ':  fcndant  filed  a  bii'. 

.  error,  brought  the  case  before  th- 

•  ved  for  the  advice  of  this  court.  " 
;^tion  is  the  admissibility  of  evi- 

'     '    *■       '    ■      'at  contracted  for 
.    or  as  a  public 
;.   <>i  liic  court  is  not  sub 

•  I-  i  to  establish  the  point  foi 

out  to  make  it  admissible 
''1  tnjft  he  made  the  con- 
personally  liable,  un 

'■•■'' I V  of  fraud  or 

■ement.    Tht 
did  not  ' 
lUst  be  li.t 
Jive  the  plainli 
conformity  to 
.  'ined   an    ■ 
..,..,,  ..v  i^....i.t  of  law,  ^ 
nild  not  be  classed 
t;'  hlic  busi; 


as  iij 


FOR    DISCLOSED    PRINCIPAL.  385 

to  act  in  an  official  capacity.  We  do  not  readily  apprehend  why  the 
defendant,  deriving  his  public  and  official  character  from  the  gen- 
eral law  and  the  election  of  the  people  of  a  given  district,  under 
the  law,  may  not  be  held  to  be  a  public  agent  as  much  as  if  he  were 
the  agent  of  the  state  immediately,  or  of  a  county,  town,  society, 
or  school  district.  Wherein  is  the  difference?  All  derive  their 
power  from  the  same  source,  parceled  out,  only  to  be  exercised  in 
different  jurisdictions  and  for  different  purposes.  Such  we  under- 
stand to  be  the  doctrine  of  our  courts,  as  held  in  Adams  v.  Whitt- 
lesey, 3  Conn.  R.  564;  Perry  v.  Hyde,  10  Conn.  R.  338;  Sterling  v. 
Peet,  14  Conn.  R.  248;  Johnson  v.  Smith,  21  Conn.  R.  627.  i\nd  the 
same  is  the  law  in  New  York:  Olney  v.  Wickes,  18  Johns.  124. 
Often  has  it  been  held  that  select  men  and  other  kindred  officers 
are  public  agents,  officers  of  the  law,  though  elected  by  their  re- 
spective towns  and  districts. 

We  think,  likewise,  upon  the  second  point  made,  that  it  does  not 
follow  that  an  agent,  acting  either  in  a  public  or  private  capacity, 
is  of  necessity  made  personally  liable,  although  he  does  not  give 
a  cause  of  action  against  someone  else.  We  believe  the  law  to  be, 
that  if  a  person  assumes  to  act  and  enter  into  contracts  in  the  name 
of  another  as  his  principal,  and  does  this  with  an  honest  intent, 
openly  and  fully  disclosing  all  the  facts  touching  his  supposed  au- 
thority, or  which  may  be  fairly  implied  from  his  situation,  and  espe- 
cially if  he  provides  against  his  personal  liability,  in  any  event  he 
cannot  be  held  liable  unless  he  be  guilty  of  fraud  or  false  repre- 
sentation ;  and  even  then  he  is  not  necessarily  liable  on  the  con- 
tract itself.  Story,  in  his  treatise  on  agency,  p.  322,  says :  "It 
seems  clear  that  in  no  case  can  an  agent  be  sued,  on  the  very  in- 
strument itself,  as  the  contracting  party,  unless  there  are  apt  words 
therein  so  to  charge  him;  thus,  if  a  person  acting  as  agent  for 
another  should  without  authority,  or  exceeding  his  authority,  make 
and  execute  a  deed  in  the  name  of  his  principal,  and  not  in  his  own 
name,  the  agent  would  not  be  liable  thereon,  although  it  would  not 
bind  the  principal."  The  same  was  held  in  Douriman  v.  Jones,  9  Jur. 
454 ;  Polhill  V.  Walter,  3  Barn.  &  Adol.  1 14.  The  same  doctrine  was 
asserted  in  Massachusetts,  in  Long  v.  Coburn,  ii  Mass.  97  (6  Am. 
Dec.  160)  ;  Ballou  v.  Talbot,  16  id.  461  (8  Am.  Dec.  146)  ;  and  the 
same  in  Pennsylvania,  in  Hopkins  v.  Mehaffy,  11  Serg.  &  R.  129. 
The  cases  in  New  York  are  somewhat  different,  but  we  think  there 
is  no  question  but  that  the  rule  laid  down  by  Judge  Story  is  the 
rule  of  our  courts.  We  would  especially  refer  to  the  cases  to  be 
found  in  i  Am.  Lead.  Cas.  432,  note  to  Elwell  v.  Shaw,  and  a 
later  case,  Lewis  v.  Nicholson,  12  Eng.  L.  &  Eq.  433. 

We  are  aware  that  it  is  not  unfrequently  laid  down  as  a  rule 
of  law  that  if  an  agent  does  not  bind  his  principal  he  binds  him- 
self; but  this  rule  needs  qualification,  and  cannot  be  said  to  be 
25 — Reixhard  Cases. 


386  LIABILITY    TO    THIRD    PARTY. 

universally  true  or  correct,  as  the  cases  already  cited  abundantly 
show.  If  the  form  of  the  contract  is  such  that  the  agent  personally 
covenants,  and  then  adds  his  representative  character,  which  he 
does  not  in  truth  sustain,  his  covenant  remains  personal  and  in  force, 
and  binds  him  as  an  individual ;  but  if  the  form  of  the  contract  is 
otherwise,  and  the  language,  when  fairly  interpreted,  does  not  con- 
tain a  personal  undertaking  or  promise,  he  is  not  personally  lia- 
ble ;  for  it  is  not  his  contract,  and  the  law  will  not  force  it  upon 
him.  He  may  be  liable,  it  is  true,  for  tortious  conduct  if  he  has 
knowingly  or  carelessly  assumed  to  bind  another  without  author- 
ity; or,  when  making  the  contract,  has  concealed  the  true  state  of 
his  authority,  and  falsely  led  others  to  repose  in  his  authority ;  but, 
as  we  have  said,  he  is  not  of  course  liable  on  the  contract  itself, 
or  in  any  form  of  action  whatever.  The  question  in  these  cases 
will  be  found  to  be  one  of  construction  of  the  language  and  mean- 
ing of  the  person  who  attempts  to  act  for  another,  and  is  a  ques- 
tion often  attended  with  very  great  difficulty  and  doubt;  but  when 
the  intention  is  ascertained,  that  intention  should  ever  be  the  rule 
for  deciding  whose  contract  it  is.  The  cases  are  exceedingly  con- 
flicting, and  unsatisfactory,  though  they  contain  some  principles  uni- 
versally acquiesced  in.  If  the  agent  is  acting  in  public  business, 
and  enters  into  a  contract  for  the  benefit  of  the  public,  he  is  pre- 
sumed to  act  in  his  official  capacity,  as  in  Hodgson  v.  Dexter,  i 
Cranch  345 ;  but  if  he  is  acting  in  private  business,  there  is  no  pre- 
sumption for  or  against,  and  he  is  or  is  not  liable,  according  to  the 
language  used.  The  county  court  held  that  the  defendant  did  not 
bind  those  for  whom  he  apparently  acted,  and  was  therefore  of 
necessity  liable  himself.     This  is  not  correct. 

We  have  no  occasion  to  comment  on  other  facts  of  the  case,  al- 
though we  think  that  in  a  subsequent  part  of  the  charge  there  is 
some  obscurity  in  the  language  employed  in  instructing  the  jury; 
but  we  do  not  think  it  necessary  to  go  into  the  question;  for  we 
mean  to  place  our  decision  upon  the  errors  already  pointed  out. 

In  this  opinion  the  other  judges  concurred. 

Judgment  to  be  reversed.^ 

^Accord:  Jones  v.  Gould,  108  N.  Y.  Supp.  31;  Laguna  Valley  Co.  v.  Fitch, 
121  111.  App.  607.     Compare  ]\Iayhe\v  v.  Prince,  11  Mass.  54. 

"The  legal  presumption  is,  when  a  known  agent  deals  or  contracts  within 
the  scope  of  his  authority,  that  credit  is  extended  to  the  principal  and  not  to 
the  agent ;  and  that  the  dealing  is  the  act,  or  the  contract  is  the  engagement, 
of  the  principal  alone,  as  if  he  were  personally  present  and  acting  or  con- 
tracting."   Brickell,  C.  J.,  in  Anderson  v.  Timberlake,  114  Ala.  377,  386. 


'  ,  UKlxli 
1873.     Supreme 


Contract  to  recovci 
fen.i::;!is  for  a  proniissoi 
ment  upon  which  was  f' 
Trial  in  the  superior  ■. 
for  the  plaintiff,  allowc 
which  it  appeared,  that 

known  as  such  by  the  plamtjft;  that  they  v 
*■'-"  Hanson  in  selling  the  note,  and  that  tht_v 
e  money,  less  a  commission,  before  the  former 
'  rt,   during  the  :i 
;se  of  the  note,  1 
vv'cit  aeiluig   iiic  note  as  brokers  for  Haii:>on,  vvhv 
.  ed  them  to  sell  it.    There  was  also  other  testimony  t^ 
^'v  that  the  plaintiff  knew  or  had  reasonable  cause  to  know  thest 
is.    The  plaintiff  denied  any  such  information  or  knowledge,  and 
red  evidence  tending  to  show  that  there  was  no  disclosure  of 
lilt  principal,-  and  nothing  to  lead  him  to  suppose  that  the  defendants 
were  not  themselves  the  owners  of  the  note. 

The  defendants  asked  the  court  to  t 
in  fact  agents  for  Hanson,  and  disci- 

•      .or  the  plaintiff  knew  it,  or  had  reasonable  cause  to  kn 
•ndants  would  not  be  liable.     But  the  court  rern>r'l  > 
:  ruled  that  the  question  was,  from  whom  did  i 
;d  that  he  was  buying  the  note — from  the  brol: 
;  that,  upon  the  uncontroverted  facts,  prima  ■' 


.  was  with  the 

^nd  to  r 

e  must  have  oc^ 

-'   state 

or  ought  t. 

,  that  he  was  -: 

ON,  J. — This  is  an  a^ 

tn.-^  cmin'i-.priess  of  : 

dff.    Tl 

rar.suiw't'.ijii,   . 

Upon  thes. 

I  the  court 

in": on,  and 

a.:-.::.  ..- 

it.  or  had  reasoD 

\i)c  necc- 


;at,  m  i 


•  know  it,  the 

is  too  broad. 
gs  or  transaction 


universally  true  < 
If' the  fori, 
iants,   and  1'^ 
aoes  not  in  In: 
and  binds  hir; 
otherwise,  an' 
tain  a  persor 
ble;  for  it  it- 
him.     ""' 
Icnow 
ity; 
his 


for  d 


VV 
thou.^ 
some 

but   Vvt    <.. 

mean  to  : 

In  '  ^ 


;lcd  abundantly 
:     ni  personally 
1    .  ■.  I  jr,   which  he 
iis  personal  and  in  force, 
form  of  the  contract  is 
iterpreted,  does  not  con- 
•, .  lie  is  not  personally  lia- 
•    Jaw  will  not  force  it  upou 
,   tortious  conduct  if  he  has 
■\\\d  another  without  author- 
concealed  the  true  state  of 
rcDose  in  his  authority;  but, 
\:-  on  the  contract  itself, 
j.'..e.  question  in  these  ca-'- 
ction  of  the  language  and  mc. 

ither,  and  is  a  qu-.:,- 
d  doubt;  but  when 
.'i\  iiiUiitioii  :>i.ouid  ever  be  the  rule 
is.     The  cases  are  exceedingly  con- 
ugh  they  contain  some  principles  uni- 
,    agent  is  acting  in  public  business 
the  benefit  of  the  public,  he  is  t 
pacity,  as  in  Hodgson  v.  Dexte; 
in  private  business,  there  is  no  j 
;e  is  or  is  not  liable,  according  to 
ourt  held  that  the  defendant  did 
'rently  acted,  and  was  therefore 
is  not  correct. 

uraent  on  other  facts  of  the  case, 
'jsequent  part  of  the  charge  therr 
■e  employed  in  instructing  the  jur 
>ry  to  go  into  the  question ;  for 
jxi  the  errors  already  pointed  out 
iges  concurred. 


I  iii.  App.  (X' 
"The  legal  pr 
'  pe  of  hi- 
nt :  and 


;  nf^una  Valley  Go.  v.  Fi 

contracts  wi- 
c  principal  ai-  ' 
ict  is  the  enp 
.   .'jiaiiy  pn  -cnt  and  acting 
Timberlake,  114  Ala.  377,  3.*^'' 


FOR    DISCLOSED    PRINCIPAL.  387 

WORTHINGTON  v.  COWLES  and  Another. 

1873.     Supreme  Judicial  Court  of  Massachusetts. 
112  Mass.  30. 

Contract  to  recover  back  money  paid  by  the  plaintiff  to  the  de- 
fendants for  a  promissory  note  signed  by  one  Hanson,  the  endorse- 
ment upon  which  was  forged. 

Trial  in  the  superior  court,  before  Lord,  J.,  who,  after  a  verdict 
for  the  plaintiff,  allowed  the  defendants'  bill  of  exceptions  from 
which  it  appeared,  that  the  defendants  were  note  brokers,  and  were 
known  as  such  by  the  plaintiff;  that  they  were  acting  as  brokers 
for  Hanson  in  selling  the  note,  and  that  they  paid  him  the  pur- 
chase money,  less  a  commission,  before  the  forgery  was  discovered. 
The  defendants  testified  that,  during  the  negotiations  which  re- 
sulted in  the  plaintiff's  purchase  of  the  note,  they  informed  him  that 
they  were  selling  the  note  as  brokers  for  Hanson,  who  had  em- 
ployed them  to  sell  it.  There  was  also  other  testimony  tending  to 
show  that  the  plaintiff  knew  or  had  reasonable  cause  to  know  these 
facts.  The  plaintiff  denied  any  such  information  or  knowledge,  and 
offered  evidence  tending  to  show  that  there  was  no  disclosure  of 
the  principal,  and  nothing  to  lead  him  to  suppose  that  the  defendants 
were  not  themselves  the  owners  of  the  note. 

The  defendants  asked  the  court  to  rule  that  if  the  defendants  were 
in  fact  agents  for  Hanson,  and  disclosed  their  agency  to  the  plain- 
tiff, or  the  plaintiff  knew  it,  or  had  reasonable  cause  to  know  it,  the 
defendants  would  not  be  liable.  But  the  court  refused  so  to  rule; 
and  ruled  that  the  question  was,  from  whom  did  the  plaintiff  under- 
stand that  he  was  buying  the  note — from  the  brokers  or  from  Han- 
son ;  that,  upon  the  uncontroverted  facts,  prima  facie,  the  transac- 
tion was  with  the  defendants,  and  to  relieve  them  from  liability 
there  must  have  occurred  such  a  state  of  facts  that  the  plaintiff 
understood,  or  ought  to  have  understood  as  a  man  of  reasonable 
intelligence,  that  he  was  dealing  with  Hanson. 

Morton,  J. — This  is  an  action  of  contract  upon  the  implied  war- 
ranty of  the  genuineness  of  the  signature  to  a  note  sold  by  the  de- 
fendants to  the  plaintiff.  The  plaintiff  claimed  that  in  the  purchase 
of  the  note  he  dealt  solely  with  the  defendants,  and  upon  their 
credit.  The  defendants  claimed  that  they  were  acting  as  agents  of 
Hanson  in  the  transaction,  and  that  their  principal  was  disclosed 
to  the  plaintiff.  Upon  these  points,  the  evidence  was  conflicting. 
The  defendants  asked  the  court  to  rule  "that  if  the  defendants  were 
in  fact  agents  for  Hanson,  and  disclosed  their  agency  to  the  plain- 
tiff, or  the  plaintiff  knew  it,  or  had  reasonable  cause  to  know  it,  the 
defendants  would  not  be  liable." 

Considered  as  an  abstract  proposition  of  law,  this  is  too  broad. 
It  omits  the  necessary  element  that,  in  the  dealir.gs  or  transaction 


388  LIABILITY    TO    THIRD    PARTY. 

in  question,  they  were  acting  as  such  agents.  It  may  be  true  that 
the  defendants  were  agents  of  Hanson,  and  known  to  be  such  by 
the  plaintiff,  and  yet  if,  in  the  purchase  of  this  note,  it  was  under- 
stood by  the  parties  that  the  plaintiff  was  dealing  with  and  upon 
the  credit  of  the  defendants,  they  would  be  liable.  An  agent  may 
deal  so  as  to  bind  himself  personally ;  it  is  always  a  question  of  the 
intention  and  understanding  of  the  parties.  The  presiding  judge 
properly  refused  to  give  the  instructions  in  the  form  requested  by 
the  defendants.  Instead  thereof,  he  ruled  in  substance  that  the 
question  was,  from  whom  did  the  plaintiff  understand  that  he  was 
buying  the  note — from  the  broker  or  from  Hanson?  and  that  if 
such  a  state  of  facts  occurred,  that  the  plaintiff  understood,  or 
ought  to  have  understood  as  a  man  of  reasonable  intelligence,  that 
he  was  dealing  with  Hanson,  the  defendants  would  not  be  liable. 

These  instructions  were  correct,  as  applied  to  the  facts  of  the 
case.  The  plaintiff  dealt  with  the  defendants.  His  evidence  tended 
to  show  that  he  contracted  with  them  as  principals.  To  meet  this 
prima  facie  case,  the  defendants  undertook  to  show  that  in  this 
transaction  they  were  dealing  as  agents  of  a  disclosed  principal. 
Unless  from  their  disclosures  or  other  sources  the  plaintiff  under- 
stood, or  ought  as  a  reasonable  man  to  have  understood,  that  he 
was  dealing  with  Hanson,  he  had  a  right  to  assume  that  he  was 
dealing  with  the  defendants  as  principals.  The  instructions  given 
were  to  this  effect,  and  were  as  favorable  to  the  defendants  as  the 
instructions  requested,  with  the  addition  of  the  necessary  qualifica- 
tion that  the  defendants  were  in  this  transaction  dealing  as  the 
agent  of  Hanson.  Wilder  v.  Cowles,  100  Mass.  487.  Merriam  v. 
Wolcott,  3  Allen,  258. 

Exceptions  overruled.^ 


MAURY  V.  RANGER. 

1886.     Supreme  Court  of  Louisiana.     38  La.  Ann.  485. 

PocHE,  J. — Plaintiffs  seek  to  hold  defendants  personally  liable 
under  a  contract  of  affreightment  which  the  latter  had  executed  as 
agents. 

^  An  agent,  although  acting  within  his  authority  for  a  disclosed  principal,  may 
enter  into  a  personal  undertaking,  by  which  he  will  be  bound.  Fisher  v.  Hag- 
gertv,  36  111.  128;  Shordan  v.  Kyler,  87  Ind.  38;  Fredendall  v.  Taylor,  26  Wis. 
286.  ■ 

"An  agent  may  expressly  contract  on  his  own  credit  and  be  bound,  even 
though  his  principal  be  known.  The  declaration  of  intention  and  agreement  in 
writing  on  the  part  of  the  agent  to  bind  himself  personally  may  be  so  ex- 
plicit as  to  admit  of  no  denial  by  parol.  But  usually  where  the  principal  is 
disclosed,  the  question  is  one  of  fact."  Lumpkin,  J.,  in  Phinizy  v.  Bush,  129 
Ga.  479,  492. 


3«'> 

iie  principal  defense  is  that  t'  zhout  the 

trar?  i<  tions  which  form  the  ' 

f'  ■•      •  ners  of  the  vessel  in  .   ...i  -. 

!^,  and  that  they  are  ;nder 

ract  declared  upon.    '  '!  • 

favor  of  plaintiffs  t> 
The  pertinent  fac 
In  July,  1883,  the  . 
for  2,709  bales  of  cotton,  t . 
Hncia,  then  on  her  wav  '  -  _.,.  ^ 

land,  at  the  rate  of  1  :>er  poui 

Lur.ier  the  effect  of  the  qvi..i  u  --.w-i.  '^     -'■ 

thorities  at  the  mouth  of  the  pi  river, 

allowed  to  reach  the  port  oi  ;. cw  Orlear 
,   with  the  knowledge  and   consent  of  j 
m  to  Liverpool  by  the  steamer  Chancellor,  owned  by  h 
of  steamers. 
The  bill  of  lading  iss-ued  by  the  latter  steamer  was  to  the  stt 
•~-^cia,  but  it  called  for  freight  at  the  rate  of  three-eighths  <.-i  ■■ 
■\y,  which  was  executed  irom  the  consignees  at  Liverpool  before 
\er)''  of  the  cotton  by  the  Chancellor.     It  also  appears  that  on 
.ery  some  of  the  cotton  was  found  d-smaged,   for  which  the 
^'uppers  were  charged  the  sum  of  ii^  sterling. 

The  demands  of  plaintiffs  is  for  th  ice  of  freight  charges 

he  cotton  at  the  rate  of  19-64  of  a  penny  per  pound  and  the 
'  ges  exacted  at  the  increased  rate  of  three-eighths  of  a  p'^'^^^-     -^ 
the  amount  paid  by  them  on  account  of  the  damaged  c^ 
vi-.ole  amounting  in  our  curr- 

Plaintiff's  theory,  which  ^  ir  learn 

district  court,  under  whicli 
personally  liable,  presents  tv\     ^ 
-t.     The  agents  of  merchnnts  residmg  in 
.nother  state,  are  personii"      ■  ^'''>^.   .<lii^t' 
!'S  as  agents  or  not  in  ' 
"  ':hat  the  credit  is  giv<. 
:  heir  employers ;  bur 
"le  credit  was  given 
-re  aii  agent  fails  to 
:  -  i;nd  personally. 

Mir  appreciation  of  the  facts  i:  ^„    .i 

'  •  n  that  the  defendants  uould  ni  under 

:  .  I  and  narrow  rule  contained  ij;   :  ,  .  .-.    -; 

■  fer  to  rest  our  conclusions  on  < 

iction  of  a  principle  ' 

lut  which  has  long 
:vc  atjU  enlightened  jurispnideiu  iing  English 


388 


fO    THI: 


^n,  they  wer 
dants  were 
.Liff,  and  yet 
i,L'.ji.ii-   I'v  the  par*-- 
the  credit  of  the 
'  .  '  so  as  to  '  ' 

,^  it  ion  an'' 
pro.  ■ 
the'>; 
question 
buying  t! 
such  a 


would 


r^e  true  that 

J  be  such  by 

•,  it  was  under- 

with  and  upon 

An  agent  may 

•^^stion  of  the 

.-.iding  judge 

'  m  requested  by 

-stance  that  the 

land  that  he  was 

n  ?     and  that  if 

.;    understood,  or 

1  ;:■..'  intelligence,  that 

,  ould  not  be  liable. 

to  the  facts  of  the 

P>  evidence  tended' 

To  meet  this 

.    that  in  this 

-   agents  of  a  disclosed  principal. 

other  sources  the  plaintiff  under- 

man  to  have  understood,  that  he 

'   '    '.c'nt  to  assume  that  he  was 

:  '  ■    ;  ;         The  instructions  given 

'  ibie  to  the  defendants  as  the 

v>n  of  the  necessary  qualifica- 

■!   this  transaction   dealing  as  the 


chat  the 


undert>j 


le^-    ior,  M.-t;-. 


ATfrr 


under  a  contract 
agents. 

en!c> 

ufertv,  30  Hi    i  2>j :  ^^imi'' 

286.' 

"A- '■'   may  expt' 

thoi  cipal  be  I 


RANGER. 

..........> 

\nr.      .Sr 

iold  de' 

l^ei  :yj!i;ai;y    iiai>it,- 

which 

had  executed  a? 

FOR    DISCLOSED    PRINCIPAL.  389 

The  principal  defense  is  that  the  defendants  acted  throughout  the 
transactions  which  form  the  basis  of  this  suit  merely  as  agents  of 
the  owners  of  the  vessel  in  whose  name  they  had  signed  the  bills 
of  lading,  and  that  they  are  not  personally  liable  to  plaintiffs  under 
the  contract  declared  upon.  They  prosecute  this  appeal  from  a  judg- 
ment in  favor  of  plaintiffs  for  the  full  amount  of  their  claim. 

The  pertinent  facts  in  the  record  are  as  follows : 

In  July,  1883,  the  defendants  executed  bills  of  lading  to  plaintiffs 
for  2,709  bales  of  cotton,  to  be  received  on  board  of  the  steamer 
Gracia,  then  on  her  way  to  this  city,  and  consigned  to  Liverpool, 
England,  at  the  rate  of  19-64  of  a  penny  sterling  per  pound.  That 
under  the  effect  of  the  quarantine  then  established  by  the  state  au- 
thorities at  the  mouth  of  the  Mississippi  river,  the  vessel  Gracia  was 
not  allowed  to  reach  the  port  of  New  Orleans,  whereupon  defend- 
ants, with  the  knowledge  and  consent  of  plaintiffs,  shipped  the 
cotton  to  Liverpool  by  the  steamer  Chancellor,  owned  b\^  a  different 
line  of  steamers. 

The  bill  of  lading  issued  by  the  latter  steamer  was  to  the  steamer 
Gracia,  but  it  called  for  freight  at  the  rate  of  three-eighths  of  a 
penny,  which  was  executed  irom  the  consignees  at  Liverpool  before 
delivery  of  the  cotton  by  the  Chancellor.  It  also  appears  that  on 
delivery  some  of  the  cotton  was  found  damaged,  for  which  the 
shippers  were  charged  the  sum  of  118  pounds  sterling. 

The  demands  of  plaintiffs  is  for  the  difference  of  freight  charges 
on  the  cotton  at  the  rate  of  19-64  of  a  penny  per  pound  and  the 
charges  exacted  at  the  increased  rate  of  three-eighths  of  a  penny,  and 
for  the  amount  paid  by  them  on  account  of  the  damaged  cotton,  the 
whole  amounting  in  our  currency  to  $2,977.10. 

Plaintiff's  theory,  which  was  adopted  b}-  our  learned  brother  of 
the  district  court,  under  which  they  propose  to  make  the  defend- 
ants personally  liable,  presents  two  propositions  of  law : 

1st.  The  agents  of  merchants  residing  in  a  foreign  country,  or 
in  another  state,  are  personally  liable,  whether  thc}^  describe  them- 
selves as  agents  or  not  in  the  contract.  In  such  cases  it  is  pre- 
sumed that  the  credit  is  given  exclusively  to  them  to  the  exonera- 
tion of  their  employers ;  but  the  presumption  may  be  rebutted  by 
proof  that  the  credit  was  given  to  both,  or  to  the  principal  only. 

2nd.  Where  an  agent  fails  to  disclose  the  name  of  his  principal, 
he  is  bound  personally. 

While  our  appreciation  of  the  facts  in  this  case  would  justify 
the  conclusion  that  the  defendants  would  be  exonerated  even  under 
the  stringent  and  narrow  rule  contained  in  plaintiffs'  first  proposi- 
tion, we  prefer  to  rest  our  conclusions  on  other  grounds,  and  to 
withhold  our  sanction  of  a  principle  which  once  prevailed  in  some 
English  courts,  but  which  has  long  since  been  repudiated  by  more 
progressive  and  enlightened  jurisprudence,  not  excluding  English 
tribunals. 


390  LIABILITY    TO    THIRD    PARTY. 

The  rule  was  formulated  by  Judge  Story  in  his  work  on  agency, 
predicated  on  some  adjudications  in  the  jurisprudence  of  England, 
but  he  lived  long  enough  to  appreciate  its  harshness  and  its  dam- 
aging effect  on  international  commercial  intercourse,  which  was 
subsequently  encompassed  in  more  liberal  ties,  and  became  in  time 
immeasurably  increased  and  facilitated  by  the  application  of  steam 
to  navigation  on  the  seas,  the  invention  of  the  electric  telegraph,  and 
the  multiplicity  of  railroad  communications.  Hence  we  find  him 
in  the  revision  of  his  work  yielding  a  cheerful  compliance  with 
modern  adjudications  on  the  subject-matter,  by  the  following  ma- 
terial modification  of  his  views  as  originally  enunciated :  "And 
probably  the  better  rule  is  that  the  agent  of  a  foreign  principal  is 
not,  as  a  question  of  law,  personally  liable  on  every  contract  made 
for  his  principal.  It  is  rather  a  question  of  fact  in  each  case,  a 
question  of  intention,  to  be  ascertained  by  the  terms  of  the  particu- 
lar contract  and  the  surrounding  circumstances."  Story  on  Agencv 
(6th  ed.),  §  268. 

In  the  next  section,  268  "a,"  the  learned  author  adds  another  very 
wise  and  very  significant  qualification  to  the  rule  in  the  following 
words:  "This  presumption  of  credit  being  given  alone  to  the  agent, 
and  not  to  the  foreign  principal,  applies  with  the  most  force  to 
purchases  made  by  an  agent  for  a  foreign  principal ;  but  when  a 
written  contract  is  made,  and  expressed  to  be  with  a  foreign  princi- 
pal and  not  with  the  agent,  the  latter  is  not  liable,  although  the  con- 
tract be  signed  by  him,  for  and  on  account  of  the  foreign  principal." 

These  principles  are  unqualifiedly  sanctioned  by  respectable  au- 
thority of  other  states  of  the  Union ;  and  in  connection  with  the 
second  proposition  advanced  by  plaintiffs,  they  have  been  followed 
in  several  cases  by  our  own  court.  Oelricks  v.  Ford,  33  How.  49; 
Lyon  V.  Williams,  5  Gray  457;  Bray  v.  Ketell,  i  Allen  (Mass.)  80; 
New  Castle  v.  Red  River  R.  Co.,  i  R.  147 ;  Zacharie  v.  Nash,  13  La. 
20;  Nott  V.  Papet,  15  La.  306;  Thorne  v.  Tait,  8  Ami.  8,  14  Ann. 
448 ;  Parlange  v.  Faures ;  Spotts  v.  Cowan,  9  Ann.  520. 

In  our  examination  of  this  case  we  have  been  guided  by  the 
jurisprudence  thus  established,  and  we  conclude  that  the  case  is 
clearly  with  the  defendants. 

In  a  contract  of  affreightment,  such  as  the  one  disclosed  in  this 
record,  we  find  an  apt  illustration  of  the  wisdom  of  the  rule  that 
in  determining  the  question  of  the  presumption  as  to  which  of  the 
parties  credit  is  given,  which  is  the  vital  issue  in  all  such  cases, 
courts  must  deal  with  the  question  of  fact  in  each  case,  with  the 
question  of  intention  to  be  ascertained  by  the  terms  of  the  particular 
contract  and  the  surrounding  circumstances. 

Now  in  this  case  the  record  shows  that  defendants  were  (like 
plaintiffs)  commission  merchants  and  factors  and  dealers  in  cotton; 
and  that  as  an  appendage  to  their  main  business  they  undertook 
the  agency  of  a  line  of  steamers  known   and  designated  as  the 


Line  of  Stcatuers,'  ;:n  Liveii  >  port. 

iH lure  of  their  connc  stecinu:-  whose 

:^y  entered  into  t.  made 

r.laintiffs  by  the  \  •  "'ho 

the  contract  betv  as 

if  est  to  them  on  evci  y 

ding-  which  were  .ctendant 

accepted,  and  at  once  trair  -cment  by  tl; 

rts  a  commercial  security. 

The  heading  of  the  bill  cu 
...s"  "Louis  Ranger  &  Co., 
in  the  bill  is  made  in  the  n.: 
!    :       lamander  and  owner,- 
rs  as  agents. 

11,  later  on,  circumstances  prevented  the  iiter,. 
11  tract  through  the  steamer  contemplated  by  the 
:s  were  at  once  notified  of  the  circtimstances,  and  of  the  ii" 
che  defendants  to  make  the  shipment  by  another  steamer,  the  L 
ilpr.  of  the  "Harrison  Line,"  and  were  requested  to  change  th< 
nee  accordingly;  all  of  which  was  accepted  without  murmur 
ection    by    plaintiffs.  "  And    the   record    further    shows    that 
ii  a  "cable"  to  the  managers  of  the  line  at  Liverpool,  the  de- 
(s  also  notified  them  of  the  unforeseen  disability  of  the  vessel 
carry  out  their  contract  with  plaintiffs,  and  that  the  consent  of 
.aid  managers  was  obtained  to  operate  the  change  of  shipment  to 
the  Chancellor. 

'"    -^n  sued  in  this  case,  the  defendants  again  reiterated  in  their 
a  statement  of  their  true  character  in  the  premises  and  ■ 
their  real  and  legal  connection  with  l!ie  contract,  and  they 
their  previous  disclosure  of  their  ag^ency  as  well  as  th- 

:.naging  owners  of  the  line  of  steamers. 
■  :  ■    .:  that  they  were  the  agents  of  the  "Serra 
&  Co..  of  Liverpool,  managing  ;  a  ners,"  and  dei 
We  must  hold  these  acts  as  ;  .;+itiH-.'  •.. 

ance  vvith  the  very  riile  invok 

::'^'      '  mple  legal  and  equitr.  '!.-:, 

d1  personal  liability  . 

l  any  expression  as  to  tUe  rigliL  of  j 
!n  against  any  other  party  to  the  cont; 
e  view-;  as  herein  expressed   we  eliminate  all   di- 
erits  of  their  claims  against  the  steamet  Graci^i  ,.:5. 

The  dj'-ej-sion  will  involve  questions  of  gre  aid  of 

tractive  study,  but  it  would  answer  no  useful  V—  -  '' 

lO  conclusicM  which  we  have  reached. 

It  is  therci\!re  ordered,  adjudged  and  deer-     '  ri 

■spealed   fiuni  be  annulled,  avoided  and  r>  v 

rdered  and. decreed  that  plaintiffs'  demand  aj^ 


are  in>- 

an-. 

:i- 

^cr 
he 

rJABILI" 


ted  on  some  adji 
I'jL  iie  lived  long  < 
aging  effect  on   in* 
subsequently  encon: , 
imiiieasurably  incre: 
to  navigation  on  tli- 
the  multiplicit}-^  •^"" 
in  the  revision 
modern  adj'- ' 
terial  mo<i 
probably  t' 
not,  as  a  '■<. 
for  hi- 
que^i-l 
la- 


Lyon  v,  v . 
New  Castle 
20;  Nott  \ 
448 ;  Parlaijj^tr 
In  our  exar 


icun- 

.;    was 

le  in  time 

of  steam 

h,  and 

.  -     .> .    ..xiJ  him 

■   compliance  with 

i-itiaiu:  ,  <:y  the  following  ma- 

^   originally   enunciated:    "And 

agent  of  a  foreign  principal  is 

;,   liable  on  every  contract  made 

a  question  of  fact  in  each  case,  a 

.^;  lined  by  the  terms  of  the  particu- 

umstances."    Story  on  Agency 

arned  author  adds  another  ver\ 

n  to  the  rule  in  the  following 

being  given  alone  to  the  agent, 

tl,  applies  Avith  the  most  force  to 

r  a  foreign  principal;  but  when  a 

pressed  to  be  with  a  foreign  princi- 

'U.ter  is  not  liable,  although  the  con- 

>n  account  of  the  foreign  principal.' 

"  •  sanctioned  by  respectable  au- 

u ;  and  in  connection  with  the 

plaintiffs,  they  have  been  followed 

:t.    Oelricks  v.  Ford,  33  How.  49; 

P>ray  v.  Ketell.  i  Allen  (Mass.)  80; 

f  K    147  ;  Zacharie  v.  Nash,  13  La. 

:.         Pait,  8  Ann.  8,  14  Ann. 

'twan,  9  Ann.  520. 

we  have  been  guided  by  the 

aivrl  we  conclude  that  the  case  is 


contract  0.1 
.,  we  find  an 
in  determining  the 
parties  credit  is  giv..i. 
courts  must  deal  with 
question  of  intention  to 
contract  and  the  surrov 
Now  in  this  case  tb 
plaintiffs)  commission  1 
and  that  as  an  appen.: 


ch  as  the  one  disclosed  in  this 
f  the  wisdom  of  the  rule  that 
)  resumption  as  to  which  of  the 
.'  vital  is<sue  in  all  such  cases, 
of  fact  in  each  case,  with  the 

">  the  terms  of  the  particul.:'- 

,^ices. 
^vs  that  defendants  were   (like 
i  factors  and  dealers  in  cotton; 
main  business  they  undertook 

■■l^i,^■n     a.Mil     i1f";io"iiatP'f';     -nv     iht- 


FOR    DISCLOSED    PRINCIPAL.  391 

"Serra  Line  of  Steamers,"  plying  between  Liverpool  and  this  port. 

The  nature  of  their  connection  with  the  steamer  Gracia,  for  whose 
account  they  entered  into  the  contract  under  discussion,  was  made 
known  to  plaintiffs  by  the  very  freight  brokers,  Dobell  &  Bell,  who 
negotiated  the  contract  between  them  and  the  defendants,  and  was 
made  manifest  to  them  on  the  very  face  and  in  every  line  of  the 
bills  of  lading  which  w^ere  executed  by  the  defendants,  formally 
accepted,  and  at  once  transferred  by  endorsement  by  the  plaintiffs 
as  a  commercial  security. 

The  heading  of  the  bill  contains  the  words :  "Serra  Line  of  Steam- 
ers," "Louis  Ranger  &  Co.,  Agents,  New  Orleans ;"  every  stipulation 
in  the  bill  is  made  in  the  name  and  for  the  account  of  the  steamer, 
her  commander  and  owners,  and  the  contract  is  signed  by  the  de- 
fendants as  agents. 

When,  later  on,  circumstances  prevented  the  literal  execution  of 
the  contract  through  the  steamer  contemplated  by  the  parties,  plain- 
tiffs were  at  once  notified  of  the  circumstances,  and  of  the  intention 
of  the  defendants  to  make  the  shipment  by  another  steamer,  the  Chan- 
cellor, of  the  "Harrison  Line,"  and  were  requested  to  change  their 
insurance  accordingly ;  all  of  w^hich  was  accepted  without  murmur 
or  objection  bv  plaintiff's.  And  the  record  further  shows  that 
through  a  "cable"  to  the  managers  of  the  line  at  Liverpool,  the  de- 
ifendants  also  notified  them  of  the  unforeseen  disability  of  the  vessel 
to  carry  out  their  contract  with  plaintiffs,  and  that  the  consent  of 
said  managers  was  obtained  to  operate  the  change  of  shipment  to 
the  Chancellor. 

When  sued  in  this  case,  the  defendants  again  reiterated  in  their 
answer  a  statement  of  their  true  character  in  the  premises  and  of 
their  real  and  legal  connection  with  the  contract,  and  they  amplified 
their  previous  disclosure  of  their  agency  as  well  as  the  names  of 
the  managing  owners  of  the  line  of  steamers.  They  therein  de- 
clared that  they  were  the  agents  of  the  "Serra  Line,  J.  T.  Nickels 
&  Co.,  of  Liverpool,  managing  owners,"  and  defendants'  principals. 

We  must  hold  these  acts  as  a  substantial  and  sufffcient  compli- 
ance with  the  very  rule  invoked  by  plaintiffs  themselves,  an-d  as 
affording  ample  legal  and  equitable  grounds  to  exonerate  the  defend- 
ants from  all  personal  liability  in  the  premises. 

We  pretermit  any  expression  as  to  the  right  of  plaintiffs  to  en- 
force their  claim  against  any  other  party  to  the  contract,  and  under 
the  view^s  as  herein  expressed  we  eliminate  all  discussion  of  the 
merits  of  their  claims  against  the  steamer  Gracia,  or  her  owners. 

The  discussion  will  involve  questions  of  great  interest  and  of 
attractive  study,  but  it  w'ould  answer  no  useful  purpose  in  face  of 
the  conclusion  which  we  have  reached. 

It  is  therefore  ordered,  adjudged  and  decreed,  that  the  judgment 
appealed  from  be  annulled,  avoided  and  reversed ;  and  it  is  now 
ordered  and  decreed  that  plaintiffs'  demand  against  defendants  be 


392  LIABILITY    TO    THIRD    PARTY. 

rejected,  and  that  their  action  be  dismissed  at  their  costs  in  both 
courts.^ 


I  (b)      UNAUTHORIZED   CONTRACTS, 

WHITE  AND  Others  v.  SKINNER. 
1816.     Supreme  Court  of  New  York.     13  Johns.  307. 

This  was  an  action  of  covenant.  The  declarations  set  forth  an 
agreement  under  seal,  dated  the  25th  of  April,  1815,  by  which  the 
plaintiffs  covenanted  to  make  and  furnish,  at  the  Granville  cotton 
factory,  a  quantity  of  machinery,  of  a  certain  description,  one-half 
of  which  was  to  be  delivered  in  October,  1815,  and  the  other  half  on 
or  before  the  ist  of  May  1816,  and  that  the  defendant,  in  and  by 
the  said  agreement,  covenanted  to  pay  the  plaintiffs  for  the  said  ma- 
chinery 15,120  dollars,  in  various  instalments;  one  of  which,  or  900 
dollars,  was  to  be  paid  on  the  30th  of  May,  another  of  500  dollars 
on  the  29th  of  June,  and  another  of  500  dollars  on  the  29th  of  July, 
1815;  and  breaches  were  assigned  for  the  non-payment  of  these 
several  instalments. 

Platt,  J. — The  law  is  well  settled  that  one  person  cannot  seal  for 
another  without  express  authority,  and  it  is  also  settled  that  if  a 
person  execute  a  bond  as  attorney  for  another,  without  authority, 
such  person  so  assuming  to  act  is  personally  bound,  as  though  he 
had  covenanted  in  his  own  name  simply :  7  T.  R.  207 ;  3  Johns.  Cas. 
180;  2  Cai.  254;  5  East  148. 

The  case  of  Tippets  v.  Walker,  4  Mass.  595,  is  similar  to  the  pres- 
ent in  almost  every  feature.  There  a  committee  of  a  turnpike  cor- 
poration covenanted  in  their  own  names,  as  a  committee,  to  pay  for 
making  a  road  for  the  corporation,  and  the  question  was,  whether 
they  were  personally  liable.  Parsons,  C.  J.,  in  delivering  the  opinion 
of  the  court,  says :  "If  any  individuals  who  are  agents  for  the  cor- 
poration, or  of  any  officers  of  it,  will  voluntarily  stipulate  with  work- 
men for  their  payment,  it  is  reasonable  that  they  should  be  holden 
to  their  contract.  A  case  of  this  kind  is  not  like  a  contract  made  by 
an  agent  for  the  public,  and  in  the  character  of  an  agent,  although 
it  may  contain  an  engagement  to  pay  in  behalf  of  the  government. 
For  the  faith  and  ability  of  the  state  in  discharging  all  contracts 
made  by  its  agents  in  behalf,  cannot,  in  a  court  of  law,  be  drawn  in 
question."    Testing  the  defendant's  plea  by  these  rules,  I  think  it  is 

^Accord:   Kaulback  v.  Churchill,  59  N.  H.  296;  Oelricks  v.  Ford,  64  U.  S.  49. 

Contra:  Rogers  v.  March,  33  Me.  106;  Vawter  v.  Baker,  ^23  Ind.  63.  In  the 
latter  case  it  was  said  by  Davidson,  J.,  that  a  principal  domiciled  in  another 
state  of  the  United  States  would  not  be  regarded  as  a  foreign  principal  under 
the  rule  laid  down.    Compare  with  Oelricks  v.  Ford,  supra. 


393 

■-1,  and  the  demurrer  is  w  sented 

limed  to  act  as  \V  manu- 

.:^        j-pany.     He  is  no\  s^.  ca- 

:  and  to  exonerate  himself.  1  n^e 

.:  had  authority  to  seal  for  '  ..,,...;.-. 

covenant  is  not  to  be  re  •  a  nullity, 

this  specialty  securi;  t  bind  t-' 

the  defendant  reyn-  •  pgrent 

'  ligator)^  on  t' 
t;  not  on  the  r 
.  by  which  the  defen^ .  and  Hitciv 

.  or  for  the  company,     .   .  :,^-.  ...-  "  ''~  •  ^-  ' 

hich  the  defendant  alone  ible,  an 

■jn  the  plaintiffs  to  prove  eitiv.  r  luc  negative  ur  :.  t 

is  therefore  bad,  because  it  contains  no  such  ni 

.  the  plaintiffs  might  have  taken  issue.    If  the 
■uially  bound,  he  ought  by  his  plea  to  have  show 
.'venant  the  plaintiff's  had  a  right  of  action  against  some  other  p<r; 
>n. 

That  the  plaintiffs  were  stockholders  or  partners  in  this  manufac- 
-i:  2:  company  affords  no  ground  to  defeat  their  claim  under  this 
■ant.    The  plaintiff's  are  entitled  to  judgment  on  the  demurrer. 
Judgment  for  the  plaintiffs. 


DUSENBURY  v.  ELLIS. 

;8o2.     Supreme  Court  of  New  York.    3  Johns.  ( 

error  on  certiorari  from  "s  court.    ¥.'■' 

,  before  a  justice,  on  a  pr 
:,  given  by  Dusenbury  to  j_ 
jd,  in  blank.    The  note  was  stgned  by  ' 
manner:    "For  Peter   '^'  :;,-;.. 

note  was,  otherwise, 
>  "I  promise,"  etc.    It  v. 
able,  having  signed  the 
''iced  his  letter  of 
'.  ••  i;  more  than  the  p' 
ity  to  give  notes,  or  bind  the  '  he 

•e  judgment  for  the  plaintiff  ; 

RiAM. — There   can   be   no  d-  ■  ry 

without  having  any 
•ley  could  not  bind  l 
An  aui' 
■K  an  au' 


392 


m    PARTY 


courts. 


lx)th 


lORIZEP 


i8: 
This 


factf 


T 
ent  ■ 

making  a  re 
they  were  pc 
of  the  court, 
poration,  or  ' 
men  for  theii   . 
to  their  contract, 
an  agent  for  the 
it  irr.r.    contain  a- 
For  the  faith  anu  . 
made  by  its  agents  i; 
question."    Testing  ^ 

\-lrrrrd-    Kni-ll.ack  v 
C  "iitra:    T<'ig>T.;  \     .M 

Inttcr  case  it    * 

■>t.ilc  of  the  r- 


Johns.  307. 

"nant.     The  declarations  set  forth  an 
25th  of  April,  1815,  by  which  the 
-  1  furnish,  at  the  Granville  cotton 
of  a  certain  description,  one-half 
..jctober,  181 5,  and  the  other  half  on 
'6,  and  that  the  defendant,  in  and  by 
1  to  pay  "'  "''^:  for  the  said  ma- 

ms inst.'  .if  which,  or  900 

ih  of  Alay,  anouier  of  500  dollars 
of  500  dollars  on  the  29th  of  July, 
or  the  non-payment  of  thes" 

.settled  that  one  person  cannot  seal  for 

-•"■y,  and  it  is  also  settled  that  if  a 

y  for  another,  without  authority, 

IS  personally  bound,  as  though  he 

-imply :  7  T,  R.  207 ;  3  Johns.  Cas. 

4  Mass.  595,  is  similar  to  the  pres- 

.re  a  committee  of  a  turnpike  cor- 

uames,  as  a  comm.ittee,  to  pay  foi 

ni,  and  the  question  was,  whether 

■ms,  C.  J.,  in  delivering  the  opinion 

luals  who  are  agents  for  the  cor- 

ill  voluntarily  stipulate  with  work 

>nable  that  they  should  be  holden 

ind  is  not  like  a  contract  made  by 

:e  character  of  an  agent,  altliougb 

pay  in  behalf  of  the  government. 

'V?-  in  discharging  all  contracts 

I  a  court  of  law,  be  drawn  ij' 

ca  by  these  rules,  I  think  it  is 

296 ;  Oelricks  v.  Ford,  64  U.  ^ 
iwter  V.  Baker,  553  Ind.  63.    1. 
;!rincipal  domkiled  in  ano'ii! 
■  as  a  foreign  principal  undc 

■■='.  "-'Kpra. 


UNAUTHORIZED    CONTRACTS.  393 

bad,  and  the  demurrer  is  well  founded.  The  defendant  represented 
himself  and  assumed  to  act  as  the  agent  of  the  directors  of  the  manu- 
facturing company.  He  is  now  sued  in  his  private  individual  ca- 
pacity; and  to  exonerate  himself,  he  was  bound  to  aver  and  prove 
that  he  had  authority  to  seal  for  his  co-directors. 

The  covenant  is  not  to  be  regarded  as  a  nullity.  The  plaintiff  re- 
lied on  this  specialty  security.  If  it  does  not  bind  the  directors,  for 
whom  the  defendant  represented  himself  as  agent,  then  it  is  per- 
sonally obligatory  on  the  defendant  alone,  and  it  is  incumbent  on  the 
defendant,  not  on  the  plaintiffs,  to  aver  and  prove  the  authorization, 
if  any,  by  which  the  defendant  contracted  for  Raymond  and  Hitch- 
cock, or  for  the  company.  Whether  he  had  such  authority  is  a  fact 
for  which  the  defendant  alone  is  responsible,  and  he  has  no  right  to 
call  on  the  plaintiffs  to  prove  either  the  negative  or  affirmative.  The 
plea  is  therefore  bad,  because  it  contains  no  such  averment  upon 
which  the  plaintiffs  might  have  taken  issue.  If  the  defendant  is  not 
personally  bound,  he  ought  by  his  plea  to  have  shown  that  upon  this 
covenant  the  plaintiffs  had  a  right  of  action  against  some  other  per- 
son. 

That  the  plaintiffs  were  stockholders  or  partners  in  this  manufac- 
turing company  affords  no  ground  to  defeat  their  claim  under  this 
covenant.    The  plaintiffs  are  entitled  to  judgment  on  the  demurrer. 

Judgment  for  the  plaintiffs. 


DUSENBURY  v.  ELLIS. 
1802.     Supreme  Court  of  New  York.     3  Johns.  Cas.  70. 

In  error  on  certiorari  from  a  justice's  court.  Ellis  sued  Dusen- 
bury,  before  a  justice,  on  a  promissor}^  note,  for  19  dollars  and  yy 
cents,  given  by  Dusenbury  to  Levi  Fish  or  order,  and  by  him  en- 
dorsed, in  blank.  The  note  was  signed  by  the  defendant  below,  in 
this  manner:  "For  Peter  Sharpe,  Gabriel  Dusenbury,  attorney." 
The  note  was,  otherwise,  in  the  usual  form,  and  began  with  the 
words  "I  promise,"  etc.  It  was  contended  that  the  defendant  was 
not  liable,  having  signed  the  note  merely  as  attorney  for  Sharpe, 
and  he  produced  his  letter  of  attorney,  which,  however,  appeared 
to  be  nothing  more  than  the  power  to  collect  debts,  and  contained 
no  authority  to  give  notes,  or  bind  the  principal,  in  that  way.  The 
justice  gave  judgment  for  the  plaintiff  below. 

Per  Curiam. — There  can  be  no  question  but  that  Dusenbury 
signed  the  note,  without  having  any  authority  for  that  purpose. 
The  letter  of  attorney  could  not  bind  the  principal  beyond  the  plain 
import  of  it.  An  authority  to  collect  debts  cannot,  by  any  possible 
construction,  be  an  authority  to  give  notes. 


394  LIABILITY    TO    THIRD    PARTY. 

The  only  question  then  is,  whether  Dusenbury  was  not  personally 
responsible,  as  for  his  own  note.  On  this  point  we  are  of  opinion 
that,  if  a  person,  under  pretense  of  authority  from  another,  executes 
a  note  in  his  name,  he  is  bound ;  and  the  name  of  the  person  for 
whom  he  assumed  to  act  will  be  rejected  as  surplusage.  The  party 
who  accepts  of  a  note,  under  such  mistake  or  imposition,  ought  to 
have  the  same  remedy  against  the  attorney  who  imposes  on  him  as 
he  would  have  had  against  the  pretended  principal,  if  he  had  been 
really  bound. 

Judgment  of  affirmance.^ 


TIMKEN  V.  TALLMADGE. 

1891.     Supreme  Court  of  New  Jersey.     54  N.  J.  L.  117. 

Reed,  J- — The  only  question  of  law  which  is  discoverable  in  the 
record  of  the  proceedings  in  the  district  court  is  this :  Does  an  action 
lie  against  the  defendant  personally,  assuming  that  the  conditions 
enjoined  in  the  paper  were  performed?  That  the  paper  was  ob- 
tained without  fraud,  and  that  the  conditions  were  executed,  we 
must  assume,  in  the  face  of  the  findings  of  the  trial  court. 

But  the  prosecutor  insists  that  the  defendant  below  entered  into 
the  engagement  as  a  public  officer,  and  that  no  personal  responsibil- 
ity for  the  payment  of  the  amount  named  rests  upon  him.  If  the 
engagement  into  which  the  defendant  entered  had  been  within  the 
scope  of  his  official  authority,  I  think  that  this  view  would  be  sound. 

There  is  a  well-defined  distinction  between  the  contracts  entered 
by  private  agents  and  those  contracts  made  by  public  agents  in  re- 
spect to  their  personal  responsibility. 

Where  a  private  agent  does  not  attempt  to  bind  his  principal,  and 
in  terms  imposes  the  obligation  upon  himself,  the  rule  is  he  incurs 
by  such  act  a  personal  liability,  although  he  describes  himself  as 
agent.  Dayton  v.  Warne,  43  N.  J.  Law  659.  But  this  is  not  the 
rule  where  the  obligation  is  the  same,  but  the  agent  is  acting  within 
the  scope  of  his  authority  as  a  public  agent.  Knight  v.  Clark,  48  N. 
J.  Law  22,  2  Atl.  780 ;  Woodbridge  v.  Hall,  47  N.  J.  Law  388,  i  Atl. 
492. 

A  public  agent,  whenever  the  contract  is  within  the  limits  of  the 
officer's  power  and  duty,  is  not  personally  bound,  unless  a  contrary 

'"The  authority  of  these  cases  (White  v.  Skinner  and  Dusenbury  v.  Ellis, 
inter  alia)  has  been  somewhat  shaken  by  the  remarks  of  the  judges  who  de- 
livered opinions  in  the  case  of  Walker  v.  The  Bank  of  the  State  of  New  York 
(5  Seld.  582)  ;  and  in  England,  as  well  as  in  several  of  the  United  States,  the 
principle  upon  which  they  rest,  if  they  are  supposed  to  present  the  only  ground 
of  liability  of  the  agent,  has  been  substantially  repudiated."  Selden,  J.,  in 
White  V.  Madison,  26  N.  Y.  117,  123. 


395 

intention  is  plainly  indicated  by  th  the 

'on.     The  presumption  is  oi'f:;..i 

3nd  that  the  engagt-rme;.: 
'Ally.    \'-'  . e  V.  Hall,  supra. 

The  p;-    .  cd  by  the  mayor  d.c.  ;nis 

presumption. 

The  service  for  which  the  mone;. 
ice.    The  fugitive  was  a  municipal 

The  promise  was  made  by  the  .  <:  „,  .i 

mayor.    The  money  was  to  be  pai  n's  office. 

Therefore,  it  it  had  appe'are  ' 
,fficial  power  and  duty,  the  - 

,.nv  of  its  de]:>artments  by  such  a  .  no  one  wuisid  doubt  :    : 

an  instant  that  the  action  would  Ik    ^        -  ^^^  ^^^Y  alone. 

It,  however,  conclusively  appeared  that  no  such  autb 

•  'red.     In  fact  the  mayor  was  without  the  least  .^-..n. 
r  to  act  for  any  public  body  in  the  matter. 

-\ow,  a  rule  applicable  to  private  agents  is  that,  if  an  ageni  lc. 
'^ra'-ts,  although  in  his  character  of  agent,  with  no  responsible  prin- 
to  whom  resort  may  be'  hsd.  the  law  presumes  tliat  he  con- 

-  iDon  his  personal  responsibility,  and  intends  to  bind  himself, 

'Ids  him ;  for  in  no  other  way  could  the  contract  have  any 
T\r.-,ih  -    ''^'^'^'ierly,  36  N.  J.  Law  250-255:  t^^^*->    Paley 

evner  rnis  aocii  int  applies  to  public  agents  has  been  aeaied  by 
;  courts  and  doubted  by  others,  except  when  there  existed  some 
'\  arranty  of  authority  or  '  :t  on  the  part  of 

-.     The  cases  are  collect-  ni's  usef'^l  bnr.k 

officers,  §§  809-815. 
.  a:.eless  to  examine  these  auv    ,      /  ..he  rule  appi- 
agents  is  extended  to  public  agents  in  its  full  ' 
'.  in  the  case  of  Bay  v.  Co-'  J-  Law  :    ■ 

;  that  case  an  overseer  of  had  d; 

d  a  pauper.    The  charges  v  '    agaiusi:  tlu 

•f  action  was  brought  against  : 

chargeable,  in  which  action  ,  .. .  ■.>> 

ground  that  the  overseer  was  not  :mV  Awn- 

'jother  action  was  then  brou  linst  the 

'  )nally,  and  a  verdict 

.   it  W3?  "fo'ed  that  th  bl'c 

im  had  r 
'.•vS  this  r 
for  the  pnv>ioian's  bill.     The  court  ,  n  agent, 

r  public  or  private,  exceeds  his  author..,  ontract, 

-  personally  li  I'-'c  for  its  performance,  fc-r  i  esteem 


394 


I.IAP.II. 


ly  question  then 
le,  as  for  hi- 
person,  undt 

a  note  in  his  name,  i 

whom  he  assumed  t( . 

Avho  accepts  of  a 

have  the  same  re- 

he  would  have  h 

really  bound. 
Tudsrment  <  • 


iS  not  personally 

•"  opinion 

xecutes 

the  uai  son  for 

>]  a<>  sui,  --  le  party 

■     ...■  or  imp'  •tg-ht  to 

!.u._.riir\-  '■  ■'  '   •---,-•.-  uii  him  as 


:tended 


.it'  lie  had  been 


ALLMADGE. 


54N.  J.  L.  117. 


by  p 
spect  to  I 

Where  .  , 
in  terms  imp 
by  such  act  a  ; 
agent.     Dayton 
rule  where  th-' 
tV-.e  '>cor>e  of  < 


A  puDlic  agent, 
^fl^'-er'b  power  ano 


{ :,  Scid.  -.62)  ,  and  in  E' 
princioi'j  upon  which  tht 
of  liability  of  the 
White  V.  Madison,  .. 


:  -ji  law  whi^^i  ;<  '^1'scoverable  in  the 
.i  district  cor  •   Does  an  action 

>onaIly,  assunu/n^    ii.it  the  conditions 
■erformed?     That  the  paper  was  ob- 
it the  conditions  were  executed,  we 
.  findings  of  the  trial  court. 
ii.at  the  defendant  below  entered  into 
>     .\  and  that  no  personal  responsibil- 
'  named  rests  upon  him.     If  the 
niidant  entered  had  been  within  the 
;'  think  that  this  view  would  be  sound. 
h>n  between  the  contracts  entered 
Acts  made  by  public  agents  in  re- 

■  'f-y- 

•  attempt  to  bind  his  principal,  and 
.ijon  himself,  the  rule  is  he  incurs 
Jthough  he  describes  himself  as 
|.  Law  659.  But  this  is  not  the 
fue,  but  the  agent  is  acting  within 
ic  aq-ent.  Knight  v.  Clark,  48  N. 
N.  J.  Law  388,  I  Atl. 

ntract  is  within  the  limits  of  the 
rsonally  bound,  unless  a  contrary 

re  V.  Skinner  and  Dusenbury  v.'  Ellis. 

V  the  remarks  of  the  judges  who  de- 

The  Bank  of  the  State  of  New  York 

is  in  several  of  the  United  States,  the 

-  supposed  to  present  the  only  ground 

rially.  repudiated."    Selden,  J. 


UNAUTHORIZED    CONTRACTS.  395 

intention  is  plainly  indicated  by  the  terms  and  circumstances  of  the 
transaction.  The  presumption  is  that  he  is  acting  in  his  official 
capacity,  and  that  the  eng-agement  is  meant  to  be  with  the  public 
only.    Woodbridge  v.  Hall,  supra. 

The  paper  signed  by  the  mayor  does  not  rebut,  but  fortifies,  this 
presumption. 

The  service  for  which  the  money  was  to  be  paid  was  a  public  serv- 
ice.   The  fugitive  was  a  municipal  officer. 

The  promise  was  made  by  the  defendant  over  his  official  title  as 
mayor.    The  money  was  to  be  paid  at  the  mayor's  office. 

Therefore,  if  it  had  appeared  that  the  mayor  had,  as  a  part  of  his 
official  power  and  duty,  the  authority  to  bind  the  municipality  or 
anv  of  its  departments  by  such  a  promise,  no  one  would  doubt  for 
an  instant  that  the  action  would  lie  against  the  city  alone. 

It,  however,  conclusively  appeared  that  no  such  authority  or  duty 
existed.  In  fact  the  mayor  was  without  the  least  semblance  of 
power  to  act  for  any  public  body  in  the  matter. 

Now,  a  rule  applicable  to  private  agents  is  that,  if  an  agent  con- 
tracts, although  in  his  character  of  agent,  with  no  responsible  prin- 
cipal to  whom  resort  may  be  had,  the  law  presumes  that  he  con- 
tracts upon  his  personal  responsibility,  and  intends  to  bind  himself, 
and  so  holds  him  ;  for  in  no  other  way  could  the  contract  have  any 
validity.    Booth  v.  Wonderly,  36  N.  J.  Law  250-255  ;  Dun.  Paley 

Ag.  374- 

Whether  this  doctrine  applies  to  public  agents  has  been  denied  by 
some  courts  and  doubted  by  others,  except  when  there  existed  some 
express  warranty  of  authority  or  fraudulent  conduct  on  the  part  of 
the  agent.  The  cases  are  collected  in  Mr.  Mechem's  useful  book 
on  public  officers,  §§  809-815. 

It  is  useless  to  examine  these  cases,  for  the  rule  applicable  to  pri- 
vate agents  is  extended  to  public  agents  in  its  full  vigor  by  this 
court  in  the  case  of  Bay  v.  Cook,  22  N.  J.  Law  343. 

In  that  case  an  overseer  of  the  poor  had  directed  a  physician  to 
attend  a  pauper.  The  charges  were  made  against  the  overseer  as 
such. 

An  action  was  brought  against  the  township  to  which  the  pauper 
was  chargeable,  in  which  action  the  physician  was  non-suited  on 
the  ground  that  the  overseer  was  not  authorized  to  bind  the  town- 
ship. 

Another  action  was  then  brought  by  the  physician  against  the 
overseer  personally,  and  a  verdict  was  returned  against  him. 

Upon  error  it  was  urged  that  the  overseer  was  acting  as  a  public 
agent,  and  that  the  physician  had  recognized  him  as  such.  This  was 
not  denied,  but  nevertheless  this  court  held  the  overseer  personally 
liable  for  the  physician's  bill.  The  court  remarked :  "If  an  agent, 
either  public  or  private,  exceeds  his  authority  in  making  a  contract, 
he  is  personally  liable  for  its  performance,  for  the  law  will  esteem 


396  LIABILITY    TO    THIRD    PARTY. 

him  as  acting  in  his  individual  capacity,  rather  than  suffer  the  con- 
tract to  fall." 

Upon  the  rule  laid  down  in  that  case  the  judgment  brought  up  is 
affirmed.^ 


NOYES  ET  AL.  V.  LORING. 
1867.     Supreme  Judicial  Court  of  Maine.     55  Me.  408. 

Indebitatus  assumpsit  on  account  annexed,  as  follows:  "1865, 
Oct.  17.  To  advertising  taxes,  2^  sq.,  18  w.  $14.37."  The  writ 
contained  also  a  count  for  money  had  and  received,  and  quantum 
meruit  for  services,  etc. 

At  the  trial  at  nisi  prius,  it  appeared  that  one  Perkins  was  duly 
elected  treasurer  and  collector  of  Saco  for  the  year  1865 ;  that,  at 
the  annual  meeting,  the  town  voted  an  abatement  to  those  who 
should  voluntarily  pay  their  taxes  on  or  before  certain  specified 
days,  and  that  notifications  of  this  vote  and  of  the  time  when  the 
tax  bills  were  committed  to  him,  were  duly  posted  up  in  post  bills, 
by  the  treasurer,  the  expense  of  printing  and  posting  which  was 
paid  by  orders  drawn  upon  the  selectmen. 

It  also  appeared  that,  in  October,  1865,  after  the  expiration  of  the 
time  for  the  allowance  of  such  abatements,  Perkins  appointed  the 
defendant  assistant  collector ;  that  the  defendant  was  duly  qualified, 
and  he  gave  bond  for  the  faithful  discharge  of  his  duties ;  whereupon 
the  tax  bills  of  the  unpaid  taxes,  amounting  to  between  $17,000  and 
$18,000,  were  committed  to  him.  The  defendant  then  prepared  a 
notice  of  his  appointment,  with  a  request  that  all  who  had  not  paid 
their  taxes  would  forthwith  make  payment  thereof  at  his  office; 
and  requested  the  plaintiffs  to  print  a  certain  number  of  copies 
thereof  in  the  form  of  post  bills,  and  to  insert  the  same  as  an  ad- 
vertisement in  the  newspaper  published  by  them  in  Saco  till  other- 
wise ordered,  and  to  charge  it  to  the  town.  And  the  plaintiffs  did 
as  requested. 

In  March  or  April  following  the  plaintiffs  presented  a  bill  for 
printing  done  for  the  town,  including  the  charges  for  the  printing 
ordered  by  the  defendant,  to  the  selectmen  of  Saco ;  but  they  re- 
fused to  allow  the  items  ordered  by  the  defendant,  denying  his  au- 
thority to  order  the  work  done  at  the  town's  expense.  Subsequently, 
however,  they  drew  an  order  for  the  post  bills,  but  refused  to  allow 
the  charge  for  publishing  the  advertisement,  although  it  was  the 
usual  price.    The  defendant  also  refused  to  pay  the  same. 

It  also  appeared  that,  when  the  printing  was  ordered  by  the  de- 

^  Accord:  Andrews  v.  Tedford,  27  la-  3i4;  Terwilliger  v.  Murphy,  104 
Ind.  32. 


s  charged  to  the  town.  ed  the 

.1}  that  the  action  was  up:  'on 

v-ontract  nm^t  be  proved,  ;^- 

cs  ;  that  t\\  o  kinds  of  prov 
,i.e  is  a  special  promise  iu 
•e  special  promise  is  shown   ■ 

;fically  fix  the  terms  and  cr^-''''  ■■■ 

omise  is  a  promise  impL' 
'"•s  proved  in  a  case  ^^  ■ 

I  of  such  acts  and  cir. 
:  liiOac  promises  necessary  u 
That,  where  there  is  a  special 

es,  the  law  does  not  imply  promises  mconsistenc  with  i 
.r-cK']  promise  excludes  the  idea  of  an  implied  one.     i:;. 

'.':  seen  fit  to  mal<;e  their  own  terms  and  engagements,  ; 
them  upon  those  terms. 

it,  in  this  case,  the  contract  being  an  oral  contract,  if  any  wer<: 
it  is  a  question  for  the  jury  to  find  what  that  contract  was. 

if  there  was  a  special  contract  to  do  the  work  and  look  to  the 
>wii  for  pay,  the  parties,  being  legally  competent  to  make  a  con-. 
;    must  abide  by  the  terms  of  it. 

t,  if  there  was  a  special  contract  in  this  case,  the  fact  that  the 

es  rendered  may  have  operated  to  the  benefit  of  the  defendant 

ot  relieve  the  parties  from  the  legal  effect  of  their  special  con- 
They  were  competent  to  make  it  as  they  did,  and  mu 

•  the  defendant  repres'  :'  as  an  a 

I'ized  to  contract  for  iid  so  C' 

authorized,  he  might  be  liable*  m  another  f^  • 
aintiffs,  but  not  in  this  ac^^'^'^  ■'■'■■^  """  damage 
o  the  plaintiffs. 

;  verdict  was  for  the  del  aa  the  f  ' 

•ns. 

rs,  J. — The  remedy 
self  as  the  agent  of     . 
to  make  a  contract  binding  i  ■::■. 

-    .ise  for  deceit,  and  not  an  ac  ni- 

ract.     Long  v.  Coburn,  ,ii  Mass  .lss. 

.:6i ;  Jefts  v.  York,  4  Cush.  371  ;  Aio  )    .  .Its 

..  York,  ID  Cush.  392;  Smout  v.  Iberv,  10  .en-- 

•       1,  13  Ad.  &E1.  (N.'S.) 
is  not  a  failure  to  keep  ari 
cntation.     Why  then  should  ai- 

;^  an  action  of  assumpsit?     :  ■■^^ 

lakes  to  u:;ike  a  contract  for  another,  i 
^'"   '  '■■  ■  contract  ^'   ^'^--^   '■-'•'  -e   ij'^y\,ii'i:>l 


.  >  acting  in  V 
act  to  fall." 
Upon  thr  -' 
affirmed.^ 


•itTcr  the  c-i 
■ught  up 


iNDElil 

Oct.   [ 

iV. 


$18,000,  v 
notice  of  1 
their  taxe- 
and  reque 
thereof  in 
vertisernent  m 
wise  ordered,    , 
as  requested. 

In  March  or  ,^],'  1 
prnitijig  done  for  the 
ordered  by  the  clef- 
fused  to  allow  the 
tiior-i.v  to  order  & 
however,  they  dre 
the  charge  for  p; 
usual  price.    The  r 

It  also  appeared 


iq  accoun!: 
■.xes,  2}: 


5  Me.  408. 

as  follows:  '"iS'.-,, 
$14.37."  The  writ 
ived,  and  quanti'"- 


one  Perkins  was  duly 

he  year  1865;  that,  at 

e  lown  voted  an  auarcnient  to  those  who 

their  taxes  on  or  before  certain  specified 

of  this  vote  and  of  the  time  when  the 

.  io  him,  were  duly  posted  up  in  post  bills, 

xpense  of  printing  and  posting  which  was 

;'  the  selectmen. 

Ictober,  1865,  after  the  expiration  of  the 

such  ab:  Perkins  appointed  the 

r ;  that  li  iant  was  duly  qualified, 

ithful  discharge  of  his  duties;  whereupon 

ixes,  amounting  to  between  $17,000  and 

•  him.     The  defendant  then  prepared  a 

■  '    a  request  that  all  who  had  not  pr-  ' 

lake  payment  thereof  at  his  ofFi  - 

:■  print  a  certain  number  of  copici 

.is,  and  to  insert,  the  same  as  an  ad- 

■tr.  published  by  them  in  Saco  till  otl. 

'  i;  r,>  the  (r.wn      And  the  plaintiffs  \ 

,u    LiiT  |;  .liiLiii-  presented  a  bill  U". 
.:luding  the  charges  for  the  printing 
Saco ;  but  they 
ni,  denying  his 
e\pensc.    Subsequeii' 
tils,  but  refused  to  all 
advertisement,  although  it  was  ' 
'  "fused  to  pay  the  same. 

irinting  was  ordered  by  the 


erwilliger  y.    Murphy, 


UNAUTHORIZED    CONTRACTS.  397 

fendant,  he  did  not  intimate  in  anywise  that  he  would  pay  therefor. 
It  was  charged  to  the  town.  The  presiding  judge  instructed  the 
jury  that  the  action  was  upon  a  contract.  That  to  support  the  action 
a  contract  must  be  proved.  That  a  contract  consists  of  mutual  prom- 
ises ;  that  two  kinds  of  promises  are  recognized  in  proof  of  contracts, 
one  is  a  special  promise  and  the  other  an  implied  promise.  That 
the  special  promise  is  shown  where  the  parties  definitely  and  spe- 
cifically fix  the  terms  and  conditions  of  their  contract.  The  implied 
promise  is  a  promise  implied  and  arising  from  the  acts  and  circum- 
stances proved  in  a  case  where  no  special  promise  is  proved.  They 
consist  of  such  acts  and  circumstances  as  raise  in  law  an  implication 
of  those  promises  necessary  to  complete  a  contract. 

That,  where  there  is  a  special  contract  founded  upon  special  prom- 
ises, the  law  does  not  imply  promises  inconsistent  with  those.  The 
special  promise  excludes  the  idea  of  an  implied  one.  The  parties 
having  seen  fit  to  make  their  own  terms  and  engagements,  the  law 
leaves  them  upon  those  terms. 

That,  in  this  case,  the  contract  being  an  oral  contract,  if  any  were 
made,  it  is  a  question  for  the  jury  to  find  what  that  contract  was. 
That,  if  there  was  a  special  contract  to  do  the  work  and  look  to  the 
town  for  pay,  the  parties,  being  legally  competent  to  make  a  con- 
tract, must  abide  by  the  terms  of  it. 

That,  if  there  was  a  special  contract  in  this  case,  the  fact  that  the 
services  rendered  may  have  operated  to  the  benefit  of  the  defendant 
does  not  relieve  the  parties  from  the  legal  effect  of  their  special  con- 
tract. They  were  competent  to  make  it  as  they  did,  and  must  abide 
by  it. 

That,  if  the  defendant  represented  himself  as  an  agent  of  the  town 
and  authorized  to  contract  for  them,  and  did  so  contract,  and  was 
not  so  authorized,  he  might  be  liable  in  another  form  of  action  to 
the  plaintiffs,  but  not  in  this  action,  for  any  damage  resulting  there- 
from to  the  plaintiffs. 

The  verdict  was  for  the  defendant,  and  the  plaintiffs  alleged  ex- 
ceptions. 

Walton,  J. — The  remedy  against  one  who  fraudulently  repre- 
sents himself  as  the  agent  of  another,  and  in  that  capacity  under- 
takes to  make  a  contract  binding  upon  his  principal,  is  an  action  on 
the  case  for  deceit,  and  not  an  action  of  assumpsit  upon  the  con- 
tract. Long  V.  Coburn,  ii  Mass.  97;  Ballou  v.  Talbot,  16  Mass. 
461 ;  Jefts  V.  York,  4  Cush.  371 ;  Abbey  v.  Chase,  6  Cush.  54 ;  Jefts 
V.  York,  10  Cush.  392 ;  Smout  v.  Ibery,  10  Mees.  &  Welsh,  i ;  Jen- 
kins V.  Hutchinson,  13  Ad.  &  El.  (N.  S.)  744.  The  gist  of  the  ac- 
tion in  such  cases  is  not  a  failure  to  keep  and  perform  a  promise,  but 
a  false  representation.  Why  then  should  the  injured  party  be  al- 
lowed to  bring  an  action  of  assumpsit?  If  one  ^^without  authority 
undertakes  to  make  a  contract  for  another,  the  contract  is  necessarily 
void.     It  is  not  the  contract  of  the  principal,  for  the  pretended 


398  LIABILITY    TO    THIRD    PARTY. 

agent  had  no  power  to  bind  him.  It  is  not  the  contract  of  the 
agent,  for  in  making  it  he  did  not  attempt  to  bind  himself.  How 
then  can  such  a  contract  be  the  basis  of  a  suit?  Very  clearly  it 
cannot. 

Nor  should  the  injured  party  be  allowed  to  waive  the  special  con- 
tract, waive  the  tort,  and  recover  upon  an  implied  assumpsit,  for 
such  a  form  of  declaring  gives  the  defendant  no  notice  of  the  real 
cause  of  complaint  against  him.  Take,  for  instance,  the  declaration 
in  this  case.  It  contains  nothing  but  general  indebitatus  assumpsit 
counts  on  an  account  annexed.  Who,  on  reading  such  a  writ,  would 
ever  suppose  that  the  real  ground  of  complaint  against  the  defendant 
is  that  he  undertook  to  make  a  contract  for  the  town  without  au- 
thority ? 

It  may  not,  indeed,  seem  unjust  that  the  party  who  has  undertaken 
to  contract  for  another  without  authority  should  be  held  to  perform 
the  contract  himself.  In  fact  the  law  seems  to  have  been  so  held 
in  an  early  case  in  New  York.  (Dusenberry  v.  Ellis,  3  Johns.  Cas. 
70.)  It  was  there  held  that  one  who  without  authority  signed  a 
promissory  note  as  attorney  for  another  was  personally  bound  to 
pay  it.  But  the  inconsistency  of  such  a  doctrine,  to  use  no  stronger 
term,  will  be  apparent  by  supposing  that  instead  of  a  promise  to 
pay  money,  the  pretended  agent  had  signed  a  promise  that  his  prin- 
cipal should  marry  the  plaintiff  within  a  given  time,  or  do  some 
other  act  which  it  was  perfectly  competent  for  the  principal  to  per- 
form, but  which  the  agent  could  not.  What  would  be  thought  of  a 
declaration  charging  the  pretended  agent  as  a  principal  in  such  a 
case? 

It  is  undoubtedly  true  that  if  a  person  falsely  represents  that  he 
possesses  an  authority  which  he  does  not  possess,  and  another  is  in- 
jured by  such  misrepresentation,  he  is  liable,  but  the  remedy  should 
be  sought  in  a  proper  form  of  action.  The  plaintiff  should  not  be 
allowed  to  allege  neglect  to  keep  and  perform  a  promise,  and  then 
recover  for  a  false  and  fraudulent  allegation  of  authority. 

But  the  plaintiffs  claim  that,  inasmuch  as  the  labor  which  they 
performed  was  beneficial  to  the  defendant,  he  ought  to  pay  for  it; 
and  that  they  may  waive  the  tort,  if  any,  which  the  defendant  com- 
mitted, and  recover  the  value  of  their  services  in  an  action  of  as- 
sumpsit. No  case  has  been  cited  in  which  such  a  course  has  been 
allowed ;  and,  in  Jones  v.  Hoar,  5  Pick.  285,  the  court  says  that  the 
doctrine,  that  the  injured  party  may  waive  the  tort  and  bring  as- 
sumpsit, is  allowed  only  to  this  extent,  that  one  whose  goods  have 
been  taken  from  him  or  detained  unlawfully,  whereby  he  has  a  right 
to  an  action  of  trespass  or  trover,  may,  if  the  wrongdoer  sell  the 
goods  and  receive  the  money,  waive  the  tort,  affirm  the  sale,  and 
have  an  action  for  money  had  and  received  for  the  proceeds. 

So,  if  one  acting  as  the  agent  of  another  without  authority  re- 
ceives money,  and  has  not  paid  it  over  to  the  principal,  it  may  be  re- 


an  action  for  money  lud  atiU  rccc; 

jily  in  favo!  i  for  money  hac'  ived, 

,.  :....  jeen  likened  u.  .       .   ...  :o  a  bill  in  equity,  ri't 

elaxed  that  the  evidence  must  correspond  \vith  the  o 
a^iid  be  confined  to  the  matter         -      ~    .-.,,;  .^.:.,  ..v;^..,..:..^ 
a  party  is  allowed  to  aver  a 

dcj? ''» tire  from  prirc"  '  ..  plcaamg,  o«^-. 

to  ,\:  '.xtended  to  nr 

Our  conclusion  therej 
to  which  exception  is  spe,  ,  . 

represented  himself  as  an  agent  ot  the  town, 
for  them,  and  did  so  contract,  and  was  not  sc.  ci. 
be  liable  in  another  form  of  action,  but  not  in  this. 

'^"''■'   other  rulings  of  the  presiding  ju'1  :  ica  i:. 

.:..  .>n,  seems  to  require  no  further  n  ..  tp  sa^ 

in  accordance  with  well-settled  principles  of  el 
,  so  far  as  we  are  able  to  judge  from  the  brief  rep  . 
dcnce  contained  in  the  bill  of  exceptions,  were  pertinent  to  the  issue 


FREESE  V.  Ckak  t . 

1868.    Supreme  Court  of  Indiana.    29  Ind.  524. 

LLiOTT,  J. — Freese  sued  Crary  on  the  following 
ring,  viz. : 

By  this  aierreement,  Frank  Frefse  has  this  <' 
and  tv" 
•t  in  the 
n,  of  one  hundred  and 
reon.    All  the  aforesaid  ; 
e  of  Indiana.    Deeds  to  V 
^igned)         ^'''r'    ' 

l-«;iaycite,  June  9,  liiOO. 


Rusaci,  '4  !■<.  Car.  :di7. 


L[. 


agent  had 

d  him. 

:  jntract  of  the 

agent,  for  la  r 

elf.     How 

^hrn  can  such 

clearly  it 

..„:"shoii.1'.1 

.rtvbe  .^lV,v.- 

.ve  the  special  con- 

tract,  wai 

lied  assumpsit,  for 

such  a  ^■" 

notice  of  the  real 

cause 

!ce,  the  declaration 

in    ' 

lebitatus  assumpsit 

c<. .- 

such  a  writ,  would 

e  > 

unst  the  defendant 

is 

town  without  au- 

th 

j .-  . .   .vho  has  undertaken 

to 

should  be  held  to  perform 

fi 

■  i   iact   1,' 

•■''-■  to  have  been  so  held 

York. 

V.  Ellis,  3  Johns.  Cas. 

1  that  ont 

authority  signed  a 

rney  for  a*) 

rsonally  bound  to 

tency  of  such  a 

to  use  no  stronger 

by  supposing  th 

d  of  a  promise  to 

possesses  .'.. 
bt 
recover  io- 


x\.  tney  Oj 

ruirl    Ti  \  : 


:,  that  ' 
iu^v^it,  is  alio- 
been  <'.T.k'='n  frop 

have  an  action  for  raont 
So,  if  one  acting  as 
'.  eives  money,  and  has  v 


:<  ;;    had  signed  a  promise  that  his  prin-j 
iM-iiI  within  a  given  time,  or  do  some 
:Ctly  competent  for  the  principal  to  per- 
'  '  not.    What  would  be  thought  of  a, 
'  led  agent  as  a  principal  in  such  a  i 

it  if  a  person  falsely  represents  that  hej 
(  he  does  not  possess,  and  another  is  in- 
■'•>p,  he  is  Uable,  but  the  remedy  sliouldj 
action.    The  plaintiff  should  not  bej 
-^  '""^  :^erform  a  promise,  and  th< 
.tion  of  authority. 
'1  as  the  Ialx)r  which  the 
t,  he  ought  to  pay  for  it; 
'  -h  the  defendant  com-| 
e^   in  an  action  of  as-j 
a  course  has 
curt  says  that  th« 
:ort  and  brin^ 


u  liie  ii  the 

ti-.rt,  Ri  J,  and 

the  proceeds. 

.  -.1   without  authority 

the  principal,  it  may  be 


UNAUTHORIZED    CONTRACTS.  399 

covered  back  in  an  action  for  money  had  and  received.  Jefts  v. 
York,  lo  Ctish.  392. 

But  it  is  only  in  favor  of  the  action  for  money  had  and  received, 
which  has  been  Hkened  in  its  spirit  to  a  bill  in  equity,  that  the  rule 
is  relaxed  that  the  evidence  must  correspond  with  the  allegations, 
and  be  confined  to  the  matter  in  issue,  and  this  relaxation,  by  which 
a  party  is  allowed  to  aver  a  promise  and  recover  for  a  tort,  being  a 
departure  from  principle  and  the  correct  rules  of  pleading,  ought  not 
to  be  extended  to  new  cases. 

Our  conclusion  therefore  is,  that  the  ruling  of  the  presiding  judge, 
to  which  exception  is  specially  taken,  namely,  "that,  if  the  defendant 
represented  himself  as  an  agent  of  the  town,  authorized  to  contract 
for  them,  and  did  so  contract,  and  was  not  so  authorized,  he  might 
be  liable  in  another  form  of  action,  but  not  in  this,"  was  correct. 

The  other  rulings  of  the  presiding  judge,  reported  in  the  bill  of 
exception,  seems  to  require  no  further  notice  than  to  say  that  they 
are  in  accordance  with  well-settled  principles  of  elementary  law, 
and,  so  far  as  we  are  able  to  judge  from  the  brief  report  of  the  evi- 
dence contained  in  the  bill  of  exceptions,  were  pertinent  to  the  issue. 

Exceptions  overruled.     Judgment  on  the  verdict.^ 


FREESE  V,  CRARY, 
1868.     Supreme  Court  of  Indiana.     29  Ind.  524. 

Elliott,  J. — Freese  sued  Crary  on  the  following  instrument  in 
writing,  viz. : 

"By  this  agreement,  Frank  Freese  has  this  day  sold  to  Frank 
Crary  his  house  and  two  lots,  in  Orth's  addition  to  Lafayette,  and 
received  payment  in  the  following  property,  known  as  the  Hamlin 
farm,  of  one  hundred  and  sixty-one  acres,  with  all  improvements 
thereon.  All  the  aforesaid  property  is  in  Tippecanoe  county,  in  the 
state  of  Indiana.  Deeds  to  be  made  out  as  soon  as  possible, 
(Signed)         "F.  B.  Freese, 

"Mrs.  P,  Lowe,  per  G.  F,  Crary,  Agent. 

"Lafayette,  June  9,  1866." 

^Accord:  Lewis  v.  Nicholson,  L.  R.  18  Q.  B.  503;  Duncan  v.  Niles,  32  III. 
532;  Cole  V.  O'Brien,  34  Neb.  68;  Sheffield  v.  Ladue,  16  ]\Iinn.  346. 

"When  one  who  has  no  authority  to  act  as  another's  agent,  assumes  so  to 
act,  and  makes  either  a  deed  or  simple  contract,  in  the  name  of  the  other,  he 
is  not  personally  liable  on  the  covenants  in  the  deed,  or  on  the  promise  in 
the  simple  contract,  unless  it  contains  apt  words  to  bind  him  personally.  *  *  * 
The  only  remedy  against  him,  in  this  commonwealth,  is  an  action  on  the  case 
for  falsely  assuming  authority  to  act  as  agent."  Metcalf,  J.,  in  Abbey  v. 
Chase,  6  Cush.  (Mass.)  54,  56. 

See  Russell  v.  Koonce,  104  N.  Car.  237. 


400  LIABILITY    TO    THIRD    PARTY. 

The  complaint  is  in  two  paragraphs.  The  first,  after  stating  the 
substance  of  the  agreement,  alleges  that  on  or  about  the  22(1  day  of 
June,  1866,  the  plaintiff  and  his  wife  made,  signed  and  acknowl- 
edged a  deed  of  conveyance  to  said  defendant  for  the  house  and  two 
lots  in  Orth's  addition  to  the  city  of  Lafayette,  named  in  said 
agreement,  which  the  plaintiff  then  tendered  to  said  defendant,  and 
demanded  from  him  a  deed  of  said  Hamlin  farm,  which  he  failed 
and  refused  to  make,  to  the  plaintiff's  damage  five  thousand  dollars. 

The  second  paragraph  alleges  that  on  the  9th  of  June,  1866,  the 
defendant  falsely  and  fraudulently  represented  to  the  plaintiff  that 
he  was  the  agent  of  Mrs.  Peter  Lowe,  and  as  such  had  full  authority 
to  trade,  barter  and  sell  the  farm  owned  by  her,  known  as  the  Ham- 
lin farm,  in  said  county  of  Tippecanoe;  that  the  plaintiff,  confiding 
in  said  representations  and  believing  the  same  to  be  true,  was  in- 
duced thereby  to  enter  into  and  execute  the  written  agreement 
hereinbefore  set  out ;  that  in  accordance  with  the  terms  of  said  agree- 
ment the  plaintiff  made,  signed,  acknowledged  and  tendered  to  the 
defendant  a  deed  for  the  two  lots  named  in  said  agreement,  and 
demanded  of  him  a  deed  for  said  Hamlin  farm,  which  the  defendant 
did  not  and  could  not  execute ;  that  the  defendant  was  not  in  fact 
the  agent  of  Mrs.  Lowe,  and  had  no  authority  from  her  to  trade, 
barter  or  sell  said  farm,  which  he  well  knew  at  the  time  of  making 
said  contract ;  that  the  farm  was  of  the  value  of  ten  thousand  dol- 
lars, and  the  lots  of  the  value  of  only  five  thousand  dollars,  where- 
fore the  plaintiff  is  damaged  in  the  sum  of  five  thousand  dollars,  for 
which  he  demands  judgment. 

A  separate  demurrer  was  sustained  to  each  of  said  paragraphs, 
and  judgment  was  rendered  thereon  for  the  defendant.  To  these 
rulings  the  plaintiff  excepted,  and  appeals  to  this  court. 

The  first  paragraph  of  the  complaint  shows  no  cause  of  action 
against  Crary,  the  defendant.  The  agreement  upon  which  it  is 
based  is  not  signed  by  him  as  a  party  thereto,  but  by  "Mrs.  P.  Lowe, 
per  G.  F.  Crary,  agent."  Crary's  authority  to  act  in  the  matter  as 
the  agent  of  Mrs.  Lowe  is  not  questioned  in  that  paragraph.  And 
although  it  is  stated  in  the  body  of  the  instrument  that  the  plaintiff 
"Freese  has  this  day  sold  to  Frank  Crary  his  two  lots,"  etc.,  yet  as 
the  instrument  is  executed  in  the  name  of  Mrs.  Lowe,  by  Crary 
as  her  agent,  it  can  only  be  regarded  as  a  contract  between  the 
plaintiff  and  Mrs.  Lowe,  and  that  the  lots  were  contracted  to  Crary 
for  her,  and  as  her  agent.  The  deed  for  the  lots,  therefore,  should 
have  been  made  to  "Sirs.  Lowe  and  not  to  Crary,  and  upon  her  failure 
to  convey  the  Hamlin  farm,  she,  if  anyone,  and  not  Crary,  would 
be  liable  to  an  action. 

The  second  paragraph  presents  a  different  question.  It  alleges 
that  the  defendant  falsely  and  fraudulently  represented  that  he  was 
the  duly  authorized  agent  of  Mrs.  Lowe  to  make  the  contract  re- 
ferred to,  and  thereby  induced  the  plaintiff  to  enter  into  it,  when  in 


ary  of  the  ageu  ^ry  on 

264,   p.    261,    ^T  ■r;,l:es 

.ct,  as  the  <i 
;  j.i"om  the  prill.; 
he  will  be  person 
■ .  dealing  for 
.;",  then,  witl 
,cd  in  the  second  par 
ijle  for  any  damages  _ 

eged  false  representations  as  to  i  v,  still  '. 

'S  he  show  that  he  has  been  inj-.-v.-.    .uereby,   i 
which  he  is  legally  entitled  to  recover  damages  ?    1 
paid  any  part  of  the  cor>     '  1,  or  parted  vvi';: 

he  is  placed  in  any  worsi  a  than  he  would  1 

false  representations  had  not   iieen   made,   or   the  ci 
I  into.    True,  it  is  alleged  that  the  Hamlin  farm  is  wor  . 
usand  dollars,  while  the  lots  that  the  plaintiff  was  to  convey  in 
■hange  for  it,  are  only  of  the  val'/i'  ,-.f  =f;.:;.ooo,  and  judgment  is 
;med  for  the  difference;  but  thi-  s  wholly  inadmissible, 

ere  is  no  principle  of  law,  or  rule  'u  .images  applicable  to  such 
es,  to  sustain  it.  The  paragraph  onlv  shows  the  plaintiff  en- 
:d,  at  most,  to  nomi:  "        "      such  recovery,  merely, 

judgment  will  not  U  :>oe,  9  Tnd.  13. 

The  judgment  is  affirmed,  with  ccsi^ 


KROFGER  V.  ^TTr-AlPN, 


.  by    vv  .  C.  Kro, 
of  the  loss  susi 
fs  and  representa' 
he  trial,  before  ki...^.i..i . 
Til  4,  1874,  The  Birmir. 
policy  o^  ce  to  W 


k  of  n  e  and 


of  the 


NHASJ)    L  .\-:hr  , 


complaint 
■   mce  of  th:--  : 
june,  1866,  tl 
edged  a  deed  c 
lots  in  Orth' 
agreement    ^ 
dema.ndei.: 
and  refuse 
The  se'- 
defen' 
he  Wc 
to  tra 
lin  fa 


agh  it  is 

se  has  i\ 

:  strumer 

ao   rer  agent, 
•niairtif^  ?nH    ■ 

the  Ha 

,.v  ,..,,■•>.,  LO  an  act; 

The  second  pai 

that  the  defendanr 

tiie  dnlv  anthnri/ 

•Tig  the 

day  of 

■   ariii  aclcnowl- 

i'>«se  and  two 

od   in   said 

u:;endant,  and 

vhich  he  failed 

iousand  dollar?. 

June,  1866,  the 

::.'■'  >  die  plaintiff  that 

h  had  full  authority 

■vnown  as  the  Ham- 

uL.aM  ._,  .1...    mc  plaintiff,  confiding 

iieving  the  same  to  be  true,  was  in- 

ihe   written   agreement 

*be  terms  of  said  agree- 

ind  tendered  to  the 

■  .  rA  agreement,  and 
•  d  Haml  :h  tlie  defendant 
;  that  th=^  ..^..w.^.....  was  not  in  fact 
had  no  authority  from  her  to  trade, 
he  well  knew  at  the  time  of  making 

.  as  of  the  value  of  ten  thousand  dol- 

of  only  five  thousand  dollars,  where- 

the  sum  of  five  thousand  dollars,  for 

.1  stained  to  each  of  said  paragraphs, 

hereon  for  the  defendant.     To  these 

aid  appeals  to  this  court. 

omplaint  shows  no  cause  of  action 

The  agreement  upon   which  it  "is 

party  thereto,  but  by  "Mrs.  P.  Lowe, 

ority  to  act  in  the  matter  as 

,,  .         ned  in  that  paragraph.     And 

y  of  the  instrument  that  the  plaintiff 

■  '    (%•..,-,-  ;-:.  ty;Q  lots,"  etc.,  yet  as 

IS.  Lowe,  by  Crary 

n  tract  between  the 

contracted  to  Crary 

c  lots,  therefore,  should 

Liy,  and  uj)o;i  her  failure 

and  not  Crary,  would 

afferent  question.     It  alleges 
ntly  represented  that  he  was 
ve  to  make  the  contract  re- 
nter into  it,  ^  ' 


UNAUTHORIZED    CONTRACTS.  4OI 

truth,  as  the  defendant  well  knew,  he  was  not  the  agent  of  Mrs. 
Lowe,  and  had  no  authority  to  contract  in  her  name.  The  rule  as 
to  the  liability  of  the  agent,  in  such  cases,  is  stated  in  Story  on 
Agency,  §  264,  p.  261,  to  be,  "that  w^ienever  a  party  undertakes 
to  do  any  act,  as  the  agent  of  another,  if  he  does  not  possess  any 
authority  from  the  principal,  or  if  he  exceeds  the  authority  delegated 
to  him,  he  will  be  personally  responsible  therefor  to  the  person  with 
whom  he  is  dealing  for  or  on  account  of  his  principal." 

Assuming,  then,  without  discussing  the  question,  that  the  facts  al- 
leged in  the  second  paragraph  are  sufficient  to  make  the  defendant 
liable  for  any  damages  sustained  by  the  plaintiff,  by  reason  of  the 
alleged  false  representations  as  to  the  agency,  still  the  question  is, 
does  he  show  that  he  has  been  injured  thereby,  in  any  respect, 
for  which  he  is  legally  entitled  to  recover  damages  ?  It  is  not  shown 
that  he  paid  any  part  of  the  consideration,  or  parted  with  anything, 
or  that  he  is  placed  in  any  worse  condition  than  he  would  have  been 
if  the  false  representations  had  not  been  made,  or  the  contract 
entered  into.  True,  it  is  alleged  that  the  Hamlin  farm  is  worth  ten 
thousand  dollars,  while  the  lots  that  the  plaintiff  was  to  convey  in 
exchange  for  it,  are  only  of  the  value  of  $5,000,  and  judgment  is 
claimed  for  the  difference ;  but  this  claim  is  wholly  inadmissible. 
There  is  no  principle  of  law,  or  rule  of  damages  applicable  to  such 
cases,  to  sustain  it.  The  paragraph  only  shows  the  plaintiff  en- 
titled, at  most,  to  nominal  damages ;  but  for  such  recovery,  merely, 
the  judgment  will  not  be  reversed.    Tate  v.  Booe,  9  Ind.  13. 

The  judgment  is  affirmed,  with  costs. 


KROEGER  V.  PITCAIRN. 
1882.     Supreme  Court  of  Pennsylvania,     ioi  Pa.  St.  311. 

Case,  by  W.  C.  Kroeger  against  Albert  Pitcairn,  to  recover  the 
amount  of  the  loss  sustained  by  the  plaintiff  in  consequence  of  cer- 
tain acts  and  representations  made  by  defendant. 

On  the  trial,  before  Kirkpatrick,  J.,  the  following  facts  appeared : 
On  April  4,  1874,  The  Birmingham  Fire  Insurance  Company  is- 
sued a  policy  of  insurance  to  William  C.  Kroeger,  the  plaintiff,  "on 
his  stock  of  merchandise  and  fixtures  contained  in  the  two-story 
frame  store-room  and  cellar  and  in  frame  addition  attached,  situated 
at  Enon  Coal  Company's  works,  about  two  miles  west  of  Enon,  etc." 

One  of  the  printed  conditions  of  the  policy  was  in  these  words : 
"Or  if  the  assured  shall  keep  or  have  in  any  place  or  premises  where 
this  policy  may  apply,  petroleum,  naphtha,  benzine,  benzole,  gasoline, 
26 — Reinhard  Cases. 


402  LIABILITY    TO    THIRD    PARTY. 

benzine  varnish,  or  any  product  in  whole  or  in  part  of  either ;  or 
gunpowder,  fireworks,  nitro  glycerine,  phosphorus,  saltpetre,  nitra  of 
soda,  or  keep,  have,  or  use  camphene,  spirit  gas,  or  any  burning 
fluids  or  chemical  oils,  without  written  permission  in  this  policy,  then 
and  in  every  such  case  this  policy  shall  be  void." 

In  December,  1874,  the  premises  so  insured  were  totally  de- 
stroyed by  an  accidental  fire.  Due  notice  was  given  the  insurance 
company  and  preliminary  proofs  furnished,  but  the  company  refused 
to  pay.  An  action  was  then  brought  on  the  policy  and  a  judgment 
recovered  to  the  amount  of  twenty-one  hundred  dollars.  That  judg- 
ment this  court  reversed.  It  had  appeared  on  the  trial  that  a  barrel 
of  carbon  oil  had  been  kept  on  the  premises,  and  this  was  held  to 
be  an  avoidance  of  the  policy :  Birmingham  Fire  Ins.  Co.  v.  Kroeger, 
2  Norris  64. 

Albert  Pitcairn,  the  defendant,  was  the  insurance  company's 
agent  who  procured  the  issue  of  the  policy.  He  solicited  Kroeger  to 
allow  him  to  effect  the  insurance ;  went  upon  the  premises,  examined 
them,  furnished  the  description  of  them,  and  had  the  policy  under- 
written, bringing  it  with  his  own  hand  to  Kroeger,  from  whom  he 
collected  the  premium.  What  took  place  at  that  time  was  thus  testi- 
fied to  by  Kroeger :  "He  procured  the  policy  and  brought  it  to  me ; 
I  took  the  policy  and  read  it  over,  and  in  reading  it  over  I  happened 
to  come  across  the  fine  print  and  noticed  about  these  articles  that 
should  be  mentioned  in  the  policy — such  as  petroleum,  and  product 
of  petroleum,  and  gasoline,  and  other  things,  I  don't  know  what 
they  call  them,  all  strange  names  to  me,  and  I  told  him  about  pe- 
troleum ;  says  I,  "Albert,  you  know  there  is  a  little  petroleum  kept 
there  for  the  supplies  to  the  mines ;"  I  had  to  have  that  there  all  the 
time,  as  well  as  company  supplies.  He  said,  "Yes,  I  know  that." 
Says  I,  "It  says  here  it  should  be  mentioned  in  the  policy,"  and 
he  says,  "That  is  never  taken  notice  of,  only  where  it  is  kept  in  large 
quantities,  say  several  hundred  barrels ;  in  that  case,  where  it  is 
wholesale,  it  should  be  mentioned,  but  so  long  as  it  is  not  kept  more 
than  one  barrel  in  the  store  at  a  time,  it  is  considered  as  general 
merchandise  and  it  is  never  taken  notice  of  in  any  other  way." 

Cross-examination — "The  outcome  was  as  I  say;  I  objected  to 
the  policy  on  account  of  the  way  it  was  in  the  fine  print ;  it  seemed 
to  me  it  was  not  proper,  and  I  spoke  to  Mr.  Pitcairn  about  that 
and  he  said  that  the  policy  was  proper,  that  the  policies  were  all 
made  out  in  that  way ;  that  carbon  oil,  as  long  as  it  was  not  kept 
more  than  one  barrel  in  the  store,  was  considered  as  general  mer- 
chandise and  not  mentioned  in  the  policy,  but  where  it  was  kept  in 
large  quantity,  a  hundred  barrels  or  so,  then  it  must  be  so  mentioned, 
and  exception  made  of  it." 

It  was  conceded  that  Pitcairn,  all  through,  acted  as  the  agent  of 
the  insurance  company.  He  had  admitted  that  he  had  no  authority 
from  his  principal  to  represent  to  Kroeger  that  the  printed  condi- 


■J  petroieurn  was  noi  biiiaii.t  wnere  on  was  Kept 


ted  the 

■  ved 

:  that  tb; 

,.re- 

liried  to  by  1 

nd  that  the  iaitf . 

>.h  thereof;  .u 

r!,,^  defendant  h..  , 

7ningham  Fire  it 

Company  to  vs\<> 

that  the  prer- 

e  subsequenLi\    , 

'at  because  r 

policy  in  suit  r 

■  e  plaint 

iving  a  I'- 

recover  agamsi  vm 

i,ieieu'];uit  in  tl. 

-\-      wi+ll    irite"':  '■  !       !  f"  ■ 

vri    ■■■■A  .'■    .-.f   ^^:^-^. 

lant  then  presented  the  following  points: 
;.     To  sustain  this  action,  the  alleged  misreprese'i 
n!y  have  been  false,  but  it  must  be  shown  that  de: 

'  .e  false,  and  made  them  with  intent  to  defraud  the  piaintilf . 
d  pro  forma. 

That  the  alleged  representation  was  the  mere  opinion  of 
t  as  to  the  legal  effect  of  the  condition  in  the  policy  of  in- 
ind  the  condition  of  the  policy  being  open  to  the  observation 
untiff,  plaintiff  was  '  '  "  ■/  the  legal  effect  thereof, 
:')t,  for  such  opinion  .  recover  in  this  action. 

-n  defendant,  r  ■  --crent  of  the  Pir 
Lompany,  delivered  the  | 
epresentation  as  to  the  kfc.,  .,  .,  ...  .... 

.  and  made  them  in  accordance  with  ■ 

-ther  insurance  cc '"  '■     " 

rv  stores,  then  pi. 


ed  the  jury  l'^  ^r\r. 
ed  as  above.    '^. 
.  _  judgment  for  the  .      . 

verediciu.    Thereupon  the  plamtiff  i 
-  *•  the  action  ' '"    ■   •  -— '■•    -    "--' 
n  obstante  i' 


r.       it    i^    ■ 

jment  si. 
jury  w<  !o  return  a  ■ 

"'iir),  if  ii.^»  -It.-:'   o  .^ 

!i;r  |.    rit  presen- 
in  his  favor  irpiiP;.  a  ^•c!^l^' 


402                                        IIABILITY    TO    THIRD    I 

benzine  varnish,  or  any  pr-xiuct  in'wiiole 

or  in  part  of  either;  or 

gunpowder,  fire w.->'^-^;   nl^        -!vreri,i,-   ;'•,■,- 

ih(,i';,   -'iltoetre,  nitrn  oi 

soda,  or  keep,  ) 

:uiy  bur: 

fluids  or  chei!- 

^  policy.  Hi'- 11. 

and  in  everv 

In  De- 

tyJL  were   totally   de- 

stroyed 

lyiven  the  insurance 

company 

company  refr 

to  pay. 

_,  and  a  judgi.. 

recoverf; 

dollars.    That  judg- 

ment  ^^                                    '    '  .   : 

he  trial  that  a  barrel 

of  c. 

md  this  was  held  to 

be  ;                                                      ,  .L>U!v;ui^naill 

J  lie  Ins.  Co.  V.  Kroeger, 

there  f( 


quantities.   sa\ 
wholesale,  it  she. 
than  one  bar"'! 
merchandise 

Cross-ex. 
the  policy  oj. 
to  me  it  was  i. 
and  he  said  th.r 
made  out  in  the*. 
i  ,r,! .    '1vm  one  !■ 
aiad  hcl 
'ji .'  .jiantity,  a  : 
and  exception  ni; 

It  was  concede 
the  insurance  cui 
from  liis  princip 


1 

i 


rhe    insurance    company '.s 

He  solicited  Kroeger  to 

.'.'.  premises,  examined 

\j.A...... .....  .lad  the  poHcy  under- 

his  own  hand  to  Kroeger,  from  whom  he 

V  hat  took  place  at  that  time  was  thus  testi- 

nrocured  the  policy  and  brought  it  to  me; 

ver,  and  in  reading  it  over  I  happened 

and  noticed  about  these  articles  that 

'  jlicy — such  as  petroleum,  and  product 

:nd  other  things,  I  don't  know  what 

■  mes  to  me,  and  I  told  him  about  pe- 

■  know  there  is  a  little  petroleum  kept 
aines ;"  I  had  to  have  that  there  all  the 

r.-s.     He  said,  "Yes,  I  know  that." 
be  mentioned  in  the  policy,"  and 
notice  of,  only  where  it  is  kept  in  k  ■ 
cd  barrels ;  in  that  case,  where  : 
Tied,  but  so  long  as  it  is  not  kept  i; 
'  ■''    1  time,  it  is  considered  as  gc: 
notice  of  in  any  other  way." 
i  e  vins  as  I  say;  I  object; 
•i  in  the  fine  print;  it  se^. 
ircairn  about 
policies  wer 
-  it  was  not 
.  I  as  general  .  . 

where  it  was  kept  in  ^1 

.icted  as  the 
!.  he  had  no 
•jttger  that  the  printed  condi- 


J 


UNAUTHORIZED    CONTRACTS.  4O3 

tion  as  to  petroleum  was  not  binding,  except  where  oil  was  kept 
wholesale. 

Plaintiff  requested  the  court  to  charge  that  if  the  jury  believed 
from  the  evidence  that  the  defendant  made  to  the  plaintiff  the  repre- 
sentations testified  to  by  the  latter  and  that  the  latter  took  said  policy 
upon  the  faith  thereof;  and  that  the  defendant  had  no  authority 
from  the  Birmingham  Fire  Insurance  Company  to  make  such  rep- 
resentations ;  that  the  premises  insured  were  subsequently  destroyed 
by  fire,  and  that  because  of  the  terms  of  the  policy  in  suit  relating  to 
petroleum,  the  plaintiff  failed  in  a  recovery  against  said  company, 
because  of  having  a  barrel  of  carbon  oil  on  the  premises,  then,  he  is 
entitled  to  recover  against  the  defendant  in  this  action  the  amount 
of  the  policy,  with  interest,  from  time  of  payment  provided  in  said 
policy. 

Affirmed  pro  forma. 

Defendant  then  presented  the  following  points: 

1st.  To  sustain  this  action,  the  alleged  misrepresentations  must 
not  only  have  been  false,  but  it  must  be  shown  that  defendant  knew 
them  to  be  false,  and  made  them  with  intent  to  defraud  the  plaintiff. 

Refused  pro  forma. 

2nd.  That  the  alleged  representation  was  the  mere  opinion  of 
defendant  as  to  the  legal  effect  of  the  condition  in  the  policy  of  in- 
surance, and  the  condition  of  the  policy  being  open  to  the  observation 
of  the  plaintiff,  plaintiff  was  bound  to  know  the  legal  effect  thereof, 
and  cannot,  for  such  opinion  of  defendant,  recover  in  this  action. 

Refused  pro  forma. 

3rd.  That  if,  when  defendant,  as  agent  of  the  Birmingham  In- 
surance Company,  delivered  the  policy  to  the  plaintiff,  he  made  the 
alleged  representation  as  to  the  keeping  of  carbon  oil  in  the  insured 
premises,  and  made  them  in  accordance  with  the  existing  custom 
of  that  and  other  insurance  companies  in  insuring  stocks  of  merchan- 
dise in  country  stores,  then  plaintiff  cannot  recover. 

Refused  pro  forma. 

The  court  instructed  the  jury  to  find  for  the  plaintiff  reserving 
the  points  presented  as  above.  Verdict  accordingly.  Subsequently 
the  court  entered  judgment  for  the  defendant  on  the  points  reserved 
non  obstante  veredicto.  Thereupon  the  plaintiff  took  this  writ,  as- 
signing for  error  the  action  of  the  court  in  entering  judgment  for 
the  defendant  non  obstante  veredicto. 

Sterret,  J. — The  subject  of  complaint,  in  both  specifications  of 
error,  is  the  entry  of  judgment  for  defendant  non  obstante  vere- 
dicto. It  is  contended  that  upon  the  facts  established  by  the  verdict, 
judgment  should  have  been  entered  thereon  in  favor  of  plaintiff. 
The  jury  were  instructed  to  return  a  verdict  for  the  amount  claimed 
by  him,  if  they  were  satisfied  the  allegations  of  fact  contained  in 
the  point  presented  by  him  were  true.  In  view  of  this,  the  finding 
in  his  favor  necessarily  implies  a  verification  of  the  several  mat- 


404  LIABILITY    TO    THIRD    PARTY. 

ters  specified  in  plaintiff's  point,  and  hence  it  must  now  be  regarded 
as  containing  a  truthful  recital  of  the  circumstances  connected  with 
the  delivery  of  the  policy  and  payment  of  the  premium. 

The  transaction,  as  therein  detailed,  clearly  amounted  to  a  mutual 
understanding  or  agreement  between  the  parties  that  the  stock  of 
merchandise,  mentioned  in  the  policy,  should  include  one  barrel  of 
carbon  oil ;  in  other  words,  that  the  plaintiff  should  have  the  privi- 
lege of  keeping  that  quantity  of  oil  in  connection  with  and  as  a 
part  of  the  stock  insured,  without  thereby  invalidating  his  policy. 
It  is  impossible  to  regard  the  transaction  in  any  other  light.  The 
jury  found  that  plaintiff  "took  the  policy  upon  the  faith"  of  the 
representations  made  by  defendant.  These  representations  were  not 
merely  expressions  of  opinion  as  to  the  meaning  of  the  policy.  On 
the  contrary,  the  defendant,  acting  as  its  agent  and  assuming  author- 
ity to  speak  for  the  insurance  company,  asserted  without  any  qualifi- 
cation that  when  carbon  oil  was  kept  as  plaintiff  was  in  the  habit 
of  keeping  it — a  single  barrel  at  a  time — it  was  unnecessary  to  men- 
tion the  fact  in  the  policy,  or  otherwise  obtain  the  consent  of  the 
company ;  that  no  notice  is  ever  taken  of  it  unless  "it  is  kept  in 
large  quantity — say  several  hundred  barrels.  In  that  case,  when 
it  is  wholesale,  it  should  be  mentioned ;  but,  as  long  as  it  is  kept, 
not  more  than  a  barrel  in  the  store  at  a  time,  it  is  considered  as 
general  merchandise  and  is  not  taken  notice  of  in  any  other  way." 
Such  was  the  language  employed  by  the  defendant,  evidently  for 
the  purpose  of  dispelling  any  doubt  that  existed  in  the  mind  of  the 
plaintiff  and  inducing  him  to  accept  the  policy  and  pay  the  pre- 
mium ;  and,  to  that  end  at  least,  it  was  successful.  What  was  said 
and  done  by  defendant,  in  the  course  of  the  transaction,  amounted 
to  more  than  a  positive  assurance  that  the  accepted  meaning  of  the 
policy  was  as  represented  by  him.  In  effect,  if  not  in  substance,  his 
declarations  were  tantamount  to  a  proposition,  on  behalf  of  the  com- 
pany he  assumed  to  represent,  that  if  the  insurance  was  effected 
it  should  be  with  the  understanding  that  a  barrel  of  carbon  oil  was 
included  in  and  formed  part  of  the  insured  stock  of  merchandise, 
without  being  specially  mentioned  in  the  policy.  The  plaintiff 
doubtless  so  regarded  his  declarations,  and  relying  thereon,  as  the 
jury  has  found,  accepted  the  policy  on  the  terms  proposed,  and  thus 
concluded,  as  he  believed,  a  valid  contract  of  insurance,  authorizing 
him  to  keep  in  stock,  as  he  had  therefore  done,  a  small  quantity  of 
carbon  oil.  It  was  not  until  after  the  property  was  destroyed  that 
he  was  undeceived.  He  then  discovered  that,  in  consequence  of  de- 
fendant having  exceeded  his  authority,  he  was  without  remedy 
against  the  company.  Has  he  any  remedy  against  the  defendant,  by 
whose  unauthorized  act  he  was  placed  in  this  false  position?  We 
think  he  has.  If  the  president  or  any  one  duly  authorized  to  repre- 
sent the  company  had  acted  as  defendant  did,  there  could  be  no 
doubt  as  to  its  liability.    Why  should  not  the  defendant  be  person- 


;.o--. 


if?,  assuming 
iithority 


bear  the  io,. 
vcr  a  party 
ti  he  does  not 
Oi-  if  he  exceeci 
liable  to  the 
.,''.6  principal: 
.'giiized  in  Evan-^ 


2x2,  222,  uayug  V.  vMCwartj  i  Vv.  vx  b.  2. 
.0  W.  N.  C.  493;  Jefts  v.  York,  lo  Cush. 

■'.  Y.  467.    In  the  latter  case,  it  is  said,  the  reason  v.-ny 

..  w.ible  in  damages  to  the  person  with  whom  he  contracts. 

he  exceeds  his  authority,  is  that  tlie  party  dealing  with  hiir> 
' -ed  of  any  remedy  upon  the  contract  against  the  principal, 
ract,  though  in  form  that  of  the  rtrincipal,  is  not  his  in  f?.ct, 
■  loss,  cxzcasv  there  being  no  valid 

be  borne  by  t  who  contracted  for 

out  authority.     In  Layng  v  .  supra,  Mr.  Jusii'.f 

ays:     "It  is  not  worth  while  ..   >  .  .carnf"  -^  •    --^^    '■' 
The  cases  cited  show  that  if  an  agent 
and  employs  a  person,  his  principal  is  i; 
the  agent  is  bound."     The  plaintiflF  in  t  • 
.\de  a  contra 
;  to  bind  hi; 
liLy  to  make  the 
judgment,,  said 
:y,  whether  the 
ard  to  make  th^ 
He  was  person- 
;  or  in  ! 
•  that  ti 
party  ■ 

agents  have  bee  <Ily 

..1,   classified  a"^    '■■  ■'  ihe 

ise  representatiu  \  to 

;  with  ''^ 
qnv  fr-. 


ters  specified 


•w  be  regarded 
connected  with 


merchanii: 
carbor  ■'>• 
lege 
part 
It  is 


declar 
pany  n-. 
it  should 


him  I. .  ..v„, 
carbon  oil. 


ro  a  mutual 

i.e  stock  of 

e  one  barrel  of 

.....   ...  have  the  privi- 

of  oil  i  with  and  as  a 

'  ''  M!'.  uiuiiting  his  policy, 

any  other  light.     The 
'1  the  faith"  of  the 
I  sentations  were  not 

as  to  the  meanuig  of  the  policy.    On 
1  '  •  as  its  agent  and  assuming  author- 
ny,  asserted  without  any  qualifi- 
■  i  ivcpt  as  plaintiff  was  in  the  habit 
I  a  time — ^it  was  unnecessary  to  men- 
consent  of  the 
"it  is  kept  in 
s.     Ill  that  case,  when 
t,  as  long  as  it  is  kept, 
store  at  a  time,  it  is  considered  as 
■  'l-en.  notice  of  in  any  other  way." 
;)y  the  defendant,  evidently  for 
I  that  existed  in  the  mind  of  the 
-]-it  the  policy  and  pay  the  pre- 
il.    What  was  said 
iisaction,  amounted 
nat  the  accepted  meaning  of  the 
•r,  e^fct.  if  not  in  substance,  h's 

n,  on  behalf  of  the  cc 
L   u  the  insurance  was  efFect<-.i 
>  that  a  barrel  of  carbon  oil  was 
^  jnsured  stock  of  mere! 
in    th'/"   poiiry       The    j 

■on,  as  ' 
d,  and  tl:: 
ice,  authorizi   :, 
x.  ;    -  nail  quantity 
^rty  was  destroyed  ti: 


%\ 


think  iie  has.     if  i[ 
sent  the  company  i  ^ 
.ionbt  u.^  to  its  liability 


luthorized  to  rep: 
,:,  there  could  be  ! 
defendant  be  perso 


UNAUTHORIZED    CONTRACTS.  405 

ally  responsible,  in  like  manner,  for  the  consequences,  if  he,  assuming 
to  act  for  the  company,  overstepped  the  boundary  of  his  authority 
and  thereby  misled  the  plaintiff  to  his  injury,  whether  intentionally 
or  not?  The  only  difference  is  that  in  the  latter  the  authority  is 
self-assumed  while  in  the  former  it  is  actual ;  but,  that  cannot  be 
urged  as  a  sufficient  reason  why  plaintiff,  who  is  blameless  in  both 
cases,  should  bear  the  loss  in  one  and  not  the  other.  As  a  general 
rule,  "whenever  a  party  undertakes  to  do  any  act  as  the  agent  of 
another,  if  he  does  not  possess  any  authority  from  the  principal 
therefor,  or  if  he  exceeds  the  authority  delegated  to  him,  he  will 
be  personally  liable  to  the  person  with  whom  he  is  dealing  for  or  on 
account  of  his  principal :"  Story  on  Agency  264.  The  same  princi- 
ple is  recognized  in  Evans  on  Agency  ^301 ;  Whart.  on  Agency  524; 
2  Smith's  Lead.  Cases  380,  note ;  i  Pars,  on  Cont.  dy,  and  in  numer- 
ous adjudicated  cases,  among  which  are:  Hampton  v.  Speckenagel, 
9  S.  &  R.  212,  222;  Layng  v.  Stewart,  i  W.  &  S.  222,  226;  McConn 
V.  Lady,  10  W.  N.  C.  493;  Jefts  v.  York,  10  Cush.  392;  Baltzen  v. 
Nicolay,  53  N.  Y.  467.  In  the  latter  case,  it  is  said,  the  reason  why 
an  agent  is  liable  in  damages  to  the  person  with  whom  he  contracts, 
when  he  exceeds  his  authority,  is  that  the  party  dealing  with  him 
is  deprived  of  any  remedy  upon  the  contract  against  the  principal. 
The  contract,  though  in  form  that  of  the  principal,  is  not  his  in  fact, 
and  it  is  but  just  that  the  loss,  occasioned  by  there  being  no  valid 
contract  with  him,  should  be  borne  by  the  agent  who  contracted  for 
him  without  authority.  In  Layng  v.  Stewart,  supra,  Mr.  Justice 
Huston  says :  "It  is  not  worth  while  to  be  learned  on  very  plain 
matters.  The  cases  cited  show  that  if  an  agent  goes  beyond  his 
authority  and  employs  a  person,  his  principal  is  not  bound,  and  in 
such  case  the  agent  is  bound."  The  plaintiff  in  error,  in  McCann 
V.  Lady,  supra,  made  a  contract,  believing  he  had  authority  to  do  so, 
and  not  intending  to  bind  himself  personally.  The  jury  found  he 
had  no  authority  to  make  the  contract  as  agent,  and  this  court,  in 
affirming  the  judgment,  said:  "It  was  a  question  of  fact  submit- 
ted to  the  jury,  whether  the  plaintiff  in  error  had  authority  from 
the  School  Board  to  make  the  contract  as  their  agent.  They  found 
he  had  not.  He  was  personally  liable  whether  he  made  the  con- 
tract in  his  own  name  or  in  the  name  of  his  alleged  principal.  It 
is  a  mistake  to  suppose  that  the  only  remedy  was  an  action  against 
him  for  the  wrong.  The  party  can  elect  to  treat  the  agent  as  a 
principal  in  the  contract." 

The  cases  in  which  agents  have  been  adjudged  liable  personally 
have  sometimes  been  classified  as  follows,  viz.,  ist.  Where  the 
agent  makes  a  false  representation  of  his  authority  with  intent  to 
deceive.  2nd.  Where,  with  knowledge  of  his  want  of  authority, 
but  without  intending  any  fraud,  he  assumes  to  act  as  though  he 
were  fully  authorized ;  and,  3d,  where  he  undertakes  to  act,  bona 
fide  believing  he  has  authority,  but  in  fact  has  none,  as  in  the  case 


406  LIABILITY    TO    THIRD    PARTY. 

of  an  agent  acting  under  a  forged  power  of  attorney.  As  to  cases 
fairly  brought  within  either  of  the  first  two  classes  there  cannot  be 
any  doubt  as  to  the  personal  liability  of  the  self-constituted  agent; 
and  his  liability  may  be  enforced  either  by  an  action  on  the  case  for 
deceit,  or  by  electing  to  treat  him  as  principal.  While  the  liability  of 
agents,  in  cases  belonging  to  the  third  class,  has  sometimes  been 
doubted,  the  weight  of  authority  appears  to  be  that  they  are  also 
liable.  In  Story  on  Agency,  the  learned  author,  recognizing  the 
undoubted  liability  of  those  belonging  to  the  first  two  classes,  says, 
"Another  case  may  be  put  which  may  seem  to  admit  of  some  doubt, 
and  that  is  where  the  party  undertakes  to  act  as  an  agent  for  the 
principal,  bona  Ude  believing  he  has  due  authority,  and  therefore 
acts  under  an  innocent  mistake.  In  this  last  case,  however,  the 
agent  is  held  by  law  to  be  equally  as  responsible  as  he  i*s  in  the  two 
former  cases,  although  he  is  guilty  of  no  intentional  fraud  or  moral 
turpitude.  This  whole  doctrine  proceeds  upon  a  plain  principle  of 
justice;  for  every  person,  so  acting  for  another,  by  a  natural  if  not 
a  necessary  implication  holds  himself  out  as  having  competent  au- 
thority to  do  the  act ;  and  he  thereby  draws  the  other  party  into  a 
reciprocal  engagement.  If  he  has  no  such  authority  and  acts  bona 
fide,  still  he  does  a  wrong  to  the  other  party;  and  if  that  wrong 
produces  injury  to  the  latter,  owing  to  his  confidence  in  the  truth 
of  an  express  or  an  implied  assertion  of  authority  by  the  agent,  it 
is  perfectly  just  that  he  who  makes  such  assertion  should  be  per- 
sonally responsible  for  the  consequences,  rather  than  that  the  injury 
should  be  borne  by  the  other  party  who  has  been  misled  by  it :" 
"Story  on  Agency,  264.  This  principle  is  sustained  by  the  authori- 
ties there  cited,  among  which  is  Smout  v.  Ilbery,  10  Mees.  &  Wels. 
I,  9. 

Without  pursuing  the  subject  further,  we  are  of  opinion  that, 
upon  the  facts  established  by  the  verdict,  judgment  should  have 
been  entered  for  the  plaintiff,  on  the  question  of  law  reserved.^ 

^"If  there  are  not  apt  words  to  charge  the  agent,  and  the  credit  is  not  given 
to  him,  then  he  is  liable  only  in  an  action  ex  delicto."  Downer,  J.,  in  McCurdy 
V.  Rogers,  21  Wis.  199,  204. 

The  fact  that  the  agent  acquires  no  persona!  benefit  from  the  wrong  com- 
mitted does  not  affect  his  liability.     Weber  v.  Weber,  47  Mich.  569. 

"When  he  (the  agent)  is  guilty  of  no  wrong  or  omission;  when  there  is  a 
full  and  honest  disclosure  of  the  nature  and  extent  of  his  authority;  when 
the  party  dealing  with  him  has  all  the  knowledge  and  information  which  the 
agent  possesses,  there  is  no  liability  resting  upon  him,  though  his  act  or  con- 
tract proves  to  be  ultra  vires."  Brickell,  C.  J.,  in  Ware  v.  Morgan,  6y  Ala. 
461,  468.  ,y| 


UNAUTHOF" 

COLLEN  V.  WRl 
1857.    Exchequer  Cha:>iber.    8  E. 


ner  s. 


r''^iri  the  de'-'--'' 

art  of  Queer 

hout  pi' 

;;e  will  be  1 

u:c    report   belov^- ;    vimt-n 

•'-•     -   E.   ^: 

nee,  it  stated  that  the  testat( 

I                          ;;  land 

ed  Gardner,  ano 

r  the  lease  to  h'vr 

■v  tormal  agreemen; 

'     :   '.'d  by  the  te 

to  William 

r,  Ksqn 

oy  plaintiff.     T...  p.^. 

M..IL  entered  01  i  . 

f  this  agreement.     Mr. 

Gardner  refused 

alleging,  accurately  as  it  proved,  that  he  na^ 
ator  no  authority  to  agree  for  a  lease  for  so  Ic 
'lad  commenced  a  suit  in  chancery  -against  v. 
i-erformance.    On  discovering  the  ground  of  u. 
r  sent  to  Wright  a  formal  notice  that,  unless  they  received 
;ht  notice  to  the  contrary,  the  plaintiff  would  proceed  with 
right's  expense;  and,  in  the  event  of  his  bill  being  dis- 
the  ground  of  the  absence  of  authority,  would  commence 
to  recover  the  costs  and  other  damages  by  reason  of 
vant  of  authority.     Wr  r   sent   an   answer, 

,  April,  1855,  denying  W-  .y  td  any  action.  1    .' 


iing  any  admission  f' 

•It  had  not  had 

nit  was  proceed d 

h-  •,:!!  .-r.nwv,-, 

■und  that  Wrigh. 

•"      The  case  in 

'1,   and    submitt. 

plaintiff  is  t\ 

executrix  a 

s;   2.    W 

.   plaintiff, 

t>e  recovered';  or, 

covered,  which  > 

er.  to  the  exact 

money  na  cost^ 


oi  ail  agent  ac 
fairly  brought 
jny  cioabt  as  i 
■■  -'■  '''■>  liabilil; 
or  by  ei 
'i>;\;;;:s,  in  cas; 
doubted,  the   x 
Uabie.     Tr    " 
UTidoubtei- 
"Another 
and  that  ' 
princi; 
acts  ;; 
agent 


As  to  cases 
le.re  cannot  be 
tituted  agent; 
■>n  the  case  for 
the  liability  of 
:     sometimes  been 
liiat  they  are  also 
t,  recognizing  the 
:  two  classes,  says, 
•iiit  of  some  doubt, 
s  an  agent  for  the 
lity,  and  therefore 
case,  however,  the 
'  as  he  Ts  in  the  two 
mal  fraud  or  moral 
'  |)lain  principle  of 
'  natural  if  not 
competent  an- 
other party  into  a 
.  .<rity  and  acts  bona 
the  other  party;  and  if  that  wrong 
.nving  to  his  confidence  in  the  trut'^ 
ertion  of  authority  by  the  agent, 
s  such  assertion  should  be  per- 
itces,  rather  than  that  the  injuri' 
party  who  has  been  misled  by  i^ 
principle  is  sustained  by  the  auth<:- 
-  Smout  V.  Ilbery,  lo  Mees.  &'W(:': 


le  has  <' 

^liy  ui  V 
'  nroceC' 


^e  thereby  <i 

'"^  has  no  su... 


I 


Withoni 
upon  the 

been  en^'e'. 


we  are  of  opinion  th 

tnc  verdict,  judgment  should  ha 
the  question  of  law  reserved.^ 

.irge  the  agent,  and  the  credit  is  not  gi 


lijc    wruli;, 

;ii.  569. 


UNAUTHORIZED    CONTRACTS.  407 

COLLEN  V.  WRIGHT. 

1857.     Exchequer  Chamber.     8  E.  &  B.  647. 

Appeal  from  the  decision  of  the  Court  of  Queen's  Bench  on  a 
case  stated  without  pleadings.  The  case  will  be  found  stated  in 
full  in  the  report  below:  Collen  v.  Wright,  7  E.  &  B.  301.  In 
substance,  it  stated  that  the  testator  Wright  was  land  agent  for  a 
gentleman  named  Gardner,  and,  as  such,  made  an  agreement  with 
the  plaintiff  for  the  lease  to  him  for  12^  years  of  a  farm  of  Gard- 
ner's. A  formal  agreement  between  landlord  and  lessee  was  drawn 
up  and  signed  by  the  testator  in  the  following  form :  "Robert 
Wright,  agent  to  William  Dunn  Gardner,  Esquire,  lessor."  It  was 
also  signed  by  plaintiff.  The  plaintiff  entered  on  the  farm  on  the 
strength  of  this  agreement.  Mr.  Gardner  refused  to  execute  any 
such  lease,  alleging,  accurately  as  it  proved,  that  he  had  conferred 
on  the  testator  no  authority  to  agree  for  a  lease  for  so  long  a  term. 
The  plaintiff  had  commenced  a  suit  in  chancery  against  Gardner 
for  a  specific  performance.  On  discovering  the  ground  of  defense, 
his  solicitor  sent  to  Wright  a  formal  notice  that,  unless  they  received 
from  Wright  notice  to  the  contrary,  the  plaintiff  would  proceed  with 
suit  at  Wright's  expense ;  and,  in  the  event  of  his  bill  being  dis- 
missed on  the  ground  of  the  absence  of  authority,  would  commence 
an  action  to  recover  the  costs  and  other  damages  by  reason  of 
Wright's  want  of  authority.  Wright's  solicitor  sent  an  answer, 
dated  nth  April,  1855,  denying  Wright's  liability  to  any  action,  but 
not  containing  any  admission  that  Wright  had  not  had  full  author- 
ity. The  suit  was  proceeded  with,  and  the  bill  dismissed  with  costs, 
on  the  ground  that  Wright  had  no  authority  from  Gardner  to  sign 
the  agreement.  The  case  in  the  Queen's  Bench  was  stated  after 
Wright's  death,  and  submitted  two  questions  to  the  court:  i. 
Whether  the  plaintiff  is  entitled  to  maintain  an  action  against  the 
defendants,  as  executrix  and  executors  of  the  said  Robert  Wright 
to  recover  damages ;  2.  Whether,  if  so,  the  whole  of  the  damages 
sustained  by  the  plaintiff,  including  his  costs  of  the  said  suit  in 
chancery,  can  be  recovered ;  or,  if  some  of  such  damages  and  costs 
only  can  be  recovered,  which  of  them,  and  to  what  extent,  without 
regard,  however,  to  the  exact  amount.  The  case  contained  provi- 
sions for  a  judgment,  subject  to  an  arbitration  to  ascertain  the 
amount  of  damages  according  to  the  principles  laid  down  by  the 
court.  The  court  of  Queen's  Bench  ordered  that  judgment  should 
be  "entered  for  the  plaintiff  for  such  amount  of  damages  as  shall  in- 
clude money  laid  out  and  costs  of  chancery  suit." 

The  defendant  appealed. 

Willes,  J. — It  appears  to  me  that  the  judgment  of  the  Court  of 
Queen's  Bench  ought  in  all  respects  to  be  affirmed.  I  am  of  opinion 
that  a  person,  who  induces  another  to  contract  with  him  as  the  agent 


408  LIABILITY    TO'    THIRD    PARTY. 

of  a  third  party  by  an  unqualified  assertion  of  his  being  authorized 
to  act  as  such  agent,  is  answerable  to  the  person  who  so  contracts 
for  any  damages  which  he  may  sustain  by  reason  of  the  assertion 
of  authority  being  untrue.  This  is  not  the  case  of  a  bare  misstate- 
ment by  a  person  not  bound  by  any  duty  to  give  information.  The 
fact  that  the  professed  agent  honestly  thinks  that  he  has  an  authority 
affects  the  moral  character  of  his  act ;  but  his  moral  innocence,  so 
far  as  the  person  whom  he  has  induced  to  contract  is  concerned, 
in  no  way  aids  such  person  or  alleviates  the  inconvenience  and  dam- 
age which  he  sustains.  The  obligation  arising  in  such  a  case  is 
well  expressed  by  saying  that  a  person,  professing  to  contract  as 
agent  for  another,  impliedly,  if  not  expressly,  undertakes  to  or 
■promises  the  person  who  enters  into  such  contract,  upon  the  faith 
of  the  professed  agent  being  duly  authorized,  that  the  authority 
which  he  professes  to  have  does  in  point  of  fact  exist. 

The  fact  of  entering  into  the  transaction  with  the  professed  agent, 
as  such,  is  good  consideration  for  the  promise.  Indeed  the  contract 
would  be  binding  upon  the  person  dealing  with  the  professed  agent 
if  the  alleged  principal  were  to  ratify  the  act  of  the  latter.  This 
was,  in  effect,  the  view  taken  by  the  Court  of  Queen's  Bench,  and  to 
which  I  adhere.  With  respect  to  the  amount  of  damages,  I  retain 
the  opinion  thrown  out  in  the  course  of  the  argument,  that  all  the 
expenses  sought  to  be  recovered  were  occasioned  by  the  assertion  of 
authority  made  at  the  time  of  the  contract  being  continued  and  per- 
sisted in  by  the  defendant's  testator  and  bona  fide  acted  upon  by 
the  plaintiff.  That  assertion  was  never  withdrawn,  not  even  in  the 
letter  of  April  ii,  1855,  in  answer  to  the  plaintiff's  notice  to  the 
defendant's  testator,  long  after  the  proceedings  in  chancery  had 
commenced  and  whilst  they  were  in  full  progress.  I  am  therefore 
of  opinion  that  the  judgment  of  the  Queen's  Bench  was  right,  and 
that  it  ought  to  be  affirmed. 

CocKBURN,  C.  J. — I  regret  most  unfeignedly  to  find  myself  differ- 
ing in  this  case  from  so  many  of  my  learned  brothers,  for  whose 
opinions  I  entertain  the  profoundest  respect  and  deference,  and 
in  whose  views  I  should  have  every  disposition  to  acquiesce,  if, 
after  considering  the  subject  with  the  most  anxious  desire  to  concur 
with  them,  I  could  persuade  myself  that  in  giving  judgment  for  the 
plaintiff  we  were  not  going  beyond  what  the  law  warrants.  The 
proposition  we  are  called  upon  to  affirm  is,  that  by  the  law  of 
England  a  party  making  a  contract  as  agent  in  the  name  of  a  princi- 
pal impliedly  contracts  with  the  other  contracting  party  that  he  has 
authority  from  the  alleged  principal  to  make  the  contract,  and  that, 
if  it  turns  out  that  he  has  not  this  authority,  he  is  liable  in  an  action 
on  such  implied  contract.  It  appears  to  me  that  there  is  not  suffi- 
cient authority  to  warrant  this  position,  and  that,  even  assuming 
for  the  purpose  of  the  argument  that  such  a  rule  might  be  desirable, 
in  establishing  it  we  shall  be  creating  a  new  law  instead  of  expound- 


■tified  in 
e  looked 
■    •  ■■  r.f  "on - 

id,  so  far  r 
of   implied 
of  implied  < 
;}•  enumerated,  jk 
iitended  for  in  th 
md,  so  far  as  I  Hi 
)rms  of  actions 
'  le,  in  the  learn  ■ 
ting  to  agency,  . 
.rsoDs  professing  to  act  as  sur 
'        '-^.d,  not  even  a  hint  is  to  > 

rt  of  the  agent  as  to  the  exisi 
>-sses    to    act.      In    Professor    :::Lor)  s    wcrK    o^ 
is  laid  down  as  clear  that  a  person  contracting 
luthority  will  be  liable  to  the  party  with  whom  the  cO!; 
.  yet,  w^hen  the  mode  in  which  that  liability  is  to  bt 
jorcea  is  considered,  the  alternative  is  put  between  a  special  actior. 
n  tlv'  r-xse  on  the  one  hand,  and  an  action  on  the  contract  against 
ssed  agent  as  principal  on  the  other ;  but  it  does  not  appear 
ccurred  to  that  very  learned  and  scientific  jurist  that,  either 
:w  of  England  or  that  of  America,  an  action  could  be  main- 
:i  an  implied  contract  as  to  the  existence  of  auth*"- 
iner,  in  the  note  to  the  case  of  Thompson  v.  !• 
&  C.  78   (E.  C.  L.  R.  vol,  17),  where  the  pr^ 
">iv-  as  collected  from  the  cases  on  agencv  .-^re  Va- 
that  if  a  man  state  himselt  to  be  an   1 
!n-ipal,  he  is,  in  law,  Ir"'        '  ■  ■•"  :- 

>d   that  he  is  liable   ex 


I  courts,  it  will  be 
.vrote  no  such  docti 
inst  a  party  cont 

■  >  assumed  to  be  ^ 
station,  or  by  an 

■  -act.     The  t' 
•t    sufficient 


d  down,  and  sup 


Downnr 


40^ 


t'y    c     1    such  a^;: 

lor  any  darriM 

of  authority  1 
by  a  pc: 
Uat  the  ]' 

affects  the  iv 

lus  aci . 

far  as  the  o, 

f!^  infill 

in  no  wa; 
age  whir' 
well  exp- 

.    ii    not 

I 

of      t: 

fs  into  - 
duly  ai 

\vhi( : 

•^  in  poii 

iliat  _i  •. 
Cocke 
jng  in  thi.^ 
opinions  I   e 
in  whose  vie 
after  consider 


■sition  v; 

■  I'i  a  paiU   . 
dly  contr 
ujLi!.  I  .ly  from  th; 
if  it  turns  out  thai 
on  such  implied  c 
cient  aiithr^r'ty  tu    • 
for  h.'  e  of  tht 

in  f^s".  it  we  si 


m  who  so  contracts 

of  the  assertion 

'.  bare  roisstate- 

ition.    The 

an  authority 

d  innocence,  so 

-ict  is  concerned, 

nvenience  and  dam- 

■■^uig  in  such  a  case  is 

rofessing  to  contract  as 

v.   undertakes   to   or 

:  ract,  upon  the  faith 

that  the  authority 

exist. 

transaction  \\  ith  the  professed  agent, 

for  the  promise.    Indeed  the  contract 

^on  dealing  with  the  professed  agent 

to  ratify  the  act  of  the  latter.     This 

y  the  Court  of  ijueen's  Bench,  and  to 

.  to  the  amount  of  damages,  I  retain 

course  of  the  argument,  that  all  the 

■■■\  were  occasioned  by  the  assertion  of 

the  contract  being  continued  and  per- 

estator  and  bcnia  fide  acted  upon  by 

•as  never  withdrawn,  not  even  in  the 

nswer  to  the  plaintiff's  notice  to  the 

;  r  the  proceedings  in  chancery  had 

ere  in  full  progress.     I  am  therefore 

f  the  "Queen's  Bench  was  right,  and 

unfeignedly  to  find  myself  differ- 
^ji.  my  learned  brothers,  for  whose 
■>undest  respect  and  deference,  and^ 
;  ver)'^  disposition  to  acquiesce,  :': 
I  he  moct  anxious  desire  to  com  • 
:;g  judgment  for  ii 
aw  warrants,     "i 
*hat  by  the  law 
,e  name  of  a  prin 
•g^  party  that  he  i 
■:  inc  contract,  and  ti 
he  is  liable  in  an  ac? 
•  that  there  is  not  sum- 
id  that,  even  assuming 
I  rule  might  be  desirable,. 
law  instead  of  exprmnd- 


'S 


UNAUTHORIZED    CONTRACTS.  409 

ing  that  which  already  exists.  I  beheve  I  am  fully  justified  in 
saying  that  this  doctrine  is  altogether  a  novel  one.  I  have  looked 
carefully  into  the  various  treatises  and  text  books  on  the  law  of  con- 
tracts ;  and,  so  far  as  I  have  been  able  to  discover,  although  the 
doctrine  of  implied  contracts  has  been  fully  discussed,  and  the 
instance  of  implied  contracts  as  existing  in  the  law  of  this  country 
carefully  enumerated,  no  mention  is  to  be  found  of  the  implied  con- 
tract contended  for  in  this  case.  Nor  is  any  trace  of  such  an  action 
to  be  found,  so  far  as  I  am  aware,  in  the  printed  books  of  precedents 
on  the  forms  of  actions  and  of  pleading.  And,  what  is  still  more 
remarkable,  in  the  learned  and  elaborate  works  which  treat  Of  the 
law  relating  to  agency,  and  in  which  the  liabilities  of  agents,  or 
persons  professing  to  act  as  such  toward  third  parties,  are  fully 
considered,  not  even  a  hint  is  to  be  found  of  any  implied  contract 
on  the  part  of  the  agent  as  to  the  existence  of  the  authority  on  which 
he  professes  to  act.  In  Professor  Story's  work  on  Agency, 
while  it  is  laid  down  as  clear  that  a  person  contracting  as  agent 
without  authority  will  be  liable  to  the  party  with  whom  the  contract 
is  made,  yet,  when  the  mode  in  which  that  liability  is  to  be  en- 
forced is  considered,  the  alternative  is  put  between  a  special  action 
on  the  case  on  the  one  hand,  and  an  action  on  the  contract  against 
the  professed  agent  as  principal  on  the  other ;  but  it  does  not  appear 
to  have  occurred  to  that  very  learned  and  scientific  jurist  that,  either 
by  the  law  of  England  or  that  of  America,  an  action  could  be  main- 
tained on  an  implied  contract  as  to  the  existence  of  authority.  In 
like  manner,  in  the  note  to  the  case  of  Thompson  v.  Davenport, 
9  B.  &  C.  78  (E.  C.  L.  R.  vol.  17),  where  the  principles  as  to 
liability  as  collected  from  the  cases  on  agency  are  laid  down,  it  is 
asserted  that  if  a  man  state  himself  to  be  an  agent,  but  have  really 
no  principal,  he  is,  in  law,  himself  the  principal ;  but  it  is  not  sug- 
gested that  he  is  liable  c.v  contractu  in  any  other  form  than  as 
principal  on  the  original  contract.  Nor  is  this  silence  to  be  wondered 
at ;  for,  on  looking  to  the  reported  decisions  of  our  own  and  of  the 
American  courts,  it  will  be  found  that  at  the  time  these  learned 
authors  wrote  no  such  doctrine  had  ever  been  broached,  but  the 
remedy  against  a  party  contracting  on  behalf  of  another  without 
authority  was  assumed  to  be  either  by  an  action  on  the  case  for  the 
false  representation,  or  by  an  action  against  him  as  principal  on  the 
original  contract.  The  doctrine  that  a  person  professing  to  act  as 
agent  without  sufficient  authority  might  be  made  responsible  as 
principal  was  only  subverted  at  a  comparatively  recent  period.  In 
Paley's  work  On  the  Law  of  Principal  and  Agent,  Ch.  6,  §  i,  p.  386 
(3d  ed.),  it  is  laid  down,  and  supported  by  authorities,  that  a  party 
contracting  as  agent  is  responsible  as  principal,  where  there  is  no 
responsible  principal  to  resort  to,  or  where  he  exceeds  his  authority 
so  that  the  principal  is  not  bound.  Story  we  have  seen  holds  the  like 
language.    In  the  case  of  Jones  v.  Downman,  4  Q.  B.  235  (E.  C.  L. 


4IO  LIABILITY    TO    THIRD    PARTY. 

R.  vol.  45),  which  was  an  action  ex  contractu,  the  doctrine  of  Story, 
that,  "wherever  a  party  undertakes  to  do  any  act,  as  the  agent 
of  another,  if  he  does  not  possess  any  authority  from  the  principal, 
or  if  he  exceeds  the  authority  delegated  to  him,  he  will  be  personally 
responsible  therefor  to  the  person  with  whom  he  is  dealing  for  or 
on  account  of  his  principal,"  was  adopted  by  the  Court  of  Queen's 
Bench,  as  "supported  by  numerous  authorities,"  and  "founded  on 
plain  justice."  And  the  defendant,  who  was  there  sued  as  principal, 
was  held  to  be  liable  on  the  contract.  It  is  true  that  that  case  was 
afterwards  reversed  on  error  in  the  court  of  exchequer  chamber, 
(b)  but  solely  on  the  ground  that  the  absence  of  authority  was  not 
shown ;  and  the  court,  in  other  respects,  appears  to  have  recog- 
nized the  propriety  of  the  decision  of  the  Court  of  Queen's  Bench. 
And  in  a  note  to  the  case  of  Thomas  v.  Hewes,  2  C.  &  M.  519,  530, 
n.,*  the  same  law  is  stated  to  have  been  laid  down  on  different  oc- 
casions by  the  late  Mr.  Baron  Bayley,  and  by  Lord  Wensleydale 
when  a  baron  of  the  exchequer;  the  case  of  Smout  v.  Ilbery,  10 
M.  &  W.  i,^  where  an  action  was  brought  against  a  married  woman 
for  goods  purchased  by  her  on  her  husband's  account  after  her 
authority  to  pledge  his  credit  had  been  terminated  by  his  death, 
of  which  fact  she  had  been  ignorant,  though  the  court  held  that 
the  action  could  not  be  maintained  under  the  circumstances,  it  was 
never  doubted  that  action  was  rightly  brought  in  contract.  The  case 
of  Polhill  V.  Walter,  3  B.  &  Ad.  114  (E.  C.  L.  R.  vol.  23),  in  which 
it  was  held  that  a  person  accepting  a  bill  drawn  upon  another  in 
the  name  of  the  drawee  without  authority  could  not  be  sued  upon 
the  bill  as  acceptor,  seems  first  to  have  given  rise  to  a  contrar}^  im- 
pression, although  that  case  turned  mainly  on  the  peculiar  character 
of  the  bill  of  exchange  as  incapable  of  being  accepted  by  anyone 
but  the  drawee  except  for  honor  of  the  latter.  But  the  more  re- 
cent case  of  Jenkins  v.  Hutchinson,  13  Q.  B.  744,  (E.  C.  L.  R.  vol. 
66),  laid  down  the  position  broadly  that  an  action  ex  contractu  could 
not  be  maintained  against  the  professed  agent  as  principal ;  and 
the  same  doctrine  was  fully  confirmed  and  acted  upon  in  the  suc- 
ceeding case  of  Lewis  v.  Nicholson,  18  Q.  B.  503  (E.  C.  L.  R.  vol. 
83).  In  the  meantime,  the  liability  of  a  professed  agent  for  the 
unwarranted  assertion  of  authority  in  an  action  on  the  case  under- 
went further  consideration ;  and  the  doctrine  of  some  writers,  that 
any  misrepresentation  whereby  another  was  induced  to  do,  or  omit  to 
do,  an  act  from  which  injury  resulted,  would  render  the  party  mak- 
ing it  liable,  underwent  material  modification,  the  modern  decisions 
having  established  that  such  misrepresentation  will  not  afford  a 
ground  of  action  where  made  in  good  faith  and  without  knowledge 
that  it  was  untrue.  The  effect  of  these  doctrines  being  to  leave 
a  person  who  made  a  contract  with  another  as  agent  without  a 
remedy  where  the  professed  agent  had  acted  under  a  mistaken  im- 


I 


>r.  "^  >■■  .  Court 

who  decide  on, 


'11- 
•  c'l- 


to  say  that  upon  ont 

rime  be  liable  upon 
To  my  mind  it  by 

>  believed  to  be  the  v 
'  ion  not  to  be  ^o.  we 
of  an  '^ 

lis  a  vci 

ed  contract  that,  trequently  as  the  question  ot  the 

)i  authority  in  supposed  agents  has  been  before  our  ...l..  .o, 
.nch  as  the  question  of  liabilities  of  agents  has  been  dis- 

)  trace  of  this  doctrine  is  to  be  found  in  our  law  books 

in  the  last  few  years.     T  do  not  think  w^e  are  justified  in 


•'ch  a  remedy  by 

'"  fiat  of  a  judicir 

-0  discuss  the  e 

or  polic\'   of   t- 

erwise  I  think  it  might  n 

:e  are  t 

his  part  of  the  case,     I  > 

■rf     '^       : 

:.TOund  why  erroneous  reprc 

^.-  4.  ,.,,1    -hould  create  - 

i  in  the  cas 

\4-  party  r 

:  with't'- 

from  thv 

:  this  c; 

:h  we  are  c 

n  to  our  la 

^reby  an  ackno-'A 

.  •  .  :    ■ \- .          1 

■J  be  iai 

to  be 

!d  that 

'      ■  ■      is    OU".      ',.iM  S       Ij  i  ■  ■ 

all  humilitv  and 


i'.  WlllCll 

ti  ever  a 

or  .ui'-iiitr,  if  be  -i. 
or  if  he  exceeds  ;]k 
responsible  the; 
on  account  of  i 
Bench,  as  "suv 
plain  ju  Stic  •"  ' 
was  held  t 
afterw.' 
(b)  bv. 
shown 
nized  ! 
And  i;. 


'.V'liL  c.r-,i-  ( 

66),  laid  do- 
not  be  im- 
the  same  ti 
ceeding  case  Oi 
t53).     In  the  n 
unwarranted  a?- 
■'  '  -further  c: 
represei'i 
(10,  a  a  act  from  w)^ 
ing  it  liable,  under' 
havincr   ebtai)!ished 
ground  oi  aLUOii  \\ 
that  it  was  untrue, 
a  person   who  mao 
reined  v'  where  the  ', 


r\c;    the   -acre' 


ior  or 
._ -v.. V   _.  ..Jueen's 
and  "founded  on 
sued  as  principal, 
•vhat  that  case  was 
the  cui;u  ol  exchequer  chamber, 
At  the  absence  of  authority  was  not 
■  respects,  appears  to  have  recog- 
.171  01  tiic-  Ci^^'vt  of  Queen's  Bench. 
.  C.'&  iM.  519,  530, 
vc  ucti.  ,ti  on  different  oc- 

Bayley,  '  xird  Wensleydale 

I:'    ^  a.out  V.  Ilbery,  10 

..  ,      '.  a-oi  ;.(•  a  married  woman 
L  her  husband's  account  after  her 
tjad  been  tenninated  by  his- death, 
iiorant,  though  the  court  held  tliat 
'^'  under  the  circumstances,  it  was 
brought  in  contract.    The  case 
C.  L.  R.  vol.  23),  in  which 
ill  drawn  upon  another  in 
•     ty  could  not  be  sued  upon 
ii  .    .iiven  rise  to  a  contrary  im- 
ed  mainly  on  the  peculiar  character 
>;:iVi1p  Df  IK  in o'  accepted  by  anyone 
But  the  more  re- 
'  j  vj.  B.  744,  (E.  C.  L.  R.  vol. 
uat  an  action  ex  contractu  could' 
1   agent  as  principal;  and 
tid  acted  upon  in  the  suc- 
-oii,  16  O.  B.  503  (E.  C.  L.  R.  vt 
ilitv  of  a   r'r;-,ies5ed  agent  for  t!  . 
>n  the  case  unde. 
•  '^■'e  writers,  th: 
'  do,  or  omit  ! 
'  ir.icT  die  party  ma! 
'    the  modern  decisif>i 
•on   will  not   at+ 
aid  without  kno\*. .' 
e  doctrines  being  to  lea 
nother  as  agent  without 
icted  under  a  mistaken  ini 


UNAUTHORIZED    CONTRACTS.  4II 

pression  as  to  his  authority,  it  occurred  to  the  judges  of  the  Court 
of  Queen's  Bench  who  decided,  in  the  case  of  Lewis  v.  Nicholson, 
that  an  action  would  not  lie  against  the  agent  as  the  principal, 
to  suggest  that,  possibly,  the  agent  might,  under  such  circumstances, 
be  held  liable  on  an  implied  contract  that  he  had  authority  to  con- 
tract in  the  name  of  the  principal.  And  the  opinion  thus  inci- 
dentally thrown  out  in  that  case  has  been  acted  upon  in  this.  It  was 
of  course  impossible,  so  long  as  the  doctrine  prevailed  that  the  pro- 
fessed agent  could  be  sued  as  principal,  that  he  could  be  held  to  be 
liable  on  this  implied  contract.  It  would  have  been  obviously  in- 
consistent to  say  that  upon  one  and  the  same  contract  a  man  could  at 
the  same  time  be  liable  upon  an  express  and  also  upon  an  implied 
promise.  To  my  mind  it  by  no  means  follows  that,  because  that 
which  was  believed  to  be  the  remedy  in  law  turns  out  upon  further 
consideration  not  to  be  so,  we  are  therefore  justified  in  resorting  to 
the  fiction  of  an  implied  contract  hitherto  unknown  to  our  law.  To 
me  it  seems  a  very  strong  argument  against  the  existence  of  any 
such  implied  contract  that,  frequently  as  the  question  of  the  absence 
or  excess  of  authority  in  supposed  agents  has  been  before  our  courts, 
and  as  much  as  the  question  of  liabilities  of  agents  has  been  dis- 
cussed, no  trace  of  this  doctrine  is  to  be  found  in  our  law  books 
until  within  the  last  few  years.  I  do  not  think  we  are  justified  in 
introducing  such  a  remedy  by  the  mere  fiat  of  a  judicial  decree.  I 
do  not  stop  to  discuss  the  expediency  or  policy  of  the  proposed 
rule.  Otherwise  I  think  it  might  be  shown  that  there  are  two  sides 
even  to  this  part  of  the  case.  I  doubt  whether  there  is  any  suffi- 
cient ground  why  erroneous  representation,  in  the  absence  of  false- 
hood or  fraud,  should  create  a  greater  responsibility  in  the  case 
of  a  contract  than  in  the  case  of  any  other  transaction,  especially 
as  the  other  contracting  party  might  always  protect  himself  by  insist- 
ing on  communicating  with  the  alleged  principal  or  by  requiring  a 
warranty  of  authority  from  the  agent.  But  I  by  no  means  desire  to 
rest  my  opinion  upon  this  ground.  My  view  is,  that  this  implied 
contract,  which  we  are  called  upon  to  establish  in  this  case,  is  a 
thing  unknown  to  our  law ;  that  we  are  dealing  not  with  a  mere 
mode  whereby  an  acknowledged  liability  may  be  enforced,  but,  a 
supposed  liability  having  turned  out  to  be  unfounded  in  law,  we 
are  now  creating  a  new  species  of  liability  on  a  new  contract,  now 
for  the  first  time  to  be  implied,  as  to  a  warranty  of  authority  which, 
if  the  party  now  to  be  charged  had  been  required  expressly  to 
give,  he  would  probably  have  refused.  If  it  is  desirable  to  estab- 
lish such  a  rule,  it  seems  to  me  it  should  be  done  by  legislative 
enactment;  and  that  to  establish  it  by  judicial  decision  is  to  make 
the  law,  which  it  is  our  only  province  to  expound.  Against  this 
course,  though  in  all  humility  and  with  the  utmost  deference  to  the 


412 


LIABILITY    TO    THIRD    PARTY. 


better  opinion  of  my  colleagues,  I  feel  it  my  duty  to  record  my  pro- 
test. 

Judgment  affirmed.^ 


PATTERSON  v.  LIPPINCOTT. 


1885.     Supreme  Court  of  New  Jersey.     47  N.  J.  L.  457. 

ScuDDER^  J. — An  action  of  debt  was  brought  in  the  court  for  the 
trial  of  small  causes  by  Jacob  M.  Patterson  against  Barclay  Lippin- 
cott,  to  recover  the  balance,  $75,  claimed  under  a  contract  in  writing 
for  the  sale  of  the  exclusive  right  to  use,  manufacture  and  sell  the 
plaintiff's  patent  "air-heating  attachment,"  in  Atlantic  county.  New 
Jersey.  The  writing  was  signed  "Geo.  P.  Lippincott,  per  Barclay 
Lippincott,"  on  the  part  of  the  purchaser.  The  state  of  demand 
avers  that  by  virtue  of  this  agreement  the  plaintiff  did  in  due  form 
convey  said  patent  right  to  said  George  P.  Lippincott,  that  said 
George  and  Barclay,  on  request,  have  refused  to  pay  said  balance, 
and  that,  since  payment  became  due,  the  plaintiff  has  found  out  and 
charges  that  said  George  is  under  the  age  of  twenty-one  years.  He 
further  avers  that  he  never  had  any  contract  or  negotiations  with 
George,  and  that  Barclay's  warranty  of  authority  to  act  for  his  minor 
son  is  broken,  whereby  an  action  has  accrued  to  the  plaintiff  against 
the  defendant. 

The  averment  that  the  plaintiff  never  had  any  contract  or  negotia- 
tions with  George,  is  not  sustained  by  the  proof,  for  the  testimony 
of  Joseph  N.  Risley,  the  agent  who  made  the  sale,  which  is  the  only 
evidence  on  this  point  that  appears  in  the  case,  is,  that  the  defend- 

^  Accord:  Trust  Co.  v.  Floyd,  47  Ohio  St.  525;  Boston  R.  R.  Co.  v.  Richard- 
son, 135  Mass.  473 ;  Cochran  v.  Baker,  34  Ore.  555. 

In  Oliver  v.  Bank  of  England,  L.  R.  (1902)  i  Ch.  D.  610,  the  doctrine  of 
Collen  V.  Wright  was  applied  to  a  case  where  an  agent  acted  under  a  forged 
power  of  attorney,  believing  it  to  be  genuine.  Vaughan  Williams,  L.  J.,  on 
page  626,  quoted  with  approval  the  following  statement  from  the  opinion  of 
Bramwell,  L.  J.,  in  Dickson  v.  Renter's  Telegram  Co.,  L.  R.  3  C.  P.  D.  i,  5 : 
"Collen  V.  Wright  establishes  a  separate  and  independent  rule,  which,  with- 
out using  language  rigorously  accurate,  maybe  thus  stated:  if  a  person  requests 
and,  by  asserting  that  he  is  clothed  with  the  necessary  authority,  induces  an- 
other to  enter  into  a  negotiation  with  himself  and  a  transaction  with  the  person 
whose  authority  he  represents  that  he  has,  in  that  case  there  is  a  contract  by 
him  that  he  has  the  authority  of  the  person  with  whom  he  requests  the  other 
to  enter  into  the  transaction."  See  note  to  Oliver  v.  Bank  of  England,  in  16 
Harv.  Law  Rev.  311. 

"The  reason  why  the  agent  is  liable  in  damages  to  the  person  with  whom 
he  contracts,  when  he  exceeds  his  authority,  is  that  the  party  dealing  with  him 
is  deprived  of  any  remedy  upon  the  contract  against  the  principal."  Andrews, 
J.,  in  Baltzen  v.  Nicolay,  53  N.  Y.  467,  469. 

Regarding  the  measure  of  damages  when  a  recovery  is  had  against  the 
agent,  see  Dung  v.  Parker,  52  N.  Y.  494. 


-.th 

L     liic     p 

oout  hv^ 
:ic  county  wi- 
>    ..,..  ci Amission  of  i 
me  of  such  sale  and 
is  competeiv 
ct  of  a  jury 
•  court  for  tlx;  : 
;  in  the  court  o  i 
it  against  the  plaintiff.  on  for  the  r 

,r..ar  on  the  record,  but  tlie  ^■,..,  . .-.  aave  argued  li.. 
3  on  the  case  presented  by  the  pleadings  and  proofs, 
V'  here,  as  it  '^   'ow,  that  the  plaintiff  co; 

the  infancy  o  P.  Lippincott,  and  brin 

t  Barclay  T  ..as  principal  in  the  contrac: 

_::  of  its  expr  . 

the  face  of  the  written  agreement  George  P.  Lippiiicou  is 

rincipal  and  Barcky  Lippincott  the  agent.     The  suit  on  the 

ict  should  therefore  be.  against  the  principal  named,  and  not 

.  .  u      -,^nt,  unless  there  be  some  legal  cause  shown  to  change 

itv.    The  cause  assigned  bv  the  olaintiff  is  the  infancy 

in  his  name  by  his 
rVif;  of  action  is  P-  v 


•.    The  . 

ok,    2   Z                      vvhlth    foiiuvv.^   aiid 

536,  to    -^        -Ct  that  if  ;^    ;cr-:'ii 
for  an  individual  0, 

•■   not  legally  bindii' 

and  the  agent,  v 

respui!-' 
■>  be  h?s   • 

e  act  concerning  the  poor. 

id  that  an 

txecat;: 

.  such  c;. 

r  for  breach  oi 

•<    case.    Jenkin.      .     ._ 
Q.  B.  503 ;  Baltzer 

■^^    ^      "-,  and  r 

^.  ^§  5- 

a\'jn,jc:-.,  ■■ ,                            '       ■     ' 

ite 


record  my  pro- 


i88s. 


^■. ' 


L.  457. 

brought  in  the  court  for  the 

,.  cison  against  Barclay  Lippin- 

imed  under  a  contract  in  writing 

"     nanufacture  arid  sell  the 

a  Atlantic  county,  New 

Lippincott,  per  Barclay 

Tlie  state  of  demand 

t:e  plaintiff  did,  in  due  form 

.ige  P.  Lippincott,  that  said 

•  ve  refused  to  pay  said  balance, 

I'.ic,  the  plaintiff  has  found  out  and 

;er  the  ajBfe  of  twenty-one  years.    He 

\ct  or  negotiations  with 

'T-itv  to  net  for  his  minor 

ni  has  a»:  ;  laintiff  agai 


.*; 


tf  never  had  any  contract  or  negotia- 

•  ''^   ■'"  —  v^f,  for  the  testimony 

e,  which  is  the  only 

ai  aie  case,  is,  that  the  defend- 

^^oston  R.  R.  Co.  V.  Richf  r' 


trom  the  opinion 
R.  3  C.  P.  D.  I, 

■  lie,  which,  wi 
1  p?^?on  reQii- 


had  ag.'i. 


UNAUTHORIZED    CONTRACTS.  4I3 

ant  told  him  he  was  going-  out  of  business  and  intended  to  transfer 
it  to  George ;  requested  him  to  see  George ;  he  did  so ;  talked  with 
him ;  he  looked  at  the  patent ;  was  satisfied  with  it,  and  talked 
with  his  father  about  buying  it.  The  deed  for  the  patent  right  in 
the  Atlantic  county  was  drawn  to  George  P.  Lippincott.  It  is  proved 
by  the  admission  of  the  defendant,  Barclay  Lippincott,  that  at  the 
time  of  such  sale  and  transfer  his  son  George  was  a  minor.  This 
admission  is  competent  testimony  in  this  suit  against  him. 

A  verdict  of  a  jury  was  given  for  the  plaintiff  against  the  defend- 
ant in  the  court  for  the  trial  of  small  causes ;  and  on  the  trial  of 
the  appeal  in  the  court  of  common  pleas  there  was  a  judgment  of 
nonsuit  against  the  plaintiff.  The  reason  for  the  nonsuit  does  not 
appear  on  the  record,  but  the  counsel  have  argued  the  cause  before 
us  on  the  case  presented  by  the  pleadings  and  proofs,  the  conten- 
tion being  here,  as  it  was  below,  that  the  plaintiff  could  not  aver 
and  show  the  infancy  of  George  P.  Lippincott,  and  bring  this  action 
against  Barclay  Lippincott,  as  principal  in  the  contract,  in  contra- 
diction of  its  express  terms. 

On  the  face  of  the  written  agreement  George  P.  Lippincott  is 
the  principal  and  Barclay  Lippincott  the  agent.  The  suit  on  the 
contract  should  therefore  be  against  the  principal  named,  and  not 
against  the  agent,  unless  there  be  some  legal  cause  shown  to  change 
the  responsibility.  The  cause  assigned  by  the  plaintiff  is  the  infancy 
of  George  at  the  time  the  agreement  was  made  in  his  name  by  his 
father.  The  authority  on  which  he  bases  his  right  of  action  is  Bay 
V.  Cook,  2  Zab.  343,  which  follows  and  quotes  Mott  v.  Hicks,  i 
Cow.  536,  to  the  effect  that  if  a  person  undertakes  to  contract,  as 
agent,  for  an  individual  or  corporation,  and  contracts  in  a  manner 
which  is  not  legally  binding  upon  his  principal,  he  is  personally  re- 
sponsible ;  and  the  agent,  when  sued  on  such  contract,  can  exonerate 
himself  from  personal  responsibility  only  by  showing  his  authority 
to  bind  those  for  whom  he  has  undertaken  to  act.  Bay  v.  Cook,  was 
an  action  against  an  overseer  who  had  employed  a  physician  to 
attend  a  sick  pauper,  without  an  order  for  relief  under  the  provisions 
of  the  act  concerning  the  poor.  As  his  parol  contract  with  the 
physician  was  entirely  without  authority  to  bind  the  township,  it 
was  said  that  he  had  only  bound  himself  to  pay  for  the  services 
rendered  at  his  request. 

Later  cases  have  held  that  an  agent  is  not  directly  liable  on  an 
instrument  he  executes,  without  authority,  in  another's  name ;  that 
the  remedy  in  such  case  is  not  on  the  contract,  but  that  he  may  be 
sued  either  for  breach  of  warranty  or  for  deceit,  according  to  the 
facts  of  the  case.  Jenkins  v.  Hutchinson,  13  Q.  B.  744;  Lewis  v. 
Nicholson,  18  Q.  B.  503;  Baltzer  v.  Nicolay,  53  N.  Y.  467;  White 
V.  Madison,  26  N.  Y.  117,  and  many  other  cases  collected  in  the 
notes  in  Whart.  on  Agency,  §§  524,  532,  and  notes  to  Thomson  v. 
Davenport,  9  B.  &  C.  78,  in  2  Sm.  Lead.  Cas,  *358.  (Am.  ed.) 


414  LIABILITY    TO    THIRD    PARTY. 

Andrews,  J.,  in  Baltzer  v.  Nicolay,  supra,  says :  "The  ground  and 
form  of  the  agent's  Habihty  in  such  a  case  has  been  the  subject  of 
discussion  and  there  are  conflicting  decisions  upon  the  point ;  but  the 
later  and  better-considered  opinion  seems  to  be,  that  his  Habihty, 
when  the  contract  is  made  in  the  name  of  his  principal,  rest  upon 
an  implied  warranty  of  his  authority  to  make  it,  and  that  the  remedy 
is  by  an  action  for  its  breach." 

Although  the  state  of  demand  in  the  present  case  is  uniformly 
drawn,  there  is  in  the  last  sentence  a  charge  that  the  defendant's 
warranty  of  authority  in  pretending  to  act  for  said  minor  is  broken, 
whereby  an  action  has  accrued.  This  alleged  breach  of  an  implied 
warranty  is  founded  on  the  assumption  that  the  son  could  not  con- 
fer any  authority,  during  his  minority,  to  his  father  to  act  for  him 
in  the  purchase  of  this  patent  right.  There  are  two  answers  to  this 
position.  The  act  of  an  infant  in  making  such  contract  as  this, 
which  may  be  for  his  benefit  in  transacting  business,  either  directly 
or  through  the  agency  of  another,  is  voidable  only,  and  not  abso- 
lutely void,  and  therefore  there  is  no  breach  of  the  implied  war- 
ranty unless  there  be  proof  showing  that  the  act  of  the  agent  was 
entirely  without  the  infant's  knowledge  or  consent.  The  mere  fact 
of  the  infancy  of  the  principal  will  not  constitute  such  breach. 

It  was  argued  in  Whiting  v.  Dutch,  14  Mass.  457,  that  a  promis- 
sory note  signed  by  Dutch  for  his  partner.  Green,  who  was  a  minor, 
was  void  as  to  Green,  because  he  was  not  capable  of  communicat- 
ing authority  to  Dutch  to  contract  for  him,  and  that,  being  void, 
it  was  not  the  subject  of  a  subsequent  ratification.  But  the  court 
held  that  it  was  voidable  only,  and  having  been  ratified  by  the 
minor  after  he  came  of  age,  it  was  good  against  him.  See  Tyler  on 
Inf.,  Ch.  Ill,  §§  14,  18. 

Another  answer  is,  that  the  defense  of  infancy  to  this  contract  with 
the  plaintiff  can  only  be  set  up  by  the  infant  himself,  or  those  who 
legally  represent  him.  Infancy  is  a  personal  privilege  of  which  no 
one  can  take  advantage  but  himself.  Voorhees  v.  Wait,  3  Gr.  343 ; 
Tyler  on  Inf.,  ch.  IV,  §  19;  Bingham  on  Inf.  49. 

In  this  case  the  plaintiff  seeks  to  disaffirm  the  infant's  contract 
with  him,  in  his  own  behalf,  and  sue  a  third  party  on  the  contract, 
whose  authority  to  bind  him  the  infant  has  not  denied.  The  privi- 
lege of  affirming  or  disaffirming  the  contract  belongs  to  the  infant 
alone,  and  the  plaintiff  cannot  exercise  it  for  him.  The  mere  re- 
fusal to  pay,  charged  in  the  demand  and  proved,  is  not  a  denial  of 
the  defendant's  authority  to  bind  the  infant,  for  it  may  be  based  on 
the  failure  of  consideration,  the  invalidity  of  the  patent,  fraudulent 
representations  or  other  causes. 

The  judgment  of  nonsuit  entered  in  the  court  of  common  pleas 
will  be  affirmed.^ 

'  See  Lewis  v.  Tilton,  64  la.  220. 


,  J.— Tl 

that  the 
mother,  made  a  com 
her  by  reason  of  the  > 
The  ground  and   : 

.  s  been  the  subj., 
nat  he  is  Hablc  • 
.i  uie  faith  that  he  pc 
v;c,  1 6  Minn.  346  {Z^\ 

,  53  N.  Y.  467;  Alechem,  Ag.  g§  541-545- 
.  .lie  question  has  arisen,  or  whatever  diverse  .  .  . 
entertain  as  to  the  precise  ground  of  the  Hability  or  fo: 
'      all  the  authorities  are  agreed  that,  to  give  a  party  ^ 
against  the  professed  agent,  he  must  have  been  ignora 
t  of  authority,  and  have  acted  upon  the  faith  of  the  ; 
IS,  express  or  implied,  that  the  professed  agent  had  tb. 
I  !ty  assumed.    Hence  the  law  is  that  when  the  professed  agent, 
ig  in  good  faith,  fully  discloses  to  the  other  party,  at  the  time, 
ihe  facts  and  circumstances  touching  the  authority  under  which 
"mes  to  act,  so  that  the  other  party,  from  such  information  or 
e,  is  fully  informed  as  to  the  existence  and  extent  of  his 
jnty,  be  cannot-be  held  liable.    Mechem,  Ag.. 


Section  2.~Torts. 


ul:.,  J.--ihc  [ji 
'^t  a  mining  corp  ■ 

endorsed  by  hii- 

ec  in  1-1 '■;  ..Rice,  a.. 

■.-    th:; 


an  liiipiK.- 
is  by  an  . 

Although 
drawn,  th':-''' 
warrant)- 
wherr'- 
'.v'lr; 


supra.  iie  ground  and 

■n!:-  subject  o£ 

mil ;  but  the 

liis  liability, 

,  rest  upon 

.uid  tliat  the  remedy 

•n  the  pr<'sent  case  is  uniformly 
^..ce  a  charge  that  the  defendant's 
iding  to  act  for  said  minor  is  broken, 
;.    This  alleged  breach  of  an  implied 
-umption  that  the  son  could  not  con- 
|"ity,  to  his  father  to  act  for  him 
Th'^re  are  two  answers  to  this 
lit  in  H;  :h  contract  as  this, 

1  transa:      ,         .ness,  either  directly 
ther,  is  voidable  only,  and  not  abso- 
re  is  no  bre^ich  of  the  implied  war- 
owing  that  the  act  of  the  agent  was 
iiowledge  or  consent.     The  mere  fact 
'■  will  not  constitute  such  breach. 
.  Dutch,  14  Mass.  457,  that  a  promis- 
his  partner,  Green,  who  was  a  minor^ 
0  he  was  not  capable  of  communicat- 
itract  for  him,  and  that,  being  void, 
j.bsequent  ratification.     But  the  court 
only,  and  having  been   ratified  by  !'■ 
it  was  good  against  him.    See  Tyler 


the  piaii; 
V;r.]1y  rq... 
an  take 
;  '...:]■  on  I-  ■' 
'In  thi^ 
'    him,  in 
e  author 


fusal  to  pay,  cha: 


i.e  alhi-ined.^ 


■  rvi'  -r  t  infancy  to  this  contract  ^ 
'  by  the  infant  himself,  or  those  \ 
V  is  a  personal  privilege  of  whicl; 
nself.  Voorhees  v.  Wait,  3  Gr,  3 
iigham  on  Inf.  49. 
eks  to  disaffirm  the  infant's  cont. 
•  i  '  'd  party  on  the  contr 

■  not  denied.  The  p 
iic  Loatract  belongs  to  the  in'  i 
:;rcise  it  for  him.  The  mere  - 
id  and  proved,  is  not  a  denial  of 
he  infant,  for  it  may  be  based  on 
validity  of  the  patent,  fraudulent 

:d  in  the  court  of  common  pleas 


Jon,  64  id. 


I 


TORTS.  415 

NEWPORT  AND  Another  v.  SMITH. 
1895.     Supreme  Court  of  Minnesota.     61  Minn.  277. 

Mitchell^  J. — This  action  was  brought  to  recover  damages  on 
the  ground  that  the  defendant,  assuming  to  be  the  agent  of  his 
mother,  made  a  contract  in  her  name  which  was  not  binding  upon 
her  by  reason  of  the  fact  that  it  was  unauthorized  by  her. 

The  ground  and  form  of  the  professed  agent's  HabiHty  in  such 
cases  has  been  the  subject  of  discussion,  but  all  the  authorities  are 
agreed  that  he  is  liable  in  damages  to  the  person  dealing  with  him 
upon  the  faith  that  he  possessed  the  authority  assumed.  Sheffield  v. 
Ladue,  16  Minn.  346  (388)  ;  Jefts  v.  York,  10  Cush.  392;  Baltzen  v. 
Xicolay,  53  N.  Y.  467;  Mechem,  Ag.  §§  541-545.  But  in  whatever 
phase  the  question  has  arisen,  or  whatever  diverse  views  the  courts 
may  entertain  as  to  the  precise  ground  of  the  liability  or  form  of  the 
remedy,  all  the  authorities  are  agreed  that,  to  give  a  party  a  legal 
remedy  against  the  professed  agent,  he  must  have  been  ignorant  of 
the  want  of  authority,  and  have  acted  upon  the  faith  of  the  repre- 
sentations, express  or  implied,  that  the  professed  agent  had  the  au- 
thority assumed.  Hence  the  law  is  that  when  the  professed  agent, 
acting  in  good  faith,  fully  discloses  to  the  other  party,  at  the  time, 
all  the  facts  and  circumstances  touching  the  authority  under  which 
he  assumes  to  act,  so  that  the  other  party,  from  such  information  or 
otherwise,  is  fully  informed  as  to  the  existence  and  extent  of  his 
authority,  he  cannot  be  held  liable.  Mechem,  Ag..  §  546,  and  cases 
cited. ^ 


Section  2. — Torts. 

SWIM  V.  WILSON. 

1891.     Supreme  Court  of  California.     90  Cal.  126. 

De  Haven,  J. — The  plaintiff  was  the  owner  of  one  hundred  shares 
of  stock  of  a  mining  corporation,  issued  to  one  H.  B.  Parsons,  trustee, 
and  properly  endorsed  by  him.  This  stock  was  stolen  from  plaintiff 
by  an  employee  in  his  office,  and  delivered  for  sale  to  the  defendant, 

^  "It  is  material  in  such  cases  that  the  partj-  complaining  of  a  want  of  au- 
thority' in  the  agent  should  be  ignorant  of  the  truth  touching  the  agency.  If 
he  has  a  full  knowledge  of  the  facts,  or  of  such  facts  as  fairly  and  fully  put 
him  upon  inquiry  for  them,  and  he  fails  to  avail  himself  of  such  knowledge, 
or  the  means  of  knowledge  reasonably  accessible  to  him,  he  cannot  say  he  was 
misled,  simply  on  the  ground  that  the  party  assumed  to  act  as  agent  without 
authority,  in  the  absence  of  fraud."  Osborn,  C.  J.,  in  Newman  v.  Sylvester, 
42  Ind.  106,  113. 


4l6  LIABILITY    TO    THIRD    PARTY. 

who  was  engaged  in  the  business  of  buying  and  selHng  stocks  on 
commission.  At  the  time  of  placing-  the  stock  in  defendant's  posses- 
sion, the  thief  represented  himself  as  its  owner,  and  the  defendant, 
relying  upon  this  representation,  in  good  faith,  and  without  any  no- 
tice that  the  stock  was  stolen,  sold  the  same  in  the  usual  course  of 
business,  and  subsequently,  still  without  any  notice  that  the  person  for 
whom  he  had  acted  in  making  the  sale  was  not  the  true  owner,  paid 
over  to  him  the  net  proceeds  of  such  sale.  Thereafter  the  plaintiff 
brought  this  action  to  recover  the  value  of  said  stock,  alleging  that 
the  defendant  had  converted  the  same  to  his  own  use,  and  the  facts 
as  above  stated  appearing,  the  court  in  which  the  action  was  tried 
gave  judgment  against  defendant  for  such  value,  and  from  this  judg- 
ment, and  an  order  refusing  him  a  new  trial,  the  defendant  appeals. 

It  is  clear  that  the  defendant's  principal  did  not,  by  stealing  plain- 
tiff's property,  acquire  any  legal  right  to  sell  it,  and  it  is  equally  clear 
that  the  defendant,  acting  for  him.  and  as  his  agent,  did  not  have  any 
greater  right,  and  his  act  was  therefore  wholly  unauthorized,  and  in 
law  was  a  conversion  of  plaintift"'s  property. 

"It  is  no  defense  to  an  action  of  trover  that  the  defendant  acted  as 
the  agent  of  another.  If  the  principal  is  a  wrongdoer,  the  agent  is  a 
wrongdoer  also.  A  person  is  guilty  of  a  conversion  who  sells  the 
property  of  another  without  authority  from  the  owner,  notwithstand- 
ing he  acts  under  the  authority  of  one  claiming  to  be  the  owner,  and 
is  ignorant  of  such  person's  want  of  title."  Kimball  v.  Billings,  55 
Me.  147,  92  Am.  Dec.  581 ;  Coles  v.  Clark,  3  Cush.  399 ;  Koch  v. 
Branch,  44  Mo.  542,  100  Am.  Dec.  324. 

In  Stephens  v.  Elwell,  4  Maule  &  S.  259,  this  principle  was  applied 
where  an  innocent  clerk  received  goods  from  an  agent  of  his  em- 
ployer, and  forwarded  them  to  such  employer  abroad,  and  in  render- 
ing his  decision  on  the  case  presented.  Lord  Ellenborough  uses  this 
language :  "The  only  question  is,  whether  this  is  a  conversion  in  the 
clerk,  which  undoubtedly  was  so  in  the  master.  The  clerk  acted 
under  an  unavoidable  ignoranc-e  and  for  his  master's  benefit  when  he 
sent  the  goods  to  his  master ;  but,  nevertheless,  his  acts  may  amount 
to  a  conversion ;  for  a  person  is  guilty  of  conversion  who  intermed- 
dles with  my  property,  and  disposes  of  it,  and  it  is  no  answer  that  he 
acted  under  the  authority  of  another  who  had  himself  no  authority  to 
dispose  of  it." 

To  hold  the  defendant  liable,  under  the  circumstances  disclosed 
here,  may  seem  upon  first  impression  to  be  a  hardship  upon  him.  But 
it  is  a  matter  of  every-day  experience  that  one  cannot  always  be  per- 
fectly secure  from  loss  in  his  dealings  with  others,  and  the  defendant 
here  is  only  in  the  position  of  a  person  who  has  trusted  to  the  honesty 
of  another,  and  has  been  deceived.  He  undertook  to  act  as  agent  for 
one  who,  it  now  appears,  was  a  thief,  and,  relying  on  his  representa- 
tions,  aided   his   principal  to   convert  the   plaintiff's   property   into 


TORTS.  417 

jn- 

•  er- 


■e  Min.  (. 
J  ev  Min.  Lc 


k 


■    question  iir  ;«  th^  <"?.?e  - 

.  312.    In  tli: 
ad  made  a  sa";^ 
laid  him  the  proceeds 

T  whor"i 

;>n>cK,  V.  :^:   1::  '..'.  '  '    ■' ,.  ^ony,  no  ' 

.  rendered  a^c^ainst  Iniii.  settled  r. 

I  action  of  trover,  to  vviiich  the  present  aolioii 

.me  conckision  was  reached  in  Kimball  v.  Billings,  55  Me. 
\m.  Dec.  -'^T  ^^<  nr.mr— fv  SO  id  in  that  case  by  the  agent  be- 
ii  govern:  \ble  to  bearer.     The  court  there 

—  •*  it  any  in-c!;--  u!;il  ihe  property  sold  was  government 
■  to  bearer.  The  bona  fide  purchaser  of  a  stolen  bond 
rer  might  perhaps  defend  ven  the  true 

there  is  no  rule  of  law  ;  .nitv  t"  ''• 

I  he  thief  in  such  cases,  nor  to  the  agi. 

,,.     *    *    *    The  niH"  ■.••'  i  1  a  -inji''  Mui" 
n  notes  and  V 
'1'-.-  not  bojh 
over  no 


■flis  stolen  prup<- 

^  ,'.ip/  other  mer 

iority. 

;•  .  '1  fronT  li 

!he  amount  1 


Alii 


aiission.    At  the  time 
'  ^  thief  repre?/-'-' 
]ion  this  rep; 
the  stoc- 
and  sub^ 
■■ii  iie  had  aci 
"  to  him  the  - 
Drought  this 
"he  deferi'-'-^' 
as  above 


...aig-  stocks  on 

endant's  posses- 

d  the  defendant, 

without  anv  no- 

'.-  of 

•  for 


.  ;;ng  that 
'.Mi  the  facts 
in  was  tried 
'in  this  judg- 
nt  appeals, 
leahng  plain- 
equally  clear 
did  not  have  any 
athorized,  and  in 

lant  acted  as 

ae  agent  is  a 

oii  who  sells  the 

er,  notwithstand- 

ot  one  claiming  to  be  the  owner,  and 

.,  -  ,-,+    ;ti,. '      Vimball  v,  Billings,  55 

,  Cush.  399 ;  Koch  v. 


lei 


•  ^>i  under  the  .' 
•.         -e  of  it." 

T'  '.-.Id  the  f= 
jieit^.  may  seem  ii; 
it  is  a  matter  of  c 


(vf  anotiier,  and  has  b 

I  )iu^   \\  'I'l.  it  1:.  ;W  aDTV 


principle  was  applied 

• 

an  agent  of  his  em- 

''■■rr.ac\,  and  in  render- 

>orough  uses  this 

. 

conversion  in  the 

Tiie  clerk  acted 

'  benefit  when  he 

ii-ts  may  amount 

■ho  intermed- 

J 

..iswer  that  he 

>  authority  to 

:es  disclosed 

iijnm  him.    B-i* 

1 

■t  always  be  p 

'be  defend'! :)•; 

'.i' 

..  the  hf>nf  ""' 

.•■* 

act  as  :  . 

n.  his  rej 

:he  plaintiff's  property  into 

-■i' 

TORTS.  417 

money,  and  it  is  no  greater  hardship  to  require  him  to  pay  to  the 
plaintiff  its  vakie  than  it  would  be  to  take  the  same  away  from  the  in- 
nocent vendee,  who  purchased  and  paid  for  it.  And  yet  it  is  univer- 
sally held  that  the  purchaser  of  stolen  chattels,  no  matter  how  inno- 
cent or  free  from  neglig-ence  in  the  matter,  acquires  no  title  to  such 
property  as  against  the  owner ;  and  this  rule  has  been  applied  in  this 
court  to  the  case  of  an  innocent  purchaser  of  shares  of  stock.  Bar- 
stow  V.  Savage  Min.  Co.,  64  Cal.  388,  49  Am.  Rep.  705 ;  Sherwood  v. 
Meadow  Valley  Min.  Co.,  50  Cal.  412. 

The  precise  question  involved  here  arose  in  the  case  of  Bercich  v. 
Marye,  9  Nev.  312.  In  that  case,  as  here,  the  defendant  was  a  stock- 
broker who  had  made  a  sale  of  stolen  certificates  of  stock  for  a  stran- 
ger, and  paid  him  the  proceeds.  He  was  held  liable ;  the  court,  in  the 
course  of  its  opinion  saying:  "It  is  next  objected  that  as  the  defend- 
ant was  the  innocent  agent  of  the  person  for  whom  he  received  the 
shares  of  stock,  without  knowledge  of  the  felony,  no  judgment  should 
have  been  rendered  against  him.  It  is  well  settled  that  agency  is  no 
defense  to  an  action  of  trover,  to  which  the  present  action  is  anal- 
ogous." 

The  same  conclusion  was  reached  in  Kimball  v.  Billings,  55  Me. 
147,  92  Am.  Dec.  581,  the  property  sold  in  that  case  by  the  agent  be- 
ing stolen  government  bonds,  payable  to  bearer.  The  court  there 
said :  "Nor  is  it  any  defense  that  the  property  sold  was  government 
bonds  payable  to  bearer.  The  bona  Ude  purchaser  of  a  stolen  bond 
payable  to  bearer  might  perhaps  defend  his  title  against  even  the  true 
owner.  But  there  is  no  rule  of  law  that  secures  immunity  to  the 
agent  of  the  thief  in  such  cases,  nor  to  the  agent  of  one  not  a  bona 
fide  holder.  *  *  *  The  rule  of  law  protecting  bona  fide  purchasers 
of  lost  or  stolen  notes  and  bonds  payable  to  bearer  has  never  been  ex- 
tended to  persons  not  bona  fide  purchasers,  nor  to  their  agents." 

Indeed,  we  discover  no  difference  in  principle  between  the  case  at 
bar  and  that  of  Rogers  v.  Huie,  i  Cal.  429,  54  Am.  Dec.  300,  in  which 
case,  Bennett,  J.,  speaking  for  the  court,  said:  "An  auctioneer  who 
receives  and  sells  stolen  property  is  liable  for  the  conversion  to  the 
same  extent  as  any  other  merchant  or  individual.  This  is  so  both 
upon  principle  and  authority.  Upon  principal,  there  is  no  reason  why 
he  should  be  exempted  from  liability.  The  person  to  whom  he  sells, 
and  who  has  paid  the  amount  of  the  purchase-money,  would  be  com- 
pelled to  deliver  the  property  tO'  the  true  owner  or  pay  him  its  full- 
value,  and  there  is  no  more  hardship  in  requiring  the  auctioneer  to 
account  for  the  value  of  the  goods,  than  there  would  be  in  compelling 
the  right  owner  to  lose  them,  or  the  purchaser  from  the  auctioneer  to 
pay  for  them." 

It  is  true  that  this  same  case  afterwards  came  before  the  court,  and 
it  was  held,  in  an  opinion  reported  in  Rogers  v.  Huie,  2  Cal.  571,  56 
27 — Reinhard  Cases. 


4l8  LIABILITY    TO    THIRD    PARTY. 

Am,  Dec.  363,  that  an  auctioneer  who  in  the  regular  course  of  his 
business  receives  and  sells  stolen  goods,  and  pays  over  the  proceeds 
to  the  felon  without  notice  that  the  goods  were  stolen,  is  not  liable  to 
the  true  owner  as  for  a  conversion.  This  latter  decision,  however, 
cannot  be  sustained  on  principle,  is  opposed  to  the  great  weight  of 
authority,  and  has  been  practically  overruled  in  the  later  case  of 
Cerkel  v.  Waterman,  63  Cal.  34.  In  that  case  the  defendants,  who 
were  commission  merchants,  sold  a  quantity  of  wheat,  supposing  it 
toi  be  the  property  of  one  Williams,  and  paid  over  to  him  the  proceeds 
of  the  sale,  before  they  knew  of  the  claim  on  the  plaintiff  in  that 
action.  There  was  no  fraud  or  bad  faith,  but  the  court  held  the  de- 
fendants there  liable  for  the  conversion  of  the  wheat. 

It  was  the  duty  of  the  defendant  in  this  case  to  know  for  whom 
he  acted,  and,  imless  he  was  willing  to  take  the  chances  of  loss,  he 
ought  to  have  satisfied  himself  that  his  principal  was  able  to  save  him 
harmless  if  in  the  matter  of  his  agency  he  incurred  a  personal  liability 
by  the  conversion  of  property  not  belonging  to  such  principal. 

Judgment  and  order  affirmed. 

Garoutte,  J.,  McFarland,  J.,  and  Sharpstein,  J.,  concurred. 

Beatty,  C.  J.,  and  Paterson,  J-,  dissented. 

Rehearing  denied.^ 


JENNE  V.  SUTTON. 
1 88 1.     Supreme  Court  of  New  Jersey.     43  N.  J.  L.  257. 

Beasley,  C.  J. — This  action  was  brought  to  recover  damages  for 
hurts  received  by  the  plaintiff  by  the  bursting  of  a  bomb  fired  in  one 
of  the  public  streets  of  Jersey  City.  As  the  use  of  a  public  highway 
as  a  place  in  which  to  fire  such  an  explosive  was  illegal,  and  per  se 
constitutes  a  public  nuisance,  there  can  be  nO'  question  with  respect 
to  the  legal  liability  of  all  persons  concerned  in  the  doing  of  such  act, 
or  who  caused  or  procured  it  to  be  done,  for  all  the  damages  proxi- 
mately resulting.  The  only  debatable  question,  therefore,  seems  to  be 
whether  the  evidence  sufficiently  connected  the  plaintiff  in  error,  John 
F.  Jenne,  with  this  illegal  transaction.  When  the  case  was  rested  at 
the  trial  by  the  plaintiff,  an  exception  was  taken  to  the  refusal  of  the 
trial  judge  to  nonsuit;  and  it  is  in  this  respect  that  the  injury  just 
alluded  to  arises.  Was  there  any  evidence  on  this  head  on  which  the 
jury  could  legally  found  a  verdict  against  this  defendant? 

My  examination  of  the  case  has  led  me  to  conclude  that  there  was 
evidence  of  this  character,  to  this  measure:  such  testimony  was  not 
entirely  demonstrative,  but  it  seems  to  have  made  up  a  prima  facie 

^Accord:  McPheters  v.  Page,  83  Me.  234;  Koch  v.  Branch,  44  Mo.  542.  But 
see  Lewthold  v.  Fairchild,  35  Minn.  99. 


I 


which  : 
Jennc. 
neeting  on  i. 
.     ..^  Pavonia  Cli 
d  by  private  subscrii 


•  L-  reque- 
'ii;'  order  ,  _ 
.er  I  receive." 


The  fire-work c  ..,  ._;....  ''""meet- 

Ki.      1  a  political  club,  kno  .me  of 

]'.',;  I  ia  Club.    The  place  c  n- 

!i  (     '  the  Catholic  Institute  :il 

g-s,  and  in  a  pu^  "  which  :  as 

e  customary  to  i:  Tennc.  n 

error,  was  the  pre.- 

f[-i(:=rii>n  was  adver..    , 

■es  of  the  fire-wo 

pel.-'' '  who  fired  the  firc-\-,  mi^ 

vendor  of  the  fire-works,  and  be 

rel  ?  fcGee  came  and  ordered   . 

T'  '"'ri^  F.  Jenne  for  the  Pavonia  ' 

]]■'      -  ■         '■■  .]]e  fire-w 

■  '.  '    ■■•  .    -r     ■   .   ,     i-:.,  when  T 

V       •  fire-VvOrks'  on  the  st'' 
'}■'■■     A^"    Speaking  of  the  rii.-  .   't  .k„    ~ 

'   .  ■'  . se ;  he  ])aid  twelve  dollar 

bill.  '    He  further  said :  "I  went  because  it  was  asKea  Lliai:  a  coinpciei., 
tppn  be  sent." 

.  in  my  judgment,  here  was  an  amount  of  evidence  which 
jned  would  justify  the  finding  that  this  defendant  so  partici- 
:  a  this  affair  as  to  make  him  answerable  for  the  consequences. 

icGee's  statements  were  not  objected  to,  and  such  statements, 
i  nection  with  the  fact  that  the  defendant  paid  the  bill  for  the 

;.  '        >rks  so  ordered,  and  for  tl  '  '  s  of  the  man  wh' 

^'  <  ■.     'lad  a  strong  te'^l^nrv  to  the  defendant.  •> 

•.'  V  that  he  or  ..- 

I,  '  the  place  in 

V  ,  intended  that  these  expi 

ill"-!-,  •  3s  the  usual  place    .., 
1  an  act  and  purpose 
,  Tor  it  can  . '       ''       ^  " 
acting  in  hi 
'  the  pav 
-wer  for 

nir  were  but  the  agents  of  other  perso 
.     ;.>e  made, 
idgment  be  affirmed.^ 

If  a  Mnit.h'':  servant  lames  a  hor  , 

.inst  the  mater  and  not  against  ^ 
ness  of  this  ;s  questioned  by  Co" 


llai.]ij"v  to 


Am. 

Dec.  363,  that 

;^ss  receives  rs- 
felon  withoi- 
le  ouiier  a;^ 

r  be  sustain  f 

'itv,  arif' 

1  V.  W?^' 

an 

auction 

were 
to  be 
of  th 

com  I 

th"  ■ 

I- 

4,''ular  course  of  his 

er  the  proceeds 

is  not  liable  to 

n.  li.owever, 

L  weight  of 

iier  case  of 

l.Tiits,  who 

sing  it 

ii    .i'.,  proceeds 

plaintiff  in  that 

court  held  the  de- 

iieat. 

abC  to  know  for  whom 

the  chances  of  loss,  he 

pal  was  able  to  save  him 

.  ...curred  a  personal  liai-iiir^ 

onging  to  such  principal 


seated. 


J.,  concurred. 


257- 


i 


01  Ul./ 
as  a  p' 
ronstif- 
to  the  i^  - 
or  who  ca: 
niately  resu  u.. 
whether  the  ev . 
F.  Jenne.  with 
the  trial  bv  the 


jury  could  iegfaliy 
T  T.  .^^^  ':imination 
i  this  cb 
tntiit-;     vicmonstraT 


.  .:^  ; .] >.i!,^:.i.  .._/  iLi^.wvvi  damages  loi 

the  bursting  of  a  bomb  fired  in  one 

use  of  a  public  highway 

was  illegal,  and  per  se 

■■>■>  question  with  respect 

in  the  doing  of  such  act, 

be  done,  tor  all  the  damages  proxi- 

■^.^r.  ,;,..•.,-".-.■,.  nv.>r..fare,  seems  to  be 

.>"  in  error,  John 

'lit    ase  was  rested  at 

en  to  the  refusal  of  the 

the  injur}'  jr.- 

d  on  which  t. 

'?t  this  del  end  ant? 

.._  to  conclude  that  there  "vva- 

■asure :  such  testimony  was  not 

•    have  made  up  a  prima  far- 


4 


^Accord:   McPhetei 
ec  IvCwthold  V.  Fairc 


TORTS.  419 

case.  The  fire-works  in  question  were  intended  to  signalize  the  meet- 
ing of  a  political  club,  known  and  incorporated  under  the  name  of 
Pavonia  Club.  The  place  of  such  meeting  was  in  a  building  denom- 
inated the  Catholic  Institute,  where  it  was  customary  to  hold  political 
meetings,  and  in  a  public  street  in  front  of  which  building  it  was 
likewise  customary  to  exhibit  fireworks.  Mr.  Jenne,  the  plaintiff  in 
error,  was  the  president  of  this  club.  The  meeting  on  the  night  in 
question  was  advertised  in  the  name  of  the  Pavonia  Club,  but  the 
expenses  of  the  fire-works  were  raised  by  private  subscription.  The 
person  who  fired  the  fire-works  in  the  street  was  an  employee  of  the 
vendor  of  the  fire-works,  and  being  a  witness,  stated  that  one,  "Sam- 
uel McGee  came  and  ordered  the  exhibition  of  the  fire-works  for 
John  F.  Jenne  for  the  Pavonia  Club.  I  was  at  the  Catholic  Institute 
that  evening,  firing  off  the  fire-Avorks  at  the  request  of  John  F.  Jenne ; 
I  did  not  see  Mr.  Jenne  when  I  received  the  order ;  I  went  and  fired 
off  the  fire-works  on  the  strength  of  the  order  I  received  from  Mr. 
McGee."  Speaking  of  the  fire-works,  he  said :  "John  F.  Jenne  paid 
for  these ;  he  paid  twelve  dollars ;  my  services  were  included  in  that 
bill."  He  further  said  :  "I  went  because  it  was  asked  that  a  competent 
man  be  sent." 

Now,  in  my  judgment,  here  was  an  amount  of  evidence  which 
imexplained  would  justify  the  finding  that  this  defendant  so  partici- 
pated in  this  affair  as  to  make  him  answerable  for  the  consequences. 
Mr.  McGee's  statements  were  not  objected  to,  and  such  statements, 
in  connection  with  the  fact  that  the  defendant  paid  the  bill  for  the 
fire-works  so  ordered,  and  for  the  services  of  the  man  who  exploded 
them,  had  a  strong  tendency  to  implicate  the  defendant,  and  to  show 
not  only  that  he  ordered  the  goods,  but  that  he  procured  them  to  be 
used  at  the  place  in  question.  It  is  not  an  unreasonable  presumption 
that  he  intended  that  these  explosives  should  be  set  off  in  the  public 
street,  which  was  the  usual  place  on  the  occasions  of  the  meeting  of 
that  club.  Such  an  act  and  purpose  would  make  him  responsible  to 
the  plaintiff,  for  it  can  signify  nothing,  under  such  circumstances, 
that  he  was  acting  in  his  official  capacity  as  the  president  of  this  cor- 
poration, for  all  the  participants  in  the  creation  of  a  public  nuisance 
are  Hable  to  answer  for  its  ill  effects,  without  regard  to  the  fact  that 
they  in  such  affair  were  but  the  agents  of  other  persons.  There  was 
a  prima  facie  case  made. 

Let  the  judgment  be  affirmed.^ 

^  "If  a  smith's  servant  lames  a  horse,  while  he  is  shoeing  him,  an  action  lies 
against  the  master  and  not  against  the  servant."  ^  i  Bl.  Com.  431.  The  cor- 
rectness of  this  is  questioned  by  Cooley  in  his  edition  of  Blackstone,  on  page 

"Misfeasance  is  the  improper  doing  of  an  act  which  the  agent  might  lawfully 
do.  Where  an  agent  fails  to  use  reasonable  care  or  diligence  in  the  perform- 
ance of  a  duty,  he  will  be  personally  responsible  to  a  third  person  who  is  in- 
jured.   His  liability  in  such  cases  is  put  upon  the  ground  that  he  is  a  wrong- 


420  LIABILITY    TO    THIRD    PARTY. 

i     ""   BROWN  PAPER  COMPANY  v.  DEAN. 

1877.     Supreme  Judicial  Court  of  Massachusetts.     123  Mass. 

267. 

Tort  for  the  obstruction,  from  July  3,  1873,  to  March  3,  1875,  of 
the  machinery  of  the  plaintiff's  mills  in  Adams,  by  water  set  back  by 
a  dam  built  by  Horatio  N.  Dean,  in  i860,  lower  down  the  stream. 
Writ  dated  March  3,  1875.  The  case  was  tried  in  the  superior  court, 
before  Dewey,  J.,  with  the  preceding  case,  who  reported  it  for  the 
consideration  of  this  court  in  substance  as  follows : 

The  plaintiff  corporation  was  duly  organized  on  June  11,  1873,  and 
the  mill  property  and  rights  of  the  firm  of  Levi  L.  Brown  and  others 
were  duly  conveyed  to  the  plaintiff.  Horatio  N.  Dean  died  intestate 
on  August  15,  1872  ;  and  after  his  decease  the  defendant,  who  was  his 
son  and  co-partner,  continued  to  carry  on  the  mill  business  in,  the 
same  manner  it  had  been  previously  carried  on,  until  January  6,  1873, 
when  the  heirs  of  Horatio  N.  Dean  conveyed  the  mill  property  to 
the  widow  and  daughters  of  Horatio  N.,  and  after  that  date  the 
business  of  the  mills  was  carried  on  by  the  defendant  on  their  ac- 
count, and  acting  as  their  agent,  he  having  a  power  of  attorney  from 
them,  dated  January  6,  1873,  the  material  parts  of  which  are  printed 
in  the  margin. 

The  defendant  contended  that  on  these  facts  he  was  not  personally 
liable  for  any  damages  arising  from  maintaining  the  dam  as  alleged, 
and  took  the  same  exceptions  as  in  the  preceding  case,  excepting  that 
relating  to  the  survival  of  the  action.  The  jury  returned  a  verdict 
for  the  plaintiff.  If  the  exceptions  in  the  preceding  case  were  sus- 
tained upon  any  other  ground,  except  that  no  action  for  the  alleged 
cause  could  be  maintained  against  an  administrator,  then  the  verdict 
in  this  case  was  to  be  set  aside,  and  the  case  stand  for  a  new  trial.  If 
those  exceptions  were  not  sustained  for  any  other  cause,  judgment 
was  to  be  entered  on  the  verdict  in  this  case,  unless  the  court  should 
be  of  the  opinion  that,  upon  the  facts  herein  stated,  this  action  could 
not  be  maintained  against  the  defendant,  in  which  case  the  verdict 
was  to  be  set  aside,  and  the  judgment  entered  for  the  defendant. 

In  the  case  at  bar,  the  dam  complained  of  was  erected  by  Horatio 
N.  Dean  in  his  lifetime,  while  owner  of  the  property,  to  supply 
water  for  the  use  of  his  tannery.  The  defendant  had  nothing  to  do 
with  its  construction.     Before  the  time  covered  by  the  declaration  in 

doer,  and,  as  such,  responsible."     Russell,  J.,  in   Southern  Ry.  v.   Rowe,  59 
S.  E.  (Ga.)  462,  467. 

"In  torts  the  relation  of  principal  and  agent  does  not  exist;  they  are  all 
wrongdoers,  and  may  be  sued  jointly  or  separately."  Franklin,  C,  in  Berghoff 
V.  McDonald,  87  Ind.  549,  559.  In  Phelps  v.  Wait,  30  N.  Y.  78,  it  was  held  that 
principal  and  agent  may  be  sued  jointly  for  the  negligence  of  the  latter.  The 
contrary  was  held  in  Parsons  v.  Winchell,  5  Cush.  (Mass.)  592. 


ih 


{'.\r-  .--'-:.    .:      aio  A.  area,  via  Ti.t"  ■:  lo  ine 

i>'-eni;-^-       x    .;jne  the  agent  of  the  p  '  on  the 

I  A  the  tannery  fo:  -ley 

V  i.    During  the  ti;  '  i" 

the  height  or  structure  ot  . 
■-truoturc,  and  the  defe-T' 

ich  control  as  would 
-vtructuTe  erected  upon  .,!(. 
by  the  power  of  attornev.  -v- 
.  ■''  ing  and  tamv 

iie  defendant 
a  ir->ance  by  causing  backwat'. 
ner  .n  which  the  defendant  ha<  .  ..      ....    .  . 

created  by  the  dam  itself.  The  ■  inplained  of 

s1t"-v  n.  by  the  facts  reported,  to  u.. .      leen  caused  b 
'i;'  '.lant,  authorized  or  unauthorize-xd.  connected 
t :-.     ion  or  maintenance  of  the  ,  '»struction.    Carietcn 

i^:'    !1.  I  Foster  291;  Noyes  v.  .1,  24  Conn.  15;  Pills:;    . 

•,  44  Me.  154. 

:  '.ell  V.  Josselyn,  3  Gray  309,  cited  by  the  plaintiff,  there  was  a 
j>"      ve  act  of  negligence  on  the  part  of  the  agent  who  had  charge  of 

■    :  uilding,  from  which  the  plaintiffs  suffered,  and  not  from  a 
'"'      !ce  created  or  maintained  by  owners. 

m  W'amesit  Power  Co.  v.  Allen.  '     --.  352,  all  of  the  defend- 

ants actively  participated  in  the  wro  ,;ed. 

Judgment  for  the  defendant. 


y]lLT\:.'^  SWAN. 

iSS-i-     Supreme  Court 

B.  Chrism  AN,  Judge 
an  action  for  dar 

A.  V.  Feltus  an 
eclaration  avers 
Park,  and  that 

vn  as  Lochdale.  an 

'  rthecha:  as 

^nd  dCi'  'id 

more  ti!  •    •r, 

I"  said  pi:  .j-\v 

has  remained  t'^r  the  joint  protectior  rs,  and 

^f  has  always  i      •    ''■•*=•  custom,  ann  :>  have 

■  e  waters  frrr  time  collect!  .]  levee 

id  being  in  anti  \:.\     ■  iIk'  '  ' 


420  LIABILI 1 

BROWN  PAPER  COMP/v 

I.-„  'REME   Jt 


123  Mass. 


T'ORT  for  the  ob 

the  machinery  '^ 

a  daiii  built  bv 

Writ  dated 

before  De. 

considerate 

,  stance  -.t. 

The-^' 

'nly  org; 

the  m' 

lie  firm  0 

^\•■' 

:  iff.    Ho: 

01  i 

.-  deceas< 

j-ariic  nianr 

wlicn  the 

the  wid'~»v, 

businc.-. 

■    ■  \  ■-,'   ,■ 

cause  . 
in  thi>    . 
those  exct! 
was  to  l>e  'v-i. 
be  of  the  0])ini 
-"  '  ^  >  maintai. 
be  set  a 


March  3,  1875,  of 

water  set  back  by 

d^wn  the  stream. 

superior  court, 

■'■id  :t  for  the 


Brown  and  others 
'-  )ean  died  intestate 
udant,  who  was  his 
c  mill  business  in  the 
vntl]  Tanuary  6,  1873, 
vill  property  to 
.r  that  date  the 
the  defendant  on  their  ac- 
ic  liHving  a  power  of  attorney  from 
,'  material  parts  of  which  are  printed 

on  these  facts  he  was  not  personal! 

rom  maintaining  the  dam  as  alleged, 

lu  the  preceding  case,  excepting  that 

ction.     The  jury  returned  a  verdict 

•  ■  in  the  preceding  case  were  sus- 

!'t  that  no  action  for  the  alleged 

1  administrator,  then  the  verdict 

me  case  stand  for  a  new  trial.   If 

■  for  any  otlier  cause,  judgment 

bis  case,  unless  the  court  should 

-  herein  stated,  this  action  could 

•""*^,  in  which  case  the  verdirr 

.red  for  the  defendant, 

ted  by  Horati 
'•ty,  to  supp 


<;  such,  tl 
162,  467. 
he  relatii 
and  may  ' 
'.  87  Ind:  -■ 
['nnrii';ii  ''.n-i  agent  v 
contrary  was  held  in 


«  not  exist;  they 

nklin,  C,  in  Bcr^lijlf 
;'.  78,  it  was  held  that 

•x^  of  the  lattt        '  ' 
■3.)  592. 


TORTS.  421 

this  case,  Horatio  N.  died,  and  the  defendant,  having-  no  title  to  the 
premises,  became  the  agent  of  the  present  owners,  and  carried  on  the 
business  at  the  tannery  for  their  benefit  under  a  power  of  attorney 
from  them.  During  the  time  complained  of,  there  was  no  change  in 
the  height  or  structure  of  the  dam  in  question.  It  was  a  permanent 
structure,  and  the  defendant  had  neither  ownership,  possession,  nor 
such  control  as  would  authorize  him  to  change  or  remove  any  such 
structure  erected  upon  the  premises  by  the  owner.  The  defendant, 
by  the  power  of  attorney,  was  only  employed  to  carry  on  the  business 
of  purchasing  and  tanning  hides.  There  is  no  claim  that  the  premises 
of  which  the  defendant  had  charge,  and  which  were  not  in  themselves 
a  nuisance  by  causing  backwater,  had  become  a  nuisance  by  the  man- 
ner in  which  the  defendant  had  used  them.  The  nuisance  here  was 
created  by  the  dam  itself.  The  injury  complained  of  is  therefore  not 
shown,  by  the  facts  reported,  to  have  been  caused  by  any  act  of  the 
defendant,  authorized  or  unauthorized,  connected  with  either  the 
erection  or  maintenance  of  the  alleged  obstruction.  Carleton  v.  Red- 
ington,  I  Foster  291 ;  Noyes  v.  Stillman,  24  Conn.  15  ;  Pillsbury  v. 
Moore,  44  Me.  154. 

In  Bell  V.  Josselyn,  3  Gray  309,  cited  by  the  plaintiff,  there  w'as  a 
positive  act  of  negligence  on  the  part  of  the  agent  who  had  charge  of 
the  building,  from  which  the  plaintiffs  suffered,  and  not  from  a 
nuisance  created  or  maintained  by  owners. 

In  Wamesit  Power  Co.  v.  Allen,  120  Mass.  352,  all  of  the  defend- 
ants actively  participated  in  the  wrong-  charged. 

Judgment  for  the  defendant. 


FELTUS  ET  AL.  V.  SWAN. 
1884.     Supreme  Court  of  Mississippi.     62  Miss.  415. 

Hon.  J.  B.  Chrisman,  Judge. 

This  is  an  action  for  damages  brought  on  the  3d  of  September, 
1884,  by  J.  A.  V.  Feltus  and  others  against  D.  D.  Withers  and  B.  P. 
Swan.  The  declaration  avers  that  the  plaintiffs  own  a  plantation 
known  as  Deer  Park,  and  that  defendant  Withers  owns  an  adjoining 
plantation  known  as  Lochdale,  "which  is  and  has  been  for  more  than 
ten  years  past  under  the  charge  and  control  of  defendant  Withers,  as 
the  owner  thereof,  and  defendant  B.  P.  Swan  as  the  manager  and 
agent  thereof,  and  that  more  than  ten  years  ago  a  levee  was  built  by 
the  respective  owners  of  said  plantations,  and  from  thence  until  now 
has  remained  for  the  joint  protection  thereof  against  high  w^aters,  and 
it  has  always  been  the  custom,  and  plaintiffs  were  entitled  to  have 
the  waters  from  time  to  time  collecting  behind  and  back  of  said  levee 
and  being  in  and  upon  their  said  land,  from  rain,  sipage,  and  over- 


422  LIABILITY    TO    THIRD    PARTY. 

flow,  drained  and  carried  away  from  the  same  through  a  certain 
drain,  cut  and  run  around,  in,  and  through  said  Lochdale  plantation, 
and  thence  off  of  plaintiffs'  said  land,  and  that  it  was  the  duty  of 
defendants,  owning  and  occupying  the  adjoining  close  and  plantation 
aforesaid,  to  open  the  said  drain,  that  the  water  might  be  drained  off 
of  plaintiffs'  land  aforesaid,  and  plaintiffs'  land  could  only  be  drained 
through  defendants'  said  close  and  plantation ;  that  during  the  year 
1884,  from  the  ist  of  January  to  the  ist  of  September,  large  cjuan- 
tities  of  water,  from  rain,  sipage,  and  overflow,  collected  in  and 
driven  back  upon  plaintiffs'  land,  were  obstructed  and  prevented 
from  running  off  and  away  from  the  land  by  defendants  neglecting 
and  refusing  to  open  the  drain  aforesaid,  which  it  was  their  duty  to 
do,  and  by  reason  of  such  neglect  and  refusal  the  aforesaid  land  of 
plaintiffs  for  the  time  aforesaid  was  rendered  unfit  to  cultivate  and 
greatly  damaged,  etc." 

Swan  demurred  to  the  declaration  on  the  ground  that,  as  the  agent 
of  Withers,  he  was  not  liable  for  the  acts  of  omission  and  neglect 
averred  in  the  declaration.  The  court  sustained  the  demurrer,  and 
the  plaintiffs  asked  leave  to  amend  their  declaration  by  inserting 
words  therein  charging  that  the  neglect  and  refusal  which  it  was  de- 
clared produced  the  damage  to  the  plaintiffs  "was  malicious  and  with 
the  intention  of  injuring  the  plaintiffs'  aforesaid  lands."  The  court 
refused  to  grant  such  leave  and  dismissed  the  action  as  to  Swan.  The 
plaintiffs  dismissed  as  to  Withers  and  appealed  against  Swan. 

C.  P.  Neilson  and  D.  C.  Bramlett,  for  the  appellants. 

It  is  not  clear  that  the  injury  complained  of  is  a  mere  nonfeasance 
of  the  agent — in  fact,  it  occurs  to  us  that  we  charge  a  positive  wrong. 
This  must  be  apparent  to  any  one  acquainted  in  theory  or  fact  with 
the  levee  system  of  the  Mississippi  river.  In  times  of  high  water, 
back  of  all  or  nearly  all  levees  large  quantities  of  water  collect  to  the 
height  of  the  river  water  in  front,  and  this  back  water  must  be 
drained  off  as  the  river  recedes,  otherwise  it  is  more  damaging  than 
to  have  welcomed  the  overflow.  And  it  is  also  true  that  there  are 
natural  drains  in  many  sections  through  which  only  the  water  from  a 
large  area  of  land  may  be  carried  off.  But  whether  the  wrong  charge 
is  a  misfeasance  or  nonfeasance,  we  contend  that  it  is  an  exception 
to  the  general  rule  which  exempts  a  servant  from  personal  liability  to 
a  third  person  for  injuries  done  by  negligence  in  the  discharge  of  his 
duties. 

Here  is  a  most  flagrant  outrage  done,  causing  great  damage,  which 
was  alone  in  the  power  of  appellee  and  Withers  to  avert,  and  they 
are  equally  liable  under  the  declaration  here  and  were  properly  joined. 
See  I  Wait's  Actions  and  Defenses  264,  265  ;  Addison  on  Torts  (3d 
^^•)  933-  It  was  error  in  the  court  below  to  deny  our  application  to 
amend  our  declaration. 

Carson,  Shields  &  Carson,  for  the  appellee. 


: 


423 

..le  liabiJii  for  torts:, 

uion  between  act  .    i 

iV.-.>.iv;<j,  or  me'---     '■■'--  ,  3ix. 

former  case  (mi-  AAt  to 

IS,  although  ■  later 

e)  he  is  in  See 

:■',  ^§  ?p^ 

attan  B.- 
S  III;  I  C\- 

of  the  c 
l;  .ii:;  j'men'' '^ 
irely  new  an  : 

L,  C.  J.,  delivered  ..i  the  ^ 

'ke  bcins;  a  mere  jt  liable 

■•.icii>al.  ncy,  §§  308.  309 

...  ■  'j}>^\  ^i'^  Agency  396. 

:  amendment  iiave  made  the  dech' 

1  '.\  I'.ucver  motive  opucu^ju  •  ■.  me  agent,  the  charge  a. 
^  only  that  he  had  failed  to  do,  and  not  that  he  had  doi^ 

'",  and  for  nonfeasance  or  omission  to  act  at  aii  tiic 
-ble  only  to  his  employer. 


JJiLAiN   V.  JJKULiV  ET  AL. 


-The  appellant  broiu  iction  agaii: 

■2:e  E.  Brock,  Ro^  '    ^ 


cr  closet  or 


L  a  servant  is 
^•ruiv  V.  Manh- 


422 


LIABILITY    TO   THIRD   PARTY. 


flow,  drained  and  c 
'i;  and  run  a' 
ce  off  of  p: 
ts,  owning  ;. 
i,  to  open  tl"i 

ot  plaintiffs'  land  at- 

through  defenda"'- 

1884,  from  the  : 

tities  of  writ' 

driven  back 

from  vw  ' 

and  rcf!- 

do, 

plaii  .. 

greatly 


the 
words  !i 


the 

back  ■.. 
height  ' 
drained  oti 
to  have  wei 
natural  drai 
large  area  oi 
is  a  misfeasanc«? 
to  the  general  rv. 
a  third  person  fo 
duties. 

Here  is  a  most  flai, 

'  Me  in  the  po 

,Jly  liable  un(' 

See  1  Wait's  Action  ■ 

ed.)  933.    It  was  err 

ar.nend  our  declaration. 


ay  fron  ;  gh  a  certain 

'    '  'intation, 

'-nty  of 

-don 

.  ■{  off 

e  arained 

•^,  the  year 

.  large  quan- 

'ccted  in  and 

(id  prevented 

'ts  neglecting 

their  duty  to 

.;  refusal  the  aforesaid  land  of 

'endered  unlit-  <o  ndtivate  and 

M,  un  the  ground  i  ;.  :.  a-  the  agent 

:  the  acts  of  omission  and  neglecL 

'le  demurrer,  and 

M-^n  by  inserting 

ch  it  was  de- 

,    :ious  and  with 

..tiffs"  aforesaid  lands."    The  court 

-missed  the  action  as  to  Swan.  "^ '  "■ 

and  appealed  against  Swan. 

tt,  for  the  appellants. 

inplained  of  is  a  mere  nonfeasance 

•s  that  we  charge  a  positive  wronj:: 

ncnuainted  in  theory^  or  fact  witl: 

iver.     In  times  of  high  water, 

.    jLiantities  of  water  collect  to  tlK^ 

iit,  and  tins  back  water  must  be 

'  '  'wise  it  is  more  damaging  than 

]  it  is  also  true  that  there  arc 

:  h  which  only  the  water  from  a. 

P.rit  v.-hcthcT  *be  wrong  charge. 

an  exception 

lal  liability  to 

charge  of  hi- 

.it  damage,  whicl 
o  avert,  and  1' 
e  properly  j'  • 
?oii  on  Tort- 
jtir  applicati' 


TORTS.  423 

With  regard  to  the  HabiHty  of  agents  to  third  persons  for  torts, 
there  is  a  distinction  between  acts  of  misfeasance,  or  positive  wrongs, 
and  nonfeasance,  or  mere  omissions  of  duty.  Story  on  Agency  311. 
In  the  former  case  (misfeasance),  the  agent  is  personally  liable  to 
third  persons,  although  authorized  by  his  principal,  while  in  the  later 
(nonfeasance)  he  is  in  general  solely  liable  to  his  principal.  See 
Story  on  Agency,  §§  308,  309;  see  also,  Story  on  Bailments,  §  404; 
Denny  v.  ^Manhattan  Bank,  2  Denio  115;  Shearman  &  Redfield  on 
Negligence,  §  iii ;  i  Chitty  Pleadings,  75,  yy. 

We  hold  that  the  allov/ance  of  amendments  to  declarations  is 
within  the  discretion  of  the  court,  and  we  think  the  court  did  not  err 
in  disallowing  the  amendment  in  this  case,  for  it  is  evident  that  it 
made  an  entirely  new  and  different  action. 

Campbell,  C.  J.,  delivered  the  opinion  of  the  court. 

The  appellee  being  a  mere  agent  was  not  liable  for  an  omission  of 
duty  except  to  his  principal.  Story  on  Agency,  §§  308,  309 ;  Wharton 
on  Agency,  §§  535,  536 ;  Dunlap's  Paley's  Agency  396. 

The  proposed  amendment  would  not  have  made  the  declaration 
good,  for  v/hatever  motive  operated  on  the  agent,  the  charge  against 
him  was  only  that  he  had  failed  to  do,  and  not  that  he  had  done  any- 
thing maliciously,  and  for  nonfeasance  or  omission  to  act  at  all  the 
agent  is  answerable  only  to  his  employer. 

Affirmed.  1 


DEAN  V.  BROCK  et  al. 

1894.     Appellate  Court  of  Indiana,     ii  Ind.  App.  507. 

Ross,  J. — The  appellant  brought  this  action  against  William  P. 
Brock,  George  E.  Brock,  Robert  F.  Catterson  and  George  N.  Catter- 
son,  alleging,  in  substance,  that  William  P.  Brock  was  the  owner  of 
certain  real  estate  in  the  city  of  Indianapolis,  upon  which  was  situated 
a  dwelling  house  and  other  necessar}-  outbuildings,  among  which  was 
a  building  used  as  a  "water  closet  or  privy"  ;  that  the  Cattersons  were 

^  "A  mere  nonfeasance,  or  neglect  to  perform  a  duty,  however  wrongful  such 
negligence  may  be,  cannot  constitute  a  technical  trespass,  which  is  a  positive 
act  of  misfeasance  accompanied  with  force."  Scott,  J.,  in  Henshaw  v.  Noble, 
7  Ohio  St.  226,  231. 

To  the  effect  that  a  servant  is  not  liable  for  nonfeasance,  see  Reid  v.  Hum- 
ber,  49  Ga.  207;  Denny  v.  Manhattan  Co.,  2  Denio  (N.  Y.)  115. 

"The  term  'nonfeasance'  refers  to  the  omission  on  the  part  of  the  agent  to 
perform  a  dutj'  which  he  owes  to  his  principal  by  virtue  of  the  relationship 
existing  between  them  ;  but,  whenever  the  omission  on  the  part  of  the  agent 
consists  of  his  failure  to  perform  a  duty  which  he  owes  to  third  persons,  then, 
as  to  such  third  persons,  his  omission  amounts  to  'misfeasance,'  for  which 
he  is  responsible."  Holloway,  J.,  in  Hagerty  v.  Montana  Ore  Co.,  38  Mont. 
69,  76.   See  also  Cincinnati,  etc.,  Ry.  Co.  v.  Robertson,  115  ICy.  858. 


424  LIABILITY    TO    THIRD    PARTY. 

employed  as  the  agents  of  William  P.  Brock  to  look  after  and  rent 
said  dwelling,  collect  the  rents,  pay  the  taxes  and  make  the  necessary 
repairs  to  keep  the  same  in  a  tenantable  condition ;  that  on  or  about 
June  17,  1892,  appellant  rented  said  dwelling  from  the  Cattersons  and 
took  immediate  possession,  and  was  still  in  such  possession  at  the 
commencement  of  this  action,  August  24,  1892 ;  that  the  sills  and 
joists  under  the  floor  of  said  water  closet  "were  rotted  and  decayed, 
and  had  not  been  replaced,  examined  or  repaired  for  more  than 
twenty  years;  all  of  which  said  defendants  (appellees)  well  knew, 
but  plaintiff  (appellant)  was  ignorant  thereof;"  that  on  the  31st  day 
of  July,  1892,  while  appellant  was  rightfully  in  the  building,  the  floor 
broke  through,  injuring  her,  etc. 

There  are  other  allegations  charging  that  it  was  the  duty  of  the 
appellees  to  ascertain  and  know  the  condition  of  the  building,  and  to 
keep  it  in  suitable  repair,  etc.,  but  we  deem  it  unnecessary,  in  the 
determination  of  this  case,  to  set  them  out. 

The  appellees  William  P.  Brock  and  George  E.  Brock  did  not  ap- 
pear, and  the  record  does  not  show  that  process  was  ever  served  upon 
them. 

The  appellees,  the  Cattersons,  filed  a  joint  demurrer  to  the  com- 
plaint, which  was  sustained  by  the  court,  and  this  ruling  presents  the 
only  question  for  our  consideration. 

The  contention  of  counsel  is  that  the  Cattersons,  who  were  the 
agents  of  William  P.  Brock,  were  guilty  of  negligence  in  failing  to 
make  this  building  safe  for  the  use  for  which  it  was  intended ;  that 
"their  negligence  was  misfeasance,  and  not  mere  nonfeasance." 

We  think  covmsel's  contention  untenable.  An  agent,  while  obeying 
the  command  or  performing  the  service  of  the  principal,  is  not 
justified  in  committing  a  tort,  and  if  he  does,  not  only  the  principal 
but  the  agent,  may  be  made  to  answer  in  damages  therefor.  But 
where  a  duty  rests  on  the  principal  and  not  on  the  agent,  its  non- 
performance by  the  latter  creates  no  liability  against  him.  if  injury  re- 
sults. True  he  may  owe  a  duty  tO'  the  principal  to  faithfully  dis- 
charge his  duties  as  agent,  but  he  owes  no  duty  to  others  except  that 
in  the  performance  of  those  duties  he  shall  not  do  anything  which  will 
cause  injurv  to  them.  If  the  agent  fails  to  perform  a  duty  which  he 
owes  to  the  principal,  and  by  reason  of  such  non-performance  or 
neglect  of  duty  a  third  person  sustains  injury,  no  action  can  be  main- 
tained against  the  agent  by  such  third  person  on  account  thereof. 
Mechem  on  Agency,  §  539 ;  Bishop  Noncontract  Law,  §  695 ;  Cran- 
dall  V.  Loomis,  56  Vt.  664 ;  i  Am.  &  Eng.  Ency.  Law  406,  and  cases 
cited. 

Great  confusion  has  apparently  crept  into  many  cases  from  a  fail- 
ure to  observe  the  proper  distinction  between  nonfeasance  and  mis- 
feasance. Nonfeasance  is  the  failure  to  do  that  which  one  by  reason 
of  his  undertal<ing,  and  not  because  imposed  upon  him  as  a  legal 


of  his  r' 

on  the  '■  '  tiiai 

1  as  a  di:'  '■("jper 


"torman 

■'h  it  is  ....    ..... 

as  not  to  ca 

■i'...>e  such  cr'- 
it  in  an  unc( 


';         -..:_,  however,  canncL  .  .  ne  of  nv 

cau-'.  the  appellees,  the  Cattersoii 

' nert}-  in  repair  and  .safe  f'.*!   ■.r.  ii..iLiici  luu  .ncv.  . 

irs,  do  so  in  a  negligent  manner.    The)-  simply  ne 
for  their  principal  the  dtiLy  which  he  owed  to  hib  t"- 
ilure  to  do  was  merely  a  nonfeasance  and  not  a  misfea 

counsel  are  all  cases  where  the  agent  was  iield 
c.    In  none  of  those  cases  did  the  court  hold  that 
;t  was  liable  for  failing  to  perform  a  duty  owing  from  the 
J  to  another  who  was  injured  by  reason  of  such  neglect  of 
dut.      That  when  an  agent  owes  a  dutv  and  one  to  whom  the  dijtv  is 
.  injured  by  reason  of  tlir  to  perform,  s 

li^^le   does  not  admit  '~>+  f*"""  he  i?  11:: 

:t  to  perfor- 
cter.    Not  so, 
ot  1' ».  principal,  to  perform  the 

omplaint  stated  no  cause 

affimTpfi. 

^94;  pet- 


4^4                           lUbilitv 

lliD    PARTY. 

1  as  the  agents  c 

..clling,  collect  t'->'' 

ii-pairs  to  keep  the  ^ 
June  17,  1S92.  apT'  ' 
took  immediate 

and  rent 

■ic  necessary 

.!^  on  or  about 

rsons  anti 

VI T  pt  tbf 

tii'i-:nicncement  < 
j'.>i:;ts.  under  the  ; 
and  had  no' 
twenty  year- 
but  plaintiff 
of  July.  -^^ 
broke  t! 
T'    ' 

.=^et  "w^- 

.ore  than 
)    >vell  knew 
•  the  31st  da> 
'ing.  the  floor 

•  ihe  duty  of  th.- 
0  building,  and  t' 
!  necessary,  in  thr 

k  did  not  ap 
1  served  upoi 

to  the  com 

vl::i"t 

4"  presents  the 

jUb; 
but   :■ 

where  a  du 
l^erformancv 

stilts.     True 
cha;        '        ' 


"rritcrsons,  who  were  tli'. 
ence  in  failing  l< 
•,.i'  11  it  vvas  intended:  ^'^^ 
i  not  mere  nonfeasance,'" 
1'  '•-'.    An  agent,  while  obeying 
;    >.  -  .    of  the  principal,  is  not 
if  he  does,  not  only  the  principal 
n-wer  in  damages  therefor.     But 
iud  not  on  the  agent,  its  non- 
;!)ility  against  him.  if  injury  re- 
ihe  principal  to  faithfully  dis 
no  duty  to  others  except  tha; 
hall  not  do  anything  which  wiJ ; 
ils  to  perform  a  duty  which  h' 
of  -nch  non -performance  01 
can  be  main 
-    count  thereof 
aw,  §  695 ;  Cran 
io6,  and  case- 


ure  \'e  the  p' 

feasance.    Nonfeasa 

of  his  nrifUM-tri^'ini-f,  . 


-;  from  a 
■    .ace  and 
which  one 

I  i!)!  >n    liitTi    ;: 


TORTS.  425 

duty,  he  agrees  to  do  for  another;  that  which  is  imposed  upon  him 
merely  by  virtue  of  his  relation  to  his  principal. 

Misfeasance,  on  the  contrary,  may  consist  in  failing-  to  do  that 
which  is  imposed  as  a  duty,  or  in  doing  for  another,  in  an  improper 
manner,  that  which  the  principal  ought  to  have  done.  As  of  the 
latter  class  would  be  where  an  agent  actually  undertakes  and  enters 
upon  the  performance  of  a  certain  work  for  the  principal,  in  the  exe- 
cution of  which  it  is  his  duty  to  use  reasonable  care  in  the  manner  of 
executing  it,  so  as  not  to  cause  injury  to  others,  and  he  cannot,  by 
failing  to  exercise  such  care,  either  while  performing  the  work  or  by 
abandoning  it  in  an  uncompleted  condition  and  leaving  it  unguarded 
or  unsafe,  exempt  himself  from  liability  to  those  who  may  suffer 
injury  by  reason  of  such  negligence.  Osborne  v.  Morgan,  130  jMass. 
102. 

This  case,  however,  cannot  be  said  to  be  one  of  misfeasance,  be- 
cause the  appellees,  the  Cattersons,  were  under  no  legal  duty  to  keep 
the  property  in  repair  and  safe  for  use,  neither  did  they,  in  making 
the  repairs,  do  so  in  a  negligent  manner.  They  simply  neglected  to 
perform  for  their  principal  the  duty  which  he  owed  to  his  tenants. 
Their  failure  to  do  was  merely  a  nonfeasance  and  not  a  misfeasance. 

The  cases  cited  by  counsel  are  all  cases  where  the  agent  was  held 
liable  for  misfeasance.  In  none  of  those  cases  did  the  court  hold  that 
the  agent  was  liable  for  failing  to  perform  a  duty  owing  from  the 
principal  to  another  who  was  injured  by  reason  of  such  neglect  of 
duty.  That  when  an  agent  owes  a  duty  and  one  to  whom  the  duty  is 
owing  is  injured  by  reason  of  the  failure  to  perform  such  duty,  the 
agent  is  liable,  does  not  admit  of  question  for  he  is  liable  for  the  re- 
sult of  his  neglect  to  perform  any  duty  devolving  upon  him  in  his 
individual  character.  Not  so,  however,  when  he  is  simply  the  agent 
of  the  principal,  to  perform  the  duty  owing  from  the  principal  to 
others. 

The  complaint  stated  no  cause  of  action  against  the  appellees,  the 
Cattersons. 

Judgment  affirmed. 

Filed  November  13,  1894;  petition  for  a  rehearing  overruled  Jan- 
uary 30,  1895.1  ^ 

^Accord:  Delaney  v.  Rochereau,  34  La.  Ann.  1123;  Drake  v.  Hagan,  108 
Tenn.  265    (senible). 

Contra:  Baird  v.  Shipman,  132  111.  16;  Carson  v.  Quinn  (Mo.),  105  S.  W 
1088. 


f 


426  LIABILITY    TO    THIRD    PARTY. 

VAN  ANTWERP  v.  LINTON. 

1895.     Supreme  Court  of  New  York.     35  N.  Y.  Sup.  318. 

Parker,  J. — This  appeal  brings  up  a  judg-ment  entered  on  the  dis- 
missal of  the  complaint  after  the  opening  address  to  the  jury  by  plain- 
tiff's counsel,  which  was  taken  down.  From  the  complaint  and  open- 
ing, it  appears  that  the  plaintiff  was  injured  by  the  fall  of  the  grand 
stand  at  the  Yale-Princeton  football  game  on  Thanksgiving  day, 
1890,  on  grounds  in  the  possession  of  the  Brooklyn's  Limited,  a  cor- 
poration organized  under  the  laws  of  the  state  of  New  York.  The 
action  was  brought  against  the  Brooklyn's  Limited,  and  Messrs. 
Linton,  Chauncey,  and  Wallace,  who  were  appointed  a  committee  of 
the  board  of  directors  of  the  Brooklyn's  Limited,  to  put  the  grounds 
in  condition  for  the  exhibition  of  the  game.  The  Brooklyn's  Limited 
made  default,  and  the  question  presented  to  the  trial  court,  upon 
the  motion  to  dismiss  the  complaint,  was  whether,  from  the  complaint 
and  opening,  a  cause  of  action  against  the  individual  defendants  was 
stated.  It  was  conceded  that  the  individual  defendants  did  not  have 
any  lease  from  the  Brooklyn's  Limited,  nor  any  one  else,  running  to 
them ;  and  the  sole  ground  upon  which  the  plaintiff  sought  to  charge 
them  with  liability  was  that  they  were  appointed  a  committee  by 
the  directors  of  the  corporation  to  erect  a  stand,  and  otherwise  pro- 
vide for  the  reception  and  convenience  of  the  public,  and  that  by  rea- 
son of  their  negligent  omission  of  duty  there  was  a  defective  con- 
struction of  the  stand,  which  led  to  its  falling,  resulting  in  injury  to 
the  plaintiff.  As  it  was  conceded  that  the  Brooklyn's  Limited  was  a 
domestic  corporation  duly  organized  under  the  laws  of  this  state,  and 
in  possession  of  the  premises  when  the  stand  was  erected,  and  also  at 
the  time  of  the  accident,  liability  against  the  individual  defendants 
could  not  be  predicated  upon  their  being  directors,  officers,  or  stock- 
holders in  such  corporation.  Demarest  v.  Flack,  128  N.  Y.  205,  28 
N.  E.  645.  That  they  were  the  agents  of  the  corporation  in  directing 
and  superintending  the  erection  of  the  stand  was  assumed  by  the 
learned  trial  judge,  as  he  was  bound  to  do,  upon  the  complaint  and 
opening;  and  he  reached  the  conclusion  that  the  acts  with  which 
they  were  charged  constituted  nonfeasance  and  not  misfeasance.  If 
he  was  right  in  such  respect,  it  is  conceded  that  the  complaint  was 
properly  dismissed ;  for,  whatever  may  be  the  rule  in  other  jurisdic- 
tions, it  is  conceded  that  in  this  state  an  agent  or  servant  is  not  liable 
to  third  persons  for  nonfeasance.  As  between  himself  and  his  mas- 
ter, he  is  bound  to  serve  him  with  fidelity ;  and  for  a  breach  of  his 
duty  he  becomes  liable  to  the  master,  who,  in  turn,  may  be  charged 
in  damages  for  injuries  to  third  persons  occasioned  by  the  non- 
feasance of  the  servant.  For  misfeasance  the  agent  is  generally  lia- 
ble to  third  parties  suffering  thereby.    The  distinction  between  non- 


incipa.1  or  iv 
sts  upon  hii 
iw  imposed  upo; 
then  he  is  liable 
mt  urges  that  .. 
y  the  corporatioi!  a 
■omplained  of  consi>^ 


:5tiy  of  his  a.£ 
iividua!  def.. 


ce.     With  commendable  .,  he  has  br 

authorities  in  other  juris-  ading  to  supj 

'Ut  we  refrain  from  thei  ration,  becau&e 

ding  that  the  courts  of  L*i!  .  -i  uc  have  determine 
Murray  v.  Usher,  117  N.  Y.  542,  23  N.  E.  564.  t' 

'loved  upon  a  platform  in  a  sawmill  be'  ^i 

.-:.  sustained  injuries,  by  reason  of  its  :  -  ck:- 

:11s  death.    His  administrator  brought  an  actit  the 

f  the  mill  and  one  Lewis,  who  was  their  s'j;  _„   .      lent 
meral  charge  of  the  business,  and  being  specially  mstructed 
iter  the  necessary  repairs,  which  included  the  dut>'  of  in- 
vhe  platform  from  time  to  time  to  see  that  it  was  kept  in 
;dition.     TiK'  IS  recov'       '  iist  all  0:' 

the  court  o  th("  niv  .   the  ?n!' 

as  considered;  die  *  that  thr 

ident  to  nc'-fon^  the  -i  nnon  ' 

:vce,  for  , 
■3  were.     x...  c  .......--,  , 

one  under  considera 
"orm  the  duty  wl 
!  neglect  led  tr>  i< 
In  this  ' 
Lion  of  L 
'.y,  they  were  a: 
'nr-n  were  of  the  :.:.. 
•ge  is  that  the  r 

y  discha  '  .-c 

iums  V  .  an 


the  da- 


servant 


h:s 
.Mi-sion 


ie>'.)- 


SUPREMC 


OF    iNEW 


Mip.    318. 


Pakker,  J. — Thi 
missal  of  the  co — 
tiff's  counsel,  v 
ing.  it 

stand 

p  ■ 

nct^.M; 

Ml,    \y 


in  pi  '- 
the  til 

holders  in 
N.  E.  645. 
and  ■'Upenii.,- 
le?.  rncd  trial  ji; 


~»imd  to 


w 

fea,>;  u 
ble  to 


•red  on  the  dis- 

e  jury  by  plain- 

iaint  and  open- 

Sfrand 

'^  day, 

laniited,  a  cor- 

■w  York.    The 

',.  and  Messrs. 

c^i  a  committee  of 

to  put  the  grounds 

'    '.>klyn's  Limited 

■\]  court,  upon 

^  complaint 

lidants  was 

•:'iants  did  not  have 

■''  else,  rumiing  to 

light  to  charge 

i  a  committee  by 

and  otherwise  pro- 

.  Lhc  public,  and  that  by  rea- 

'     there  was  a  defective  con- 

1  to  its  falling,  resulting  in  injury  to 

d  that  the  Brooklyn's  Limited  was  a 

ized  under  the  laws  of  this  state,  and 

■  "'  -    'and  was  erected,  and  also  at 

the  individual  defendants 

-.  officers,  or  stock- 

128  N.  Y.  205,  28 

s  of  the  corporation  in  directing 

the  stand  was  assumed  by  the 

i  to  do,  upon  the  complaint  and 

•-"  that  the  acts  with  whic^ 

■e  and  not  misfeasance. 

r  plaint  w 

.  -T  jurisd 

r.t  is  not  liable 

'  and  his  ii;,.'^- 

i  breach 

ay  be  c- 

1  by  th. 

ar  1?  gc- 

lion  bet 


4 


TORTS,  427 

feasance  and  misfeasance  has  been  expressed  by  the  courts  of  this 
state  as  follows : 

"If  the  duty  omitted  by  the  agent  or  servant  devolved  upon  him 
purely  from  his  agency  or  employment,  his  omission  is  only  of  a  duty 
he  owes  his  principal  or  master,  and  the  master  alone  is  liable ;  while, 
if  the  duty  rests  upon  him  in  his  individual  character,  and  was  one 
that  the  law  imposed  upon  him  independently  of  his  agency  or  em- 
ployment, then  he  is  liable." 

Appellant  urges  that  although  these  individual  defendents  were 
charged  by  the  corporation  with  the  duty  of  erecting  this  stand,  and 
the  acts  complained  of  consisted  in  omitting  to  provide  for  a  con- 
struction of  sufficient  strength  to  withstand  the  strain  to  which  it  was 
subjected,  nevertheless  they  were  guilty  of  misfeasance,  rather  than 
nonfeasance.  With  commendable  diligence,  he  has  brought  to  our 
attention  authorities  in  other  jurisdictions  tending  to  support  his  con- 
tention ;  but  we  refrain  from  their  consideration,  because  it  is  our 
understanding  that  the  courts  of  this  state  have  determined  other- 
wise. In  Murray  v.  Usher,  117  N.  Y.  542,  23  N.  E.  564,  the  plain- 
tiff, while  employed  upon  a  platform  in  a  sawmill  belonging  to  two  of 
the  defendants,  sustained  injuries,  by  reason  of  its  falling,  which  oc- 
casioned his  death.  His  administrator  brought  an  action  against  the 
owners  of  the  mill  and  one  Lewis,  who  was  their  superintendent 
having  general  charge  of  the  business,  and  being  specially  instructed 
to  look  after  the  necessary  repairs,  which  included  the  duty  of  in- 
specting the  platform  from  time  to  time  to  see  that  it  was  kept  in 
a  safe  condition.  Judgment  was  recovered  against  all  of  the  defend- 
ants. In  the  court  of  appeals  the  question  of  the  superintendent's 
liability  was  considered ;  the  court  holding  that  the  omission  of  the 
superintendent  to  perfonn  the  duty  devolving  upon  him  constituted  a 
nonfeasance,  for  which  he  was  not  liable  in  a  civil  action,  but  that  his 
employers  were.  That  case,  it  will  be  observed,  is  directly  in  point 
with  the  one  under  consideration.  Lewis,  the  superintendent,  neg- 
lected to  perform  the  duty  which  his  employers  had  devolved  upon 
him,  and  such  neglect  led  to  the  fall  of  the  platform,  which  caused 
plaintiff's  injury.  In  this  case  the  defendants  were  engaged  in  super- 
intending the  erection  of  the  stand.  As  more  than  one  was  charged 
with  such  duty,  they  were  called  a  committee.  But  the  duties  de- 
volved upon  them  were  of  the  same  general  character  as  in  Murray's 
case,  and  the  charge  is  that  the  fall  of  the  stand  was  due  to  their 
neglect  to  properly  discharge  the  obligations  put  upon  them  by  the 
corporation.  In  Burns  v.  Pethcal,  75  Hun  437,  27  N.  Y.  S.  499,  an 
attempt  was  made  to  recover  of  a  foreman  for  the  loss  of  the  life  of 
an  employe,  due,  it  was  charged,  to  the  omission  of  the  foreman  to 
warn  the  dead  man  of  the  danger  of  working  in  a  particular  place. 
There  was  a  recovery  at  the  circuit,  but  the  general  term  reversed 
the  judgment;  holding  that  a  servant  is  not  liable  jointly  with  his 
master,  where  the  negligence  of  the  servant  consists  of  an  omission 


428  LIABILITY    TO    THIRD    PARTY. 

of  duty  devolved  upon  him  by  his  employment,  althoug^h  he  may  be 
liable  where  he  omits  to  perform  a  duty  which  rests  upon  him  in 
his  individual  character,  and  one  which  the  law  imposes  upon  him  in- 
dependently of  his  employment.  These  cases  fully  sustain  the  de- 
cision of  the  trial  court.  The  judgment  should  be  affirmed,  with 
costs. ^ 


LOUGH  V.  JOHN  DAVIS  &  COMPANY. 

1902.     Supreme  Court  of  Washington.     30  Wash.  204. 

Dunbar,  J. — This  is  an  action  against  an  agent,  who  was  author- 
ized to  rent  and  repair  the  tenement  house  described  in  the  complaint, 
for  permitting  the  house  to  become  unsafe  for  want  of  repairs,  from 
which  cause  the  plaintiff  was  injured.  Paragraph  2  of  the  complaint 
is  as  follows :  "That  at  all  said  times,  and  for  a  long  time  before,  the 
above  named  defendant,  Sheldon  R.  Webb,  has  been  and  still  is  the 
owner  of  that  certain  real  estate  property  known  as  lots  8  and  9,  in 
block  38,  of  A.  A.  Denny's  addition  to  the  city  of  Seattle,  and  of  the 
buildings  thereon  situated,  and  that  the  above  named  defendant  John 
Davis  &  Co.  has  had,  and  still  has,  sole  and  absolute  control  and  man- 
agement of  said  real  property  as  the  servant  and  agent  of  said 
Sheldon  R,  Webb,  with  full  power,  authority,  and  direction  from 
their  said  principal  to  rent  and  repair  the  same,  and  to  keep  the  same 
in  repair  and  safe  condition  for  tenants."  The  other  pertinent  al- 
legations are  to  the  effect  that  a  wide  veranda,  extending  along  two 
sides  of  the  building  about  fifteen  feet  from  the  ground,  was  used  in 
common  by  all  of  the  tenants,  and  was  enclosed  by  a  railing ;  that  the 
railing  was  allowed  to  become  old,  rotten,  and  unsafe  through  negli- 
gence of  the  defendants,  and  that,  while  the  plaintiff  was  playing  on 
the  said  veranda,  by  reason  of  the  unsafe  condition,  the  railing  gave 
way,  and  she  fell  from  said  veranda  from  a  height  of  fifteen  feet  and 
more  from  the  ground,  and  was  injured,  etc.  To  this  complaint  the 
defendant  John  Davis  &  Co.  interposed  a  demurrer  on  the  ground 
that  it  did  not  state  facts  sufficient  to  constitute  a  cause  of  action 

^Contra:  Mayer  v.  Thompson-Hutchinson  Building  Co.,  104  Ala.  611;  Ellis 
V.  McNaughton,  76  Mich.  237.  On  page  242  of  the  latter  case  Morse,  J.,  said : 
"Misfeasance  may  involve  to  some  extent  the  idea  of  not  doing;  as  where  an 
agent,  while  engaged  in  the  performance  of  his  undertaking,  does  not  do  some- 
thing which  it  was  his  duty  to  do  under  the  circumstances ;  as,  for  instance, 
when  he  does  not  exercise  that  care  which  a  due  regard  for  the  rights  of 
others  would  require.  This  was  not  doing,  but  it  is  the  not  doing  of  that 
which  is  not  imposed  upon  the  agent  merely  by  his  relation  to  his  principal, 
but  of  that  which  is  imposed  upon  him  by  law  as  a  responsible  individual  in 
common  with  all  other  members  of  society.  It  is  the  same  not  doing  which 
constitutes  negligence  in  any  relation,  and  is  actionable."  To  same  effect 
see  opinion  of  Gray,  C.  J.,  in  Osborne  v.  Morgan,  130  Mass.  102. 


429 

ir:t  it,  thf  'iemurring-  defendant.  '  There  was  no  appearance  by 
>.     The  3  sustained,  and,  the  plaintiff 

on  her  c.,'..  .  '"'-'i-nt  was  entered  on  the  de- 

^m  such  judgmei  the  demurrer  this  appeal 

u. 

■spondent  has  interposed  meal  for 

4is:  (I)   That  the  j'   ' 
■i ;  (2)  because  no  *1 
3)  because  this  ■ 

-,  action  upon  tl] .  ..  .  ,  ..^.  . 

Ill  ail  these  assignment  the  jud  . 

ihere  has  been  no   i-  -  the  case  ^u  i^' 

■  idants,  Sheldon  R.   >  erned.     Many  a, 

•,  but  we  will  notice  oniy  '  '        art.  Fn 

.-,  12  Wash.  I,  40  Pac.  38  ;  that  an 

•  a  default  and  vacating-  judgmem:  diereon  was  not  aj  , 
on  V.  Denny,  26  Wash,  327,  67  Pac.  78,  is  simply  an  aiV;: . 
le  doctrine  announced  in  that  case.    In  Johnson  v.  Lighthoi: 
'^'^-  32,  35  t*ac.  403,  the  appeal  was  dismissed  because  the  Paci.) 
I  &  Trust  Investment  Company  was  not  served  with  notice  of 
al ;  but  in  that  case  the  said  compan)'^  had  appeared  in  the  action 
'ded  a  demurrer  to  the  complaint.   Fairfield  v.  Binnian.  13  Wash. 
..  Pac.  632,  was  a  case  where  a  notice  of  appeal  had  not  been  given 
jjarty  who  had  appeared  in  the  court  below  by  intervention,  and 
is  held  that  he  was  as  much  a  party  in  interest  as  the  parties  who 
uially  appeared  in  the  action    ■••'  '      as  entitled  to  a  notice      '" 
il  irom  any  judgment  upon  i  ^ed  by  the  orierinal  T>.i 

ases  hardly  seem  to  u 
..ere.     In  this  case  S^ 
10  the  action,  never  had  ,  uur  be 

notice,  and  the  case  faii-  f  v.  T. 

•56,  52  Pac.  227,  where  it 
;  filed  against  several  d"- 
:   against  all  of  then^ 
f  those  served,  an  a; 
f,  although  there  ha^^ 

e  to  the  defendants  *  ;    >^ 

.'ition  of  the 
.  .v^asance  the  ag^.. 
"or  a  mere  nonfeasanv 
■    th  a  nonfeasance  c»r 
-anre  or  act  which 


\vruers  aTj'i  r.irvr 


iO   THIR: 


•  duty  devolved  i 
.:able  where  he  oii 
his  individual  char 
dependently  of  h- 
cision  of  the 
costs.  ^ 


MS  ernpi 
■m  a  dir 
:  which  ? 
.    Thes. 

judglTl': 


u'^h  he  may  be 
is  upon  him  in 
ej  upon  him  in- 
t  'in  the  de- 
nied, with 


igf:)2. 


Df- 


conimon  b>-  ail 

railing  w?      '  ' 

gence  of  ' 

the  said  ^ 

wRv.  and 

from  lii' 
lant  Joh 
.  did  no 

!ra:    Ma 

•TuRhton,  ^ 

■?  may  u 

engaged 

•  hich  it  was  1 

lie  does  not  c 


common  with  all  other  n 
constitutes  negligence  in 
see  opinion  of  Gray,  C.  J. 


.    '■'  .  30  Wash.  204. 

iction  a,.  igent,  who  was  author- 

nement  -cribed  in  the  complaint, 

become  imsate  for  want  of  repairs,  from 

3  injured.    Paragraph  2  of  the  complaint 

aid  times,  and  for  a  Iqiig  time  before,  the 

■''  '  m  R.  Webb,  has  Ix-en  and  still  is  the 

e  property-  V-nown  ?s  lots  8  and  9,  in 

don  to  '  ,  and  of  the 

that  the  .  endant  John 

ill  has,  sole  and  absolute  control  and  man- 

■erty  as  the  servant  and  agent  of  said 

'11  power,  authority,  and  direction  from 

nd  repair  the  same,  and  to  keep  the  same 

•1.  for  tenants."     The  other  pertinent  al- 

a  wide  veranda,  extending  along  two 

en  feet  from  the  ground,  was  used  in 

id  was  enclosed  by  a  railing;  that  the 

I''   rotten,  and  unsafe  through  negli- 

bile  the  plaintiff  was  playing  on 

:nsafe  condition,  the  railing  gave 

from  a  height  of  fifteen  feet  and 

ired,  etc.    To  this  complaint  the 

jsed  a  demurrer  on  the  ground 

constitute  a  cause  of  action 

•  o.,  104  Ala.  611 ;  ]"' 
'■  rase  Morse,  J.,  s: 
oing;  as  wher< 
,  does  not  do  so 
!!i  taiuos;  as,  for  : 
•  :•  regard  for  the  v 
'   is  the  not  i" 
is  relation  to 

a  responsible  i  lun  r, :,:^,  la 
the  same  not  doing  which 
..ciionable."     To   v.-.w,    .  tTrrf 
an,  130  Mass.  102. 


TORTS.  429 

against  it,  the  demurring  defendant.  There  was  no  appearance  by 
Sheldon  R.  Webb.  The  demurrer  was  sustained,  and,  the  plaintiff 
electing  to  stand  on  her  complaint,  judgment  was  entered  on  the  de- 
murrer. From  such  judgment  sustaining  the  demurrer  this  appeal 
was  taken. 

The  respondent  has  interposed  a  motion  to  dismiss  the  appeal  for 
the  reasons:  (i)  That  the  judginent  appealed  from  is  not  a  final 
judgment;  (2)  because  no  final  judgment  has  been  entered  in  this 
action;  (3)  because  this  court  has  no  jurisdiction  to  hear  and  deter- 
mine this  action  upon  the  attempted  appeal  herein.  The  idea  em- 
braced in  all  these  assignments  is  that  the  judgment  is  not  final,  be- 
cause there  has  been  no  disposition  of  the  case  so  far  as  one  of  the 
defendants,  Sheldon  R.  Webb,  is  concerned.  ]\Iany  authorities  are 
cited,  but  we  will  notice  only  those  from  this  court.  Freeman  v.  Am- 
brose, 12  Wash.  I,  40  Pac.  381,  simply  decided  that  an  order  setting 
aside  a  default  and  vacating  judgment  thereon  was  not  appealable. 
Nelson  v.  Denny,  26  Wash.  327,  67  Pac.  78,  is  simply  an  affirmance 
of  the  doctrine  announced  in  that  case.  In  Johnson  v.  Lighthouse,  8 
W^ash.  32,  35  Pac.  403,  the  appeal  was  dismissed  because  the  Pacific 
Loan  &  Trust  Investment  Company  was  not  served  with  notice  of 
appeal ;  but  in  that  case  the  said  company  had  appeared  in  the  action 
and  filed  a  demurrer  to  the  complaint.  Fairfield  v.  Binnian,  13  Wash. 
I,  42  Pac.  632,  was  a  case  where  a  notice  of  appeal  had  not  been  given 
to  a  party  who  had  appeared  in  the  court  below  by  intervention,  and 
it  was  held  that  he  was  as  much  a  party  in  interest  as  the  parties  who 
originally  appeared  in  the  action,  and  was  entitled  to  a  notice  of 
appeal  from  any  judginent  upon  issues  raised  by  the  original  parties. 
These  cases  hardly  seem  to  us  to  be  in  point  on  the  questions  in- 
volved here.  In  this  case  Sheldon  R.  Webb  never  had  become  a 
party  to  the  action,  never  had  appeared  in  the  action  nor  been  served 
with  notice,  and  the  case  falls  squarely  within  Keef  v.  Tibbals,  18 
Wash.  656,  52  Pac.  227,  where  it  was  held  that,  where  a  complaint 
has  been  filed  against  several  defendants,  and  before  service  has  been 
obtained  against  all  of  them  the  complaint  has  been  stricken  on 
motion  of  those  served,  an  appeal  lies  from  such  order  striking  the 
complaint,  although  there  has  been  no  dismissal  or  other  action  taken 
with  reference  to  the  defendants  not  served.  The  motion  to  dismiss 
will  be  denied. 

It  is  the  contention  of  the  respondent  that  the  law  is  well  settled 
that  for  a  misfeasance  the  agent  is  personally  liable,  but  that  he  is 
never  liable  for  a  mere  nonfeasance ;  and  that,  the  respondent  being 
charged  only  with  a  nonfeasance  or  neglect  to  do  its  duty,  and  not 
with  any  misfeasance  or  act  which  it  ought  not  to  do,  the  com- 
plaint on  its  face  shows  that  it  is  not  liable,  and  that  the  demurrer 
was  therefore  properly  sustained.  This  rule  is  announced  by  some  of 
the  law  writers  and  manv  of  the  courts.     One  of  the  leadinsf  cases 


430  LIABILITY    TO    THIRD    PARTY. 

sustaining  this  doctrine  is  Delaney  v.  Rochereau,  34  La.  Ann.  1123, 
44  Am.  Rep.  456,  where  it  was  held  that  under  the  doctrine  of  both 
the  common  and  civil  law,  agents  are  not  liable  to  third  persons  for 
nonfeasance  or  mere  omissions  of  duty,  being  responsible  to  such 
parties  only  for  the  actual  commission  of  those  positive  wrongs 
for  which  they  would  be  otherwise  accountable  in  their  individual 
capacity  under  obligations  common  to^  all  men.  In  this  case  a  balcony 
which  needed  repairs  fell,  fatally  injuring  the  plaintiff;  and,  while 
the  agent  was  not  responsible  for  the  injured  party's  being  in  the 
house  at  that  particular  time, — he  having  obtained  entrance  by  means 
of  a  key  obtained  from  some  one  else, — the  case  is  discussed  and 
judgment  based  upon  the  doctrine  above  announced.  This  is  also  the 
established  doctrine  in  New  York.  The  case  of  Carey  v.  Rochereau 
(C.  C),  16  Fed.  87,  is  a  Louisiana  case,  and  bases  its  decision  on 
Delaney  v.  Rochereau,  supra,  without  discussion.  Labadie  v.  Haw- 
ley,  61  Texas  177,  48  Am.  Rep.  278,  held,  in  accordance  with  the 
same  rule,  that  an  agent  renting  his  principal's  house  with  authority 
to  construct  a  cooking  range  was  not  liable  for  injury  to  an  adjoin- 
ing proprietor,  caused  by  the  use  of  the  range ;  citing  Story  on 
Agency  309,  and  other  authorities.  In  Feltus  v.  Swan,  62  Miss.  415, 
it  was  held  that  an  agent  in  charge  of  a  plantation  was  not  liable  to 
the  owner  of  an  adjoining  plantation  for  damage  resulting  from  the 
malicious  neglect  and  refusal  of  the  agent  to  keep  open  a  drain  which 
it  was  his  duty  as  such  agent  to  keep  open.  The  announcement  of 
this  doctrine  is  accredited  by  many  of  the  courts  endorsing  it  to  the 
opinion  in  Lane  v.  Cotton,  12  Mod.  472,  but  it  was,  as  a  matter  of 
fact,  announced  only  incidentally  in  that  case  in  a  dissenting  opinion. 
The  question  of  the  responsibility  of  the  agent  could  not  have  been 
before  that  court,  for  the  action  was  against  a  postmaster  for  the  loss 
of  a  letter  which  was  taken  from  the  mail  by  a  clerk,  and  it  was  only 
the  responsibility  of  the  master,  and  not  that  of  the  servant  or  agent, 
which  was  under  discussion. 

The  reason  assigned  to  sustain  this  rule  is  that  the  responsibility 
must  arise  from  some  express  or  implied  obligations  between  the 
particular  parties  standing  in  privit}^  of  law  or  contract  with  each 
other.  If  this  be  true,  it  is  difficult  to  see  what  difference  there  is  in 
the  obligation  to  their  principal  between  the  commission  of  an  act 
by  the  agents  which  they  are  bound  to  their  principal  not  to  do  and 
the  omission  of  an  act  which  they  have  obligated  themselves  to  their 
principal  to  do.  They  certainly  stand  in  privity  of  law  or  contract 
with  their  principal  exactly  as  much  in  the  one  instance  as  in  the 
other,  for  the  obligation  to  do  what  ought  to  be  done  is  no  more 
strongly  implied  in  the  ordinary  contract  of  agency  than  is  the  obliga- 
tion not  to  do  what  ought  not  to  be  done.  This  reason  for  the  rule 
not  being  tenable,  and  no  other  reason  being  obvious,  the  rule  itself 
ought  not  to  obtain;  for  jurisprudence  does  not  concern  itself  with 


4■^' 


Tt 


;^hensive 
If  it 


difference 


:    Oi    ill, 

for  the 

in  com' 

,••1  \f.    '  K 

>_w   ^        -.    -    -       V 

i-'bv  the 

LUC  SCI  vant  ■'■   ■ 

■5    lUS    ii. 

■■•"cn-.-  'n  ■ 
trol  it.  neg:iigentl>-  r 
to +1^    'I -'•■••'■^•^ '-'f  ano. ..... .  ...,..._ 

res  :ere   should  :    in   le£, 

course,  'I  liTp  Liinission  of  t'  "■" 

vo!vf>  a  non-performance  of 

If  it  does  involve  .\   ii' 
liiat  the  at-ent  is  liable  !: 
-■    ig-  from  his  neglect,  there  i 
'  ■    ..^ond  directly  to  the  injured  pr. 
!i  that  which  necessitates  first 
■'      :>:  '■    :"  I  then  a  suit  by  the  niaMcr  d-j^^^m-i 

'  wrote  the 
ii    in   his    ai 
i    law   endorsed   the   distinciion   upon   which   his   decision,   was 
•d,  for,  while  the  doctrine  is  stated  in  the  Justinian  Code  that  no 
ii  could  usually  be  made  liable  for  a  mere  omission  to  act,  it  was 
erwise  when  the  omission  to  act  ^"i       -     '  ■    --  -i--  -c   i..t. 

■     rnat  arsfues  that,  as  an  agent  is  at 
' !  ard  given  him,  .■ 
.  it;  and,  if  he  f 
the  (.laraages  which  shall  have  0(  i>y  his  n(.)t  ::>■  ' 

the    Xicir'i.'in  law  the  distinct' .-ir  M-!Ti.^-;!r!Ti   ;.i. 

■'^rnized  under  su^ 
L'lc  .-vuniijij.n  law  the  followiri^ 
a  tire,  and  leaves  it  to  another. 
•  r  time  and  p' 

with  no  net 
and  it  is  argued,  very  s^ 
'•'  .!  l;i .-,  r-e  not  putting     .. 
•        'd  be  a  miscarri;: 
■  i^r,   .,.,  nOse  duty  it  is  to 
'.  and  w^ho  negligently  faJ 
car  io;i 
escar>e 


sustaining  this  d( 
44  Am.  Rep.  d^C. 
the  common  a. 


VVhiC! : 

the  a 

<:ii  a  key 
indj^men* 


the    1  : 


l-heii-  piii...  .,  . 

for  the  obl^ 

iplied  in 

)  do  wh; 


aey  V.  k  Ann.  1 123, 

held  th  itie  of  both 

its  are  i'  persons  for 

of  'ii-'  ''■■  to  such 

wrongs 

I'ulividual 

-0  a  balcony 

I,  while 

_;  in  the 

'  ained  entrance  by  means 

>      ase  is  discussed  and 

;ed.    This  is  also  the 

CLbc  ut  Carey  v.  Rochereau 

e,  and  bases  its  decision  on 

v-sion.    Labadie  v.  Haw- 

;  •  !  .  ^    I.  in  accordance  with  the 

iting  i]is  princijv  with  authority 

,■  \v,q^  n.      h:!''r  ry  to  an  adjoin- 

■iting   Story 

M.-l.'.C.-n.  Mi      :     I   iL;.!.-.     V.     OWcUl,    62    Miss.    41^, 

'  charge  of  d  plantation  was  not  liable  to 

■  resulting  from  the 

/  open  a  drain  which 

'ini  tw  l<eep  open.     The  announcement  of 

;\    nanv  "f  the  courts  endorsing  it  to  the 

^it  it  was,  as  a  matter  of 

uuiiN  .:>  -lUM  va^e  in  a  dissenting  opinion. 

nihility  of  the  agent?  could  not  have  been 

'ster  for  the  loss 
,  and  it  was  only 
uut  that  of  tlie  servant  or  age'^ 

■iiis  rule  is  that  the  responsibil 
-'-    implied  obligations  between  i 
orivity  of  law  or  contract  with  ea 
■    "e  what  difference  there  is    ■ 
a  the  commission  of  an  >. 
:  '  not  to  do  ?■  .■] 
;ns(ives  to  tb-.  i. 
ot  law  or  contract 
L\ic  instance  as  in  the 
to  be  done  is  no  more 
■  -y  than  is  the  obliga- 
reason  for  the  rule 
'.  obvious,  the  rule  itself 
not  concern  itself  with 


I 


TORTS,  431 

such  attenuated  refinements.  It  rests  upon  broad  and  comprehensive 
principles  in  its  attempt  to  promote  rig-hts  and  redress  wrongs.  If  it 
takes  note  of  a  distinction,  such  distinction  will  be  a  practical  one, 
founded  on  a  difference  in  principle,  and  not  a  distinction  without  a 
difference :  and  there  can  be  no  distinction  in  principle  between  the 
acts  of  a  servant  ^^•ho  puts  in  motion  an  agency  which,  in  its  wrong- 
ful operation,  injures  his  neighbor,  and  the  acts  of  a  servant  who, 
when  he  sees  such  ageny  in  motion,  and  when  it  is  his  duty  to  con- 
trol it,  negligently  refuses  to  do  his  duty,  and  suffers  it  to  operate 
to  the  damage  of  another.  There  is  certainly  no  difference  in  moral 
responsibility,  there  should  be  none  in  legal  responsibility.  Of 
course,  if  the  omission  of  the  act  or  the  nonfeasance  does  not  in- 
volve a  non-performance  of  duty,  then  the  responsibility  would  not 
attach.  If  it  does  involve  a  non-performance  of  duty  to  such  an 
extent  that  the  agent  is  liable  to^  the  principal  for  the  damages  en- 
suing from  his  neglect,  there  is  no^  hardship  in  compelling  him  to 
respond  directly  to  the  injured  party.  Such  practise  is  less  circuitous 
than  that  which  necessitates  first  the  suing  of  the  master  by  the  party 
injured,  and  then  a  suit  by  the  master  against  the  servant  to  recoup 
the  damages. 

But  the  honorable  judge  who  wrote  the  opinion  in  Delaney  v. 
Rochereau,  supra,  was  mistaken  in  his  announcement  that  the 
civil  law  endorsed  the  distinction  upon  which  his  decision  was 
based,  for,  while  the  doctrine  is  stated  in  the  Justinian  Code  that  no 
man  could  usually  be  made  liable  for  a  mere  omission  to  act,  it  was 
otherwise  when  the  omission  to  act  involved  a  negligence  of  duty. 
Domat  argues  that,  as  an  agent  is  at  libert)''  not  to  accept  the  order 
and  power  which  are  given  him,  so  he  is  bound,  if  he  does  accept  the 
order,  to  execute  it;  and,  if  he  failed  to  do  so,  he  will  be  liable  for 
the  damages  which  shall  have  occasioned  by  his  not  acting.  Under 
the  Aquiliian  law  the  distinction  between  omission  and  commission 
was  not  recognized  under  such  circumstances.  In  the  ninth  digest  of 
the  Aquiliian  law  the  following  instance  is  given :  One  servant  lights 
a  fire,  and  leaves  it  to  another.  The  latter  neglects  to  check  the  fire 
at  the  proper  time  and  place,  and  a  villa  is  burned.  The  first  servant 
was  charged  with  no  negligence,  because  it  was  his  duty  to  light  the 
fire,  and  it  is  argued,  very  sensibly,  that,  if  the  second  could  not  be 
charged  because  not  putting  out  the  fire  was  simply  an  omission  of 
duty,  there  would  be  a  miscarriage  of  justice.  Is  the  keeper  of  a 
drawbridge,  whose  duty  it  is  to  close  the  draw  after  a  ship  passes 
through,  and  who  negligently  fails  to  perform  that  duty,  allowing  a 
car  loaded  with  passengers  to  be  hurled  into  the  river  below,  to 
escape  responsibility  to  the  injured,  while  the  man  who  attempts  to 
operate  it,  but,  in  so  attempting  operates  it  negligently  and  unskil- 
fully, is  held  responsible?    Instances  in  the  ordinary  transactions  of 


432  LIABILITY    TO    THIRD    PARTY. 

life  might  be  multiplied  almost  without  end,  the  very  statement  of 
which  shows  conclusively  the  fallacy  of  the  rule. 

The  attempt  by  the  courts  to  maintain  this  indistinguishable  dis- 
tinction has  led  to  many  inconsistent  decisions.  Thus,  in  Albro  v. 
Jaquith,  4  Gray  99,  64  Am.  Dec.  56,  the  plaintiff  was  not  allowed  to 
recover  of  the  superintendent  of  a  canal  company  for  damages  caused 
by  negligence  in  the  management  of  the  apparatus  used  for  the  pur- 
pose of  generating,  containing,  and  burning  inflammable  gas  ;  the  su- 
perintendent being  the  agent  of  the  company,  and  being  charged  with 
carelessly,  negligently,  and  unskilfully  managing  the  business.  It 
was  held  that  he  was  not  charged  with  any  direct  act  of  misfeasance, 
but  only  with  nonfeasance,  and  that  there  was  no  redress,  because, 
as  the  court  said,  the  obligation  to  be  faithful  and  diligent  was 
founded  in  an  express  contract  with  his  principal.  As  we  have  be- 
fore indicated,  this  would  be  equally  true  of  the  acts  of  commission 
or  misfeasance  in  his  stewardship.  But  in  Bell  v.  Josselyn,  3  Gray 
309,  63  Am.  Dec.  741, — also  a  Massachusetts  case,  and  decided  the 
same  year, — it  was  held  that  an  agent  who  negligently  directed  water 
to  be  admitted  to  a  water  pipe  was  liable  to  a  third  person  because 
such  action  was  misfeasance.  In  that  case  it  was  not  claimed  that  the 
admission  of  water  to  the  pipe  was  negligent  or  wrongful,  but  the 
negligent  act  or  omission  was  in  allowing  the  pipe  to  become  ob- 
structed,—certainly  as  pure  an  omission  or  nonfeasance  as  could  be 
conceived  of.  But  the  court,  in  order  to  maintain  the  distinction 
which  it  deemed  itself  bound  by  precedent  to  do,  virtually  obliterated 
the  distinction  by  the  following  circuitous  reasoning:  "The  defend- 
ant's omission  to  examine  the  state  of  the  pipes  in  the  house  before 
causing  the  water  to  be  let  on  was  a  nonfeasance.  But  if  he  had  not 
caused  the  water  to  be  let  on,  that  nonfeasance  would  not  have 
injured  the  plaintiff.  If  he  had  examined  the  pipes,  and  left  them  in 
a  proper  condition,  and  then  caused  the  letting  on  of  the  water,  there 
would  have  been  neither  nonfeasance  nor  misfeasance.  As  the 
facts  are,  the  nonfeasance  caused  the  act  done  to  be  a  misfeasance. 
But  from  which  did  the  plaintiff'  suffer  ?  Clearly,  from  the  act  done, 
which  was  not  less  a  misfeasance  by  reason  of  it  being  preceded  by 
a  nonfeasance." 

Much  more  cogent  and  judicial  is  the  reasoning  of  the  same 
court  many  years  after  in  Osborne  v.  Morgan,  130  Mass.  102, 
39  Am.  Rep.  437,  where  an  agent  of  premises  was  held  responsi- 
ble to  a  third  person  for  suffering  to  remain  suspended  from  a  room  a 
tackle  block,  which  fell  upon  and  injured  the  plaintiff.  The  court, 
speaking  through  Chief  Justice  Gray,  said :  "The  principal  reason 
assigned  was  that  no  misfeasance  or  positive  act  of  wrong  was 
charged,  and  that  for  nonfeasance,^which  was  merely  negligence  in 
the  performance  of  a  duty  arising  from  some  express  or  implied  con- 
tract with  his  principal  or  employer, — an  agent  or  servant  was  re- 


;t  is  resj' 
.  an  :  :;'.h  i  .t  nont   ■  - 
nf ver   does  an} 
^ipal,  bvv 
•e  only  ;^ 
'H  feasance. 
...  jn  tlif-  <■  <<■■-"■ 
-lable  car 
■.   to  thir-j  i' 
:  and  he  car 
-  in  a  ci 
or  son  \vl 
!Out  proper  - 
mt  it  is  mist: 
s  still  another  class  o! 
rect  doctrine,  viz.,  thau  >.^ 
nfeasance  does  not  rest  i' 
devolving-  up^.>n 
Olc  Rs:  not  t-^  )^n^ 


s  Baird  v.  Shipman,  a  case  decided  in 
'^  N.  E.  384,-  ^     -     ^    '^^    -'    ^- 


uch 


hat  an  aeenr 


"ufeasdi; 

liold  what  seems 
''on,  whether  for  r 
I  at  all,  but  is  a  c 

iierson  to  so  usl;  liia: 

•pr  he  is  in  the  oper- 

if  the  prop- 

itaining-  this 

1890,  and  reported  in  132 

n.  St.  Rep,  504.   There  it 

irol  of  a  house  belong-in,^ 

se  in  a  (K 

the  thi- 


that  does  not  seem  1 
feature  ;  but  the  ''^^^ 
lounced.    Said  ti 


excused  by  the 
n  oivf  ,^nce  acti 
tr  work. 
L'jLing  it,  S' 
..-,'  be  the  na; 
ne  V.  Morgan.  . 
''t  is  Mayer  v.  1 
'1.  620,  28  L 
111  itlcM'n.t'-  rl: 


attempt  b)' 

.1  has  led  t< 
;i,  4  GrcH 

1 ',  .u\cr  of  the  .-- 

by  neglisrence  ' 

pose  ( 

perin- 


was  no: 

^•Vasance. 

I!-,  h     \V.O"k 


his  prit 


'.lid,  ilie  very  statement 

!7e  rule. 


not  allowed  to 

■-.uia.  •  :■!  'viges  caused 

t  of  tlu  :\)T  the  pur- 

as ;  the  su- 
larged  with 
.i   liic  business, 
act  of  misfeasani.>. 
o  redress,  because, 
....A  and  diligent  wa'- 
xipal.    As  we  have  t  ^ 
the  acts  of  commiissiuii 
;  Cell  V.  Josselyn,  3  Gray 
ii^ctts  case,  and  decided  the 
lo  neglig"ently  directed  water 
.  ^  hable  to  a  third  person  l>ecause 
r  o-i-<^  i>  v  r<  not  claimed  that  the 
■   wrongful,  but  the 
a.-^  Ill  aiiuwiug  UH.-  pipe  to  become  ob- 
an  omission  or  nonfeasance  as  could  be 
to  maintain  the  distinction 
it  to  do,  virtually  obliterated 
us  reasoning:  "The  defer  ' 
't  Tripes  in  the  house  befoi 
I  nee.    But  if  he  had  r  .1 
"ce  would  not  ha 
es,  and  left  them 
-  of  the  water,  the 
■feasance.     A"   V.-.- 
le  to  be  a  misff" 
:u]\\  from  the  ai: 
'y.g  precc 

.t;-  of  thr 
\^o   Mass.    ■,.'-  . 
held  respoti- ' 
[  from  a 
;  !t.      Th( 
rincipal  rea.'-'  ; 
A.   of   wrong  w,i 
K-rely  negligence  i: 
ress  or  implied  con 
.)r  servant  w^s  1 


IT 


TORTS.  433 

sponsible  to  him  only,  and  not  to  any  third  person.  It  is  often  said  in 
the  books  that  an  agent  is  responsible  to  third  persons  for  misfeas- 
ance only,  and  not  for  nonfeasance.  And  it  is  doubtless  true  that,  if 
an  agent  never  does  anything  toward  carrying  out  his  contract 
with  his  principal,  but  wholly  omits  and  neglects  to  do  so,  the 
principal  is  the  only  person  who  can  maintain  any  action  against 
him  for  the  nonfeasance.  But  if  the  agent  once  actually  undertakes 
and  enters  upon  the  execution  of  a  particular  work,  it  is  his  duty  to 
use  reasonable  care  in  the  manner  of  executing  it,  so  as  to  not  cause 
any  injury  to  third  persons  which  may  be  the  natural  consequence 
of  his  acts  ;  and  he  cannot,  by  abandoning  its  execution  midway,  and 
leaving  things  in  a  dangerous  condition,  exempt  himself  from  lia- 
bility to  any  person  who  suffers  injury  by  reason  of  his  having  so  left 
them  without  proper  safeguards.  This  is  not  nonfeasance,  or  doing 
nothing ;  but  it  is  misfeasance,  doing  improperly." 

There  is  still  another  class  of  cases  which  hold  what  seems  to  us  to 
be  the  correct  doctrine,  viz.,  that  the  obligation,  whether  for  misfeas- 
ance or  nonfeasance  does  not  rest  in  contract  at  all,  but  is  a  common- 
law  obligation  devolving  upon  every  responsible  person  to  so  use  that 
which  he  controls  as  not  to  injure  another,  whether  he  is  in  the  oper- 
ation of  his  own  property  as  principal  or  in  the  operation  of  the  prop- 
erty of  another  as  agent.  One  of  the  leading  cases  maintaining  this 
view  is  Baird  v.  Shipman,  a  case  decided  in  1890,  and  reported  in  132 
111.  16,  23  N.  E.  384,  7  L.  R.  A.  128,  22  Am.  St.  Rep.  504.  There  it 
was  held  that  an  agent  who  has  complete  control  of  a  house  belonging 
to  an  absent  principal,  and  who  lets  the  house  in  a  dangerous  condi- 
tion, promising  to  repair  it,  is  responsible  to  the  third  person  injured 
by  an  accident  caused  by  want  of  such  repair.  There  is  nothing  to  dis- 
tinguish this  case  from  the  case  at  bar  excepting  the  promise  to  re- 
pair, and  that  does  not  seem  to  have  been  deemed  by  the  court  an 
important  feature ;  but  the  case  was  decided  upon  the  laroad  principle 
above  announced.  Said  the  court:  "It  is  not  his  contract  with  the 
principal  which  exposes  him  to  or  protects  him  from  liability  to  third 
persons,  but  his  common-law  obligation  to  so  use  that  which  he  con- 
trols as  not  to  injure  another.  That  obligation  is  neither  increased 
nor  diminished  by  his  entrance  upon  the  duties  of  agency,  nor  can 
its  breach  be  excused  by  the  plea, that  his  principal  is  chargeable. 
*  *  *  If  the  agent  once  actually  undertakes  and  enters  upon  the 
execution  of  a  particular  work,  it  is  his  duty  to  use  reasonable  care  in 
the  manner  of  executing  it,  so  as  not  to  cause  any  injury  to  third 
persons  which  may  be  the  natural  consequence  of  his  act," — citing 
approvingly  Osborne  v.  Morgan,  supra. 

To  the  same  effect  is  Mayer  v.  Thompson-Hutchison  Building  Co., 

104  Ala.  611,  16  South.  620,  28  L.  R.  A.  433,  53  Am.  St.  Rep.  88. 

The  court  there,  after  noticing  the  doctrine  that  the  agent  can  be 

held  liable  to  third  persons  for  misfeasance  only,  says :  "It  is  difficult 

28 — Reinhard  Cases. 


434  LIABILITY    TO    THIRD    PARTY. 

to  apply  the  same  principles  which  g-overn  in  matters  of  contract 
between  an  agent  and  third  persons  to  the  torts  of  an  agent  which 
inflict  injury  on  third  persons,  whether  they  be  of  misfeasance  or  non- 
feasance, or  to  give  sound  reason  why  a  person  who,  while  acting  as 
principal,  would  be  individually  liable  to  third  persons  for  an  omis- 
sion of  duty,  becomes  exempt  from  liability  for  the  same  omission  of 
duty  because  he  was  acting  as  servant  or  agent.  The  tort  is  none 
the  less  a  tort  to  the  third  person  whether  suffered  from  one  acting 
as  principal  or  agent,  and  his  rights  ought  to  be  the  same  against  the 
one  whose  neglect  of  duty  has  caused  the  injury.''  In  that  case  Baird 
v.  Shipman,  supra,  is  cited  approvingly,  wnth  the  remark  that  the 
rule  laid  down  in  that  case  is  the  better  rule.  So,  in  Ellis  v.  Mc- 
Naughton,  76  Mich.  237,  42  N.  W.  11 13,  15  Am.  St.  308,  it  was 
held  that  an  agent  who  had  entire  control  of  premises  was  liable  for 
injuries  resulting  from  the  removal  of  a  walk  on  the  premises  by 
one  of  his  employees,  contrary  to  his  orders,  if,  after  such  removal, 
he  knew  of  the  dangerous  condition  of  the  premises,  and  allowed 
them  to  remain  in  that  condition.  It  would  seem  that,  if  there  is 
anything  in  definitions,  this  was  a  pure  nonfeasance,  and  yet  the 
court,  in  trying  to  harmonize  the  distinction  with  the  general  rule 
announced  and  above  discussed,  said,  speaking  of  the  agent's  duty 
in  relation  to  the  work :  "Every  day  it  was  so  permitted  to  remain, 
when  the  defendant  had  the  entire  control  of  it,  and  the  authority^ 
without  question,  to  replace  it,  was  a  wrong  and  a  misfeasance." 

It  is  also  said  that,  irrespective  of  his  principal,  the  agent  was 
bound  while  doing  the  work  to  so  use  the  premises,  including  the 
sidewalk,  as  not  to  injure  others.  Misfeasance,  said  the  court,  may 
involve  the  omission  to  do  something  which  ought  to  be  done, — as 
when  an  agent  engaged  in  the  performance  of  his  undertaking  omits 
to  do  something  which  it  is  his  duty  to  do  under  the  circumstances, 
as  when  he  does  not  exercise  that  degree  of  care  which  due  regard 
for  the  rights  of  others  required.  To  the  same  effect,  Campbell  v. 
Portland  Sugar  Co.,  62  Me.  552,  16  Am.  Rep.  503.  In  Lottman  v. 
Barnett,  62  Mo-.  159,  it  was  held  that  one  having  the  general  charge 
and  superintendence  of  the  construction  of  a  building  was  responsible 
for  the  killing  of  a  workman  caused  by  the  falling  of  a  wall,  which 
resulted  from  the  giving  way  of  supports  on  which  the  wall  rested 
under  the  working  of  a  jackscrew,  although  the  appliance  was  put  to 
work  under  the  immediate  direction  of  another  person,  employed  by 
the  owner  of  the  building,  and  while  the  architect  was  absent,  where 
it  appeared  that  the  manager  of  the  jackscrew  was  employed  under 
the  advice  of  the  architect,  and  subject  to  his  discretion,  and  that  he 
knew  and  approved  of  the  method  adopted  for  effecting  the  raising. 
Whether  the  wall  fell  because  the  plan  for  raising  it  was  a  bad  one, 
or  because  the  supports  were  inadequate,  it  was  held  that  in  either 
case  the  disaster  was  attributable  to  positive  misfeasance  for  negli- 
gence in  a  work  which  the  architect  had  undertaken,  but  in  which 


)sed  upon 


iuic,   s<iy3  . 
.1  A  failure  to 
cc  and  misfeasance, 
angers  for  injtirif- 
r  e  the  performanc 

i.^osed  upon  bin  : 
•   may   involve 
lere  the 
N  does  11' 
circumstances ;  does 
.1  care — vt'bich  a  dnf 
](  : Ms  is  not  doing,  bu 

n  the  agent  nit:i<.  i-nui^  : 

i)Osed  upon  him  h  individ' 


it  will  be  seen  that 
.  H    ,  .  .  Li  V  a' .  and  a  lack  of  precaution,  .>  •i<^;!    .i  , 
led.  are  as  much  misfeasance  as  an  active  misdoin: 


1  here,     in 
Ludior  armo'""" 
rties  for  acts 


e  or  noii^ 
:.i^  actini'   I 
tor  an  c 
c  omission  oi 
tort  is  none 


one  wh<' 


hel- 


anri  sup 

^or  the  ki;!,' 

•  ■  .;;lted  froi: 


.11  that  case  Baird 
remark  tlii'  i'i> 
.  in  EUi 

v'U.    St.    30b,    u    \v  i^ 

eniises  was  liable  for 
the  premises  by 
;er  such  removal, 
ises,  and  allowed 
'  that,  if  there  is 
Lice,  and  yet  the 
the  general  rule 
the  agent's  duty 
'  r:d  to  reiv  ''  ' 
he  autbi^' 
.libfeasance.' 
;  .'.  'he  agent 

-e  the  ])'  iicluding  the 

-feasance.     ,..,  ii;e  court,  may 
which  ought  to  be  done, — as 
ir'i  iiinuance  of  his  undertaki.. 
-  duty  to  do  under  the  circu' 

'  •  ■   of  care  which  due  regai.l 

snnie  eft'ect,  Campbell  v. 
503.     In  Lottin 
.  ^  ihe  general  c- 
li"  was  respoi' 

'  ''  1  wall,  Wini.u 
e  wall  rested 


O'  :.,v  .al'-e  ■ 
case  the  'li' 
ger' 


for  raising  it  was 


iiiUei'takcii,  but  i;i   vvhici. 


TORTS.  435 

he  failed  to  exhibit  the  care  and  skill  which  the  law  imposed  upon 
him.  To  make  this  distinction  more  shadowy,  if  possible,  Mr. 
Mechem,  in  his  work  on  Agency  (§  572),  after  announcing-  the 
general  rule,  says:  "Some  confusion  has  crept  into  certain  cases 
from  a  failure  to  observe  clearly  the  distinction  between  nonfeas- 
ance and  misfeasance.  As  has  been  said,  the  agent  is  not  liable  to 
strangers  for  injuries  sustained  by  them  because  he  did  not  under- 
take the  performance  of  some  duty  which  he  owed  to  his  principal, 
and  imposed  upon  him  by  his  relation,  which  is  nonfeasance.  Mis- 
feasance may  involve,  also,  to  some  extent,  the  idea  of  not  do- 
ing,— as  where  the  agent,  while  engaged  in  the  performance  of  his 
undertaking,  does  not  do  something  which  it  was  his  duty  to  do  un- 
der the  circumstances ;  does  not  take  that  precaution — does  not  exer- 
cise that  care — which  a  due  regard  for  the  rights  of  others  requires. 
All  this  is  not  doing,  but  it  is  not  the  not  doing  of  that  which  is  im- 
posed upon  the  agent  merely  by  virtue  of  his  relation,  but  of  that 
which  is  imposed  upon  him  by  law  as  a  responsible  individual  in  com- 
mon with  all  other  members  of  society.  It  is  the  same  not-doing  which 
constitutes  actionable  negligence  in  any  relation." 

The  author  then  quotes  approvingly  the  language  of  Chief  Justice 
Gray  in  Osborne  v.  Morgan,  supra,  and  of  Judge  Metcalf  in  Bell  v. 
Josselyn,  supra,  so  that  it  will  be  seen  that,  even  according  to  Mr. 
Mechem,  a  lack  of  care  and  a  lack  of  precaution,  when  once  the  duty 
is  assumed,  are  as  much  misfeasance  as  an  active  misdoing.  The  ir- 
resistible logic  of  his  statement  is  that  the  agent  is  responsible  to 
third  persons  v;hen  he  is  negligent  in  the  performance  of  the  duties 
which  he  undertakes,  whether  such  act  be  termed  misfeasance  or  non- 
feasance. The  rule  is  thus  announced  in  i  Am.  i&  Eng.  Ency.  Law 
(ist  ed.),  p.  407:  "Where  a  principal  engages  an  agent  to  do  a  cer- 
tain work,  and  to  take  entire  control  over  it,  while  the  principal  does 
not  interfere,  but  leaves  it  entirely  with  the  agent,  the  agent,  and  not 
the  principal,  will  be  liable  to  third  parties  for  injuries  or  damages 
sustained  by  the  negligence  or  unskilful  manner  in  which  the  work  is 
done." 

The  question  of  whether  or  not  the  principal  is  liable  is  not 
under  discussion  here.  In  the  same  section,  and  in  another  para- 
graph, that  author  announces  that  an  agent  is,  in  general,  not  liable 
to  third  parties  for  acts  of  negligence  for  non-performance  of  duty ; 
that  as  such  he  is  only  responsible  to  the  principal,  and  the  principal 
to  the  third  party.  So  that  in  the  mind  of  the  author  the  distinction 
must  have  been  established  between  an  agent  that  did  not  have  com- 
plete or  entire  control  and  one  who  did.  There  is  no  other  way  of 
harmonizing  the  two  statements.  This  is,  in  effect,  the  same  rule 
enunciated  by  Mr.  Wharton  in  his  work  on  Agency  (§  538).  Under 
the  announcement  that  "wherever  there  is  liberty  there  is  liability," 
it  is  said :  "Hence,  to  strike  at  the  general  principle  that  lies  at  the 
basis  of  the  adjudication  we  have  just  noticed,  wherever  the  agent  is 


436  LIABILITY    TO    THIRD    PARTY. 

at  liberty  to  choose  his  own  mode  of  action,  then  he  is  distinctively 
liable  in  damages,  if  by  such  mode  of  action  he  invades  another's 
rights,"  The  same  doctrine  is  announced  in  §  537,  where  it  is  said : 
"Where  an  agent,  who  has  general  liberty  of  action,  injures  a  third 
person,  there  the  agent  is  personally  liable  for  negligent  as  well  as 
for  malicious  acts." 

The  author  here  discriminates  between  an  agent  and  a  servant, 
holding  that  a  servant  is  a  part  of  the  machinery  by  which  the 
master  works,  and  there  is  no  emancipation  or  liberty  of  action ; 
but  that  this  reasoning  does  not  apply  to  agents  who  have  com- 
plete control,  and  therefore  perfect  liberty  of  action.  Doubt- 
less much  of  the  mist  and  fog  which  have  enveloped  the  decisions 
on  this  subject  are  due  to  confusing  the  omission  of  an  act  which 
one  is  not  bound  to  perform  with  the  imperfect  performance 
of  an  act  to  which  he  is  bound.  In  other  words,  whoever  undertakes 
a  duty,  and  is  clothed  with  authority  to  perform  that  duty,  is  respon- 
sible to  the  party  injured  for  negligent  imperfection  in  the  discharge 
of  such  duty,  on  the  broad  doctrine  announced  above  that  he  is  obli- 
gated in  transacting  business  to  so  transact  it  that  his  neighbor  shall 
not  thereby  be  injured;  but  there  is  no  liability  for  the  non-perform- 
ance of  a  duty  not  assumed,  or  not  independently  controlled.  But 
for  neither  the  non-performance  nor  malperformance  of  a  positive 
duty  can  one  escape  responsibility,  whether  that  duty  is  imposed  by 
contract  or  by  general  obligation,  for  under  any  and  all  circum- 
stances it  is  the  essence  of  negligence  to  omit  to  do  something  which 
ought  to  be  done.  While  some  detached  expressions  of  Mr.  Whar- 
ton have  been  quoted  in  support  of  the  distinction  contended  for  by 
the  respondent,  that  author  puts  the  question  at  rest  in  his  work  on 
the  Law  of  Negligence  (2d  ed.,  §  535),  where  he  says:  "The  mere 
fact  that  I  am  the  agent,  in  doing  the  injurious  act,  of  another,  does 
not  relieve  me  from  liability  to  third  persons  for  hurt  this  act  in- 
flicts on  them.  Judge  Story,  indeed,  tells  us  that  for  the  omissions 
of  the  agent  the  principal  alone  is  liable,  while  for  misfeasances  the 
agent  is  also  liable ;  but  this  distinction,  as  has  been  already  shown, 
can  no  longer  be  sustained.  The  true  doctrine  is  that  when  an  agent 
is  employed  to  work  on  a  particular  thing,  and  has  surrendered  the 
thing  in  question  into  the  principal's  hands,  then  the  agent  ceases  to 
be  liable  to  third  persons  for  hurt  received  by  them  from  such  thing, 
though  the  hurt  is  remotely  due  to  the  agent's  negligence;  the  rea- 
son being  that  the  casual  relation  between  the  agent  and  the  person 
hurt  is  broken  by  the  interposition  of  the  principal  as  a  distinct  cen- 
ter of  legal  responsibilities  and  duties.  But  wherever  there  is  no 
such  interruption  of  casual  connection,— in  other  words,  wherever 
the  agent's  negligence  directly  injures  a  stranger,  the  agent  having 
liberty  of  action  in  respect  to  the  injury, — then  such  stranger  can  d\ 
recover  from  the  agent  damages  for  the  injury." 

There  is  some  contention  in  respondent's  brief  on  the  alleged  bar- 


437 

.  le-?  of  the  allegations  of  e  alle^a- 

nple  to  show  the- 
.  ,,  in  repair;  tb''  ' 
'Jete  control  of  ' 

ontrol   and  mav  n   i-ov. 

I  to  repair,  and  1  -reed  to 

L.*,  to  alJege  the  agr.. 
up':>n  it  afier  it  had 


)UT    conclusion  is  thai 
list  the  respondent.    The  ju. 
•uctions  to  the  lower  court  to  uvt.iuic  -p.,  u<-. 

ee  Frorer  v.  Baker,  137  111.  App.  588. 


LIABIL: 


RIV. 


it  liberty  to  choose  h\y 
'" '     in  darn?  '' 

"    The  - 

'VVr:ere  an  agei*!;, 
person,  tliere  the 
for  malicious  ;•. 
The  author 
noiding  that 
master  wo*-^- 
but  that  I 
plete    con 
less  miir! 
on  t}:' 


t.  ■■ 

the  1.  ■ 
fact  tr 
not  reliev 
flicts  on  li . 
of  the  agent  y 
agent  is  a^ 
c.'in  no  Ini 


■ie  to  third  i 
'■  'be  hurt  i- 
that  the 
i . ..  i .-  .  .• .  uken  by  . 
ter  of  leg-al  respo.i 
such 
the  a; 

liberty  oi  a>-tiOii  in  n. 

rerny----  f--;.  ;■!  the  agen; 

le  conte: 


lion,  then  he  is  distinctively 
action  be  invades  another's 
J  in  §  537t  where  it  is  said: 
•  ty  of  ac  '  jres  a  third 

ble  for  as  well  as 


f  the 


-  _       icrvant, 
by  which  the 
=  "■' '^  "^  .'i^oerty  of  action; 

its  who  have  com- 
.\    of    action.      Doubt- 
enveloped  the  decisions 
14  Lht  omission  of  an  act  which 
>  ith   the    imperfect    performance 
in  other  words,  whoever  undertakes 
,  v-v:,  <.    r  .^rr,-,rrn  fViat  duty,  is  rcspon- 
iou  in  the  discharge 
that  he  is  obli- 
i  neighbor  shall 
;;r  the  non-perform- 
]y  controlled.     But 
/jormance  of  a  positive 

■  '.J,  ..- _.  that  duty  is  imposed  by 

ion,  for  under  any  and  all  circum- 

gence  to  omit  to  do  something  which 

detached  expressions  of  Mr.  Whar- 

■f  of  the  distinction  contended  for  by 

s  the  question  at  rest  in  his  work  on 

§  535)'  where  he  says:  "The  mere' 

rg  the  injurious  act,  of  another,  does 

:■  third  persons  for  hurt  this  act  in- 

i/>f.ri    f.-ii;  MS  that  for  the  omissions 

ale  for  misfeasances  tlie 

already  shown, 

;  when  an  agent 

.as  surrendered  the 

the  agent  ceases  to 

■om  such  thing, 

ijrence;  the  rea- 

.  and  the  person 

ii'-z  piiinp.-i!  as  a  distinct  cen- 

ies.     But  wherever  there  is  no 


ry, — then  such  stranger  can 

•  injury." 

nt's  brief  on  the  alleged  bar- 


TORTS.  437 

renness  of  the  allegations  of  the  complaint,  but  we  think  the  allega- 
tions were  ample  to  show  that  the  respondent  was  authorized  to  keep 
the  building  in  repair ;  that  it  undertook  that  office  or  duty,  and  was 
in  complete  control  of  the  work.  It  is  alleged  that  it  was  in  ab- 
solute control  and  management,  with  full  power,  authority,  and 
direction  to  repair,  and  to  allege  that  it  agreed  to  do  so  would  only 
be  to  allege  the  agreement  to  do  the  duty  which  the  law  imposed 
upon  it  after  it  had  assumed  the  control  and  management  which  is 
alleged. 

Our  conclusion  is  that  the  complaint  states  a  cause  of  action 
against  the  respondent.  The  judgment  is  therefore  reversed,  with 
instructions  to  the  lower  court  to  overrule  the  demurrer  to  the  com- 
plaint.^ 

^  See  Frorer  v.  Baker,  137  111.  App.  588. 


f 


CHAPTER  X. 

UNDISCLOSED    PRINCIPAL. 


Section  1. — Liability  of  Third  Party  to  Principal. 


SCHAEFER  et  al.  v.  HENKEL. 

1878.     Court  of  Appeals  of  New  York.     75  N.  Y.  378. 

Miller,  J. — The  plaintiffs  were  not  parties  to  the  lease  upon 
which  this  action  was  brought.  It  was  not  signed  by  them.  Their 
names  did  not  appear  in  it,  and  there  was  nothing  in  the  lease  to 
show  that  they  had  anything  to  do  with  or  any  interest  in  the  de- 
mised premises  or  the  execution  of  the  lease,  or  that  it  was  exe- 
cuted in  their  behalf.  It  was  made  by  one  Brown,  as  lessor,  who  is 
described  therein,  and  who  signed  it,  as  agent;  but  it  is  not  stated 
in  the  lease  for  whom  he  acted.  The  covenants  are  all  between 
"J-  Romaine  Brown,  agent,  the  party  of  the  first  part,"  and  the 
defendant,  as  party  of  the  second  part ;  and  it  is  not  made  to  appear 
that  the  defendant  had  any  knowledge  or  intimation  whatever  that 
Brown  was  acting  on  the  behalf  of  the  plaintiff's  or  for  their  benefit. 
For  whom  Brown  was  agent  was  not  made  known  to  the  defendant, 
and  it  only  appears  by  parol  proof  upon  the  trial  that  Brown  was 
authorized  orally  by  the  plaintiffs  to  make  a  demise  of  the  premises 
described  in  the  lease.  The  signature  of  Brown  is  as  agent,  and  his 
seal  is  attached  to  the  instrument,  and  the  same  is  also  signed  and 
sealed  by  the  defendant.  The  plaintiff's,  without  any  assignment  of 
Brown's  interest  under  the  lease,  bring  this  action  to  recover  the 
rent  unpaid,  upon  the  ground  that  Brown  merely  acted  as  their 
agent  by  their  authority,  and  that  they  are  the  actual  parties  in  in- 
terest. The  question  to  be  determined  is  whether  the  actual  owners 
of  the  lease,  which  is  in  the  nature  of  a  deed  inter  partes,  which  was 
not  and  does  not  on  its  face  show  that  it  was  executed  by  them,  but 
which  does  show  an  execution  by  a  third  person,  claiming  to  act  as 
agent  without  disclosing  the  name  of  his  principal,  and  which  con- 
tains covenants  between  the  parties  actually  signing  and  sealing  the 
same,  can  maintain  an  action  upon  it  for  the  rent  reserved  therein, 

438 


I 


t39 

the  person  sar^e.  describing'  him- 

1  party  of  tli'  "r 

...act,  and  acted  n, 

ems  to  be  quite  action 

aled  instrument  ■'''■  '■'■" 

name  of  a  perse: 

rson  or  a  st-  ;  ui 

:  the  same.  iv 

it  consid 
state  tlui' 
..xecuted  that  the  seai  the  se: 

A  ho  designates  himsei.  ..    ...^.at,  and  i.  .    .  - 

that  the  former  only  is  the  real  party  who  o 
1  on  the  same.    He  alone  enters  into  the  covenauus  aiiu 
ny  failure  to  fulfil,  and  he  onlv  can  prosecute  the  other 
named  in  the  indenture  -  v,  and  an  action  wil' 

half  of  or  against  any  pei  is  not  a  party  to  the 

'  or  who  does  not  lawfully  rcpiesent  or  occupy  the  place  of 
party.  It  is  unnecessary  to  review  all  the  decisions  bearing 
!  the  question,  as  in  a  very  recent  case  the  principle  discussed 
-  een  considered  by  this  court,  and  the  whole  subject,  as  well  as 
-decisions  relating  to  the  same,  deliberately  and  carefully  re- 
•vd.  See  Briggs  v.  Partridge  (64  N.  Y.  357).  In  the  case 
,  an  action  was  brought  to  recover  purchase-money  unT>aid  upon 
■tract  for  the  sale  ar  :'.e  of  lands.     The  c 

tliat  the  plaintiffs  ei  ■  ^>  :  n  aj-."ceii!'inl  i'l 

'.'urd,  who  was  actmg  ui 


■eritied.     Th. 

'  a  prui' 
ully.   Tl 
.t  the  plaint 
...   for  and  imd^.    ....,    . 
the  first  payment  to  1» 
"'.:?  transaction, 
ed  to  show 
'    !  the  pi 
The  - 


anient,  on  pi 

.1    .,(i,-,_  f,. 


Section  1. — Li»i' 


i  Party  to  Principal. 


u; 


HENKEL. 


thai  li. 
Browi: 
For  w: 
and  it    . 
authorized 
described  iii    m    ,,,< 
seal  is  attached  to  i 
■     ■  •'  by  the  (J 
•  's  interc 
reiu  unpaid,  U; 
agent  by  their 
terest.    The  questi- 
,,f  ,1,,.  i^  .^>^  which 
:s  not  01 
wiiuiu  i.iof ^  shoT" 
agent  without 
tains  cover 
same,  can 


s  were  iie  lease  upi 

'      ^  .  i)y  them.    Their 

le  in  the  lease  to 

'•'^st  in  the  de- 

jt  it  was  exe- 

:.e  Brown,  as  lessor,  who  is 

._.  .:,  ..:,  agent;  but  it  is  not  stated 

1.     The  covenants  are  all  between 

•    party  of  the  first  part,"  and  the 

(1  part;  and  it  is  not  made  to  appear 

wiedge  ■  lion  whatever  that 

of  the  I'  r  for  their  benefit. 

.  <  not  made  known  to  the  defendant, 

i;f  ,;  mm:  1!k-  +rial  that  Brown  was 

se  of  the  premises 

cM!^  ■,.  !    agent,  and  his 

i  nt.  and  '  so  signed  and 

-■:•-•'  uent  of 

.  .cr  the 

;  as  their 

ties  in  in- 

the  actual  owners 

......       .  .;  partes,  whic^  ^^    -^ 

it  it  was  executed  by  the 
'    rd  person,  claiminr;  " 
.  >  principal,  and  • 
.l!y  signing  :p 
the  rent  rt 


LIABILITY   THIRD    PARTY    TO   PRINCIPAL.  439 

even  although  the  person  who  executed  the  same,  describing  him- 
self "agent  and  party  of  the  first  part,"  had  oral  authority  to  enter 
into  the  contract,  and  acted  as  the  owner's  agent  in  the  transaction. 
The  rule  seems  to  be  quite  well  established  that  in  general  an  action 
upon  a  sealed  instrument  of  this  description  must  be  brought  by 
and  in  the  name  of  a  person  who  is  a  party  to  such  instrument,  and 
that  a  third  person  or  a  stranger  to  the  instrument  cannot  maintain 
an  action  upon  the  same.  The  question  presented  has  been  the  sub- 
ject of  frequent  consideration  in  the  courts,  and  I  think  it  is  estab- 
lished in  this  state  that  where  it  distinctly  appears  from  the  instru- 
ment executed  that  the  seal  affixed  is  the  seal  of  the  person  subscrib- 
ing, who  designates  himself  as  agent,  and  not  the  seal  of  the  prin- 
cipal, that  the  former  only  is  the  real  party  who  can  maintain  an 
action  on  the  same.  He  alone  enters  into  the  covenants  and  is  liable 
for  any  failure  to  fulfil,  and  he  only  can  prosecute  the  other  party. 
He  is  named  in  the  indenture  as  a  party,  and  an  action  will  not  lie 
on  behalf  of  or  against  any  person  who  is  not  a  party  to  the  instru- 
ment, or  who  does  not  lawfully  represent  or  occupy  the  place  of 
such  party.  It  is  unnecessary  to  review  all  the  decisions  bearing 
upon  the  question,  as  in  a  very  recent  case  the  principle  discussed 
has  been  considered  by  this  court,  and  the  whole  subject,  as  well  as 
the  decisions  relating  to  the  same,  deliberately  and  carefully  re- 
viewed. See  Briggs  v.  Partridge  (64  N.  Y.  357).  In  the  case 
cited,  an  action  was  brought  to  recover  purchase-money  unpaid  upon 
a  contract  for  the  sale  and  purchase  of  lands.  The  complaint  al- 
leged that  the  plaintiffs  entered  into  an  agreement  in  writing  with 
one  Hurlburd,  who  was  acting  under  the  authority  of  the  defend- 
ants, whereby  the  plaintiffs  sold  and  the  defendants  through  Hurl- 
burd bought  a  certain  described  piece  of  land,  for  a  price  named, 
which  price  the  defendants,  through  their  agent,  Hurlburd,  agreed  to 
pay,  as  specified.  The  agreement  was  in  writing,  but  did  not  show 
that  Partridge  was  a  principal  party,  and  was  signed  and  sealed  by 
Hurlburd  individually.  The  name  of  Partridge  did  not  appear  in  the 
instrument,  but  the  plaintiffs  offered  to  prove  that  Hurlburd  was 
acting  solely  for  and  under  the  direction  of  Partridge,  who  made 
or  caused  the  first  payment  to  be  made  as  Partridge's  agent  or 
trustee  in  the  transaction,  and  that  his  authority  was  oral.  Proof 
was  also  offered  to  show  that  Hurlburd  was  constituted  such  agent 
by  parol ;  and  that  the  plaintiffs  did  not  know  that  Partridge  was 
the  real  principal.  The  complaint  was  dismissed,  and  it  was  held 
by  this  court  that  a  contract  of  this  description  under  seal  could  not 
be  enforced  as  the  simple  contract  of  another  not  mentioned  in  or  a 
party  to  the  instrument,  on  proof  that  the  vendee  named  had  oral 
authority  from  such  other  to  enter  into  the  contract,  and  acted  as 
agent  in  the  transaction ;  at  least,  in  the  absence  of  proof  of  some 
act  of  ratification  on  the  part  of  the  undisclosed  principal.  The  opin- 
ion of  Andrews,  J.,  in  the  case  cited,  fully  covers  the  question  now 


440  UNDISCLOSED    PRINCIPAL. 

presented ;  and  it  appears  to  be  unnecessary  to  review  or  examine 
the  prior  cases  which  have  a  bearing  upon  the  subject.  Unless  some 
distinction  of  a  vital  character  exists  between  that  case  and  the  one 
now  to  b€  determined,  the  former  must  be  regarded  as  decisive  of 
the  case  at  bar. 

The  claim  of  the  learned  counsel  for  the  appellant,  that  as  the 
contract  in  case  of  a  lease  is  not  required  to  be  under  seal,  it  may  be 
regarded  as  a  simple  contract,  upon  which  the  principal  may  sue  or 
be  sued  in  his  own  name,  and  the  seal  may  be  rejected  as  surplusage, 
is  also  considered  in  the  opinion  in  the  case  cited ;  and  without  en- 
dorsing the  correctness  of  the  cases  relied  upon,  it  is  remarked  that 
these  are  cases  which  hold  this  doctrine ;  "but  the  principal's  inter- 
est in  the  contract  appears  upon  its  face,  and  he  has  received  the 
benefit  of  performance  by  the  other  party,  and  has  ratified  and  con- 
firmed it  by  acts  in  pais."  It  is  therefore  settled  law  that  in  order  to 
take  a  case  out  of  the  general  rule,  where  the  contract  is  one  which  is 
valid  without  a  seal,  and  the  seal  is  therefore  of  no  account,  it  must 
appear  that  the  contract  was  really  made  on  behalf  of  the  principal, 
from  the  instrument,  and  that  the  party  derived  benefit  from  and  ac- 
cepted and  confirmed  it  by  acts  on  his  part.  Within  this  rule  it  re- 
mains to  be  considered  whether  the  case  at  bar  differs  from  that 
cited.  An  attempted  distinction  is  sought  to  be  maintained,  for  the 
reason  that,  in  the  case  cited,  Hurlburd,  the  agent,  did  not  enter 
into  the  agreement  to  sell  as  agent,  while  here  Brown  signs  as  agents 
which  it  is  claimed  is  notice  of  the  capacity  in  which  he  contracts. 
This,  we  think,  is  not  sufficient ;  and  to  establish  any  real  distinction 
it  should  appear  for  whom  he  was  agent,  and  that  the  parties  claim- 
ing were  his  principals.  The  plaintiffs  not  being  named  in  the  lease, 
and  it  not  appearing  that  they  had  any  interest  therein,  there  is  no 
more  ground  for  claiming  that  Brown  was  their  agent  than  that  he 
was  the  agent  of  some  stranger.  The  use  of  the  word  agent  has  but 
little  significance  of  itself,  and  as  the  principals  are  not  named,  can- 
not be  regarded  as  applying  more  to  one  person  than  to  another. 
It  did  not  take  away  from  BrOwn's  obligation,  because  he  is  named 
as  agent.  The  covenants  are  between  the  parties  who  are  only 
named  in  the  instrument  and  no  other  parties.  Any  other  interpre- 
tation would  be  a  contravention  of  its  obvious  import.  As  was  said 
in  the  case  cited :  "We  find  no  authority  for  the  proposition  that  a 
contract  under  seal  may  be  turned  into  the  simple  contract  of  a  party 
not  in  any  way  appearing  on  its  face  to  be  a  party  to  or  interested 
in  it,  on  proof  dehors  the  instrument,  that  the  nominal  party  was 
acting  as  the  agent  of  another."  To  render  the  principal  liable, 
where  there  is  a  contract  by  deed,  made  by  an  attorney  or  agent,  it 
must  be  made  in  the  name  of  the  principal.  (Huntington  v.  Knox, 
7  Cush.  374,  cited  and  approved  in  Briggs  v.  Partridge,  supra.)  It 
would  be  going  very  far  to  hold  that  a  distinction  so  trifling  and 
unimportant  would  authorize  a  disregard  of  the  decision  cited,  and 


stablish  an  n  the  on< 

ct-n  settled  there! 


■ir:jr 


UNIIiili    iMA'IES    Ci^• 


i  1 9- ''.'"■• 

Georgi.\ 
"Oil  t/ic  !-A".tj''icui  oi  vn.i'.'ijcij  aiLt'  (iate,  I  proriiirc  \o  -^ 

ier  oi  Asher  Ayres,  agt.,  $419.30,  to  T.  B.  Goff,  or  at  1:  ^t 

Georg-ia ;  value  received.    If  not  paid  at  maturity,  to  lytuir  ,/i 
.  the  rate  of  12  per  cent,  discount  per  annum. 

D.  H.  HOLLEMAN."        (L.  S.)  . 

t  demurred  to  the  petition,  which  set  out  a  copy  of  the 
liich  alleg-ed  that  the  defendant  gzve  the  same  to  Asher 
:  of  the  plaintiff.    Defendant  also  filed  a  plea,  in  the  form 
)f ,,      ...  .  .  the  jurisdiction,  denying  t''  •■  ^'<^''  T^acific  Guano  <"'.  ^-^^ -.r, ,. 
•;.i;I  '.V<i  legal  title  to  the  note,  and  that  the  sa; 

A.-:':         '      -'s,  the  agent,  a  re  "  "'  '      ' 

't      The  issues  t.' 

•greed  state  1. 
case.) 
pnl  term,  1S82, 
a  demurrer  to  the  j. 
:r.  iistrict  judge,  a  jury 

.'c-  he  following"  ad--  '' 

'a;  e  note  sued  on  ( 

■  '1  wester'' 
no  Corn; 
f  Mass?, 
of  the 
iher  the  plar 
•'  'vidence 
the  plai 


UNDISCLOSED   PRIV 


T 'resented ;  and  it  appears  to  be  wr 
the  prior  cases  which  have  a  bearing 
distinction  of  a  vital  character  exist  ~ 
to  be  determined,  '■'      *     nier  niu-- 
-e  at  bar. 
i  he  claim  -  ' 
contract  in  ca 
regarded  as  a 
be  sued  in  n' 
is  also  cor 


nv  or  examme 

Unless  some 

se  and  the  one 

decisive  of 


dorsing  ti 
these  are 
est  in  the 
benefit  of 
firmed  it  • 


.:t,  upoi 


and  i. 
more 
was  t! 
little  :. ,. 
not  be  re: 
It  did  not  i..r 
as  agent.     Ti 
1  in  the  . 
would  li 
in  tiie  case  cite. 
contract  under 
not  in  any  wh 
in  l^   on  proo;  ... 
as  the  age 
wi:-;.'.-  there  is  a  cc 
must  be  made  in  tb 
7  Cash.  374,  cited  anvl 
would  be  going  very 
unimportant  would  au' 


;.ni,  that  as  the 
seal,  it  may  be 
ipal  may  sue  or 
'  t'ic  -• :  '•  as  surplusage, 

■.nd  without  en- 
■M'.;  la-r^v'  remarked  that 

'  this  do^  :  rincipal's  inter- 

cars  upon  i'  v.is  received  the 

hv  the  othe^  atified  and  con- 

•Jiat  in  order  to 

is  one  which  is 

vcount,  it  must 

(/t  the  principal, 

enefit  from  and  ac- 

'.hin  this  rule  it  re- 

I  (lifters  from  that 

.;c  maintained,  for  the 

e  agent,  did  not  enter 

V  .  I  e  Brown  signs  as  agent, 

y  in  which  he  contracts. 

establish  any  real  distinction 

.1  ! ,  and  that  the  parties  claim- 

r      :      r;ot  being  named  in  the  lease, 

therein,  there  is  no 

agent  than  that  he 

The  use  oi  the  word  agent  has  but 

s  the  principals  are  not  named,  can- 

j  ore  to  one  person  than  to  another. 

vn's  obligation    '-^-^^.ise  he  is  named 

between  the  who  are  only 

!     ';■  other  interpre- 

L.    As  was  said 

■■'  -'-la 

•   ■  r-ty 

e  to  be  !  o  or  interested 

nt,  that  .  .-linal  party  was 

To  render  the  principal  liable, 

'    by  an  attorney  or  agent,  it 

,.al.     (Huntington  v.  Knox, 

j;-s  V.  Partridge,  supra.)     It 

distinction  so  trifling  and 

uiiirej^ard  of  the  decision  cited,  and 


LIABILITY   THIRD    PARTY    TO   PRINCIPAL.  44 1 

thus  virtually  establish  a  new  and  different  principle  than  the  one 
which  has  been  settled  tliereby.^    *    *    * 


PACIFIC  GUANO  CO.  v.  HOLLEMAN. 

1882.     United  States  Circuit  Court  (S.  D.  Georgia,  W.  D.), 

12  Fed.  61. 

Action  at  law,  upon  the  following  note : 

"$419.30 

Byron,  Georgia,  April  23,  1875. 
"On  the  twentieth  of  October,  after  date,  I  promise  to  pay  to  the 
order  of  Asher  Ayres,  agt.,  $419.30,  to  T.  B.  Goff,  or  at  his  office  in 
Macon,  Georgia ;  value  received.    If  not  paid  at  maturity,  to  bear  in- 
terest at  the  rate  of  12  per  cent,  discount  per  annum. 

D.  H.  Holleman."      (L.  S.) 

Defendant  demurred  to  the  petition,  which  set  out  a  copy  of  the 
note,  and  which  alleged  that  the  defendant  gave  the  same  to  Asher 
Ayres,  agent  of  the  plaintiff.  Defendant  also  filed  a  plea,  in  the  form 
of  a  plea  to  the  jurisdiction,  denying  that  the  Pacific  Guano  Company 
had  the  legal  title  to  the  note,  and  alleging  that  the  same  was  in 
Asher  Ayres,  the  agent,  a  resident  of  the  district  in  which  the  suit 
was  brought.  The  issues  thus  raised  were  submitted  to  the  court 
upon  the  following  agreed  statement  of  facts : 

(After  stating  the  case.) 

"At  the  April  term,  1S82,  of  the  court,  the  pleas  to  the  jurisdiction 
(along  with  a  demurrer  to  the  plaintiff's  writ)  were  submitted  to  the 
circuit  and  district  judge,  a  jury  being  waived  by  consent  of  the  par- 
ties, upon  the  following  admitted  facts :  Asher  Ayres.  the  agent 
named  in  the  note  sued  on  (and  set  out  in  the  plaintiff's  petition),  is 
a  resident  of  said  western  division  of  the  southern  district  of  Georgia. 
The  Pacific  Guano  Company  is  a  corporation  having  its  legal  domi- 
cile in  the  state  of  Massachusetts,  and  was  the  holder  of  the  note  sued 
on  at  the  time  of  the  commencement  of  the  suit.  The  question 
argued  was  whether  the  plaintiff  can  maintain  the  action  on  the  note, 
and  whether  parol  evidence  is  admissible  to  show  that  the  note  is  in 
fact  the  property  of  the  plaintiff.  (Plea  of  failure  of  consideration 
reserved  for  trial  before  jury.)" 

Pardee,  C.  J. — The  agreement  of  counsel  submits  to  the  court  two 
questions:  (i)  Whether,  on  the  agreed  state  of  facts,  the  plaintiffs 
can  maintain  the  action.     (2)  Whether  parol  evidence  is  admissible 

^  A  portion  of  the  opinion  is  omitted. 


442  UNDISCLOSED    PRINCIPAL. 

on  the  trial  to  show  that  the  note  is  in  fact  the  property  of  the  plain- 
tiff. The  facts  agreed  on  are  that  Ayres,  the  a.s^ent  named  in  the 
note,  is  a  resident  of  this  district,  and  the  plaintiff  is  the  holder  of 
the  note  sued  on,  and  is  a  coqioration  domiciled  in  the  state  of  Mas- 
sachusetts, The  other  facts  appear  in  the  petition.  We  are  agreed 
that  both  questions  shall  be  answered  in  the  affirmative.  That  a  note 
given  to  Asher  Ayres,  agent,  may  be  sued  on  by  the  principal,  who 
is  the  owner  and  holder,  is  well  settled  by  all  the  later  authorities. 
See  12  Am.  Dec.  713,  715,  and  authorities  there  cited:  Daniell  Neg. 
Inst.,  §   1 187;  Baldwin  v.  Bank  of  Newbury,  i  Wall.  234. 

The  authority  cited  by  counsel  for  defendant  in  i  Addison  on  Con- 
tracts, §  51,  does  not  apply,  as  that  section  relates  to  equities  between 
the  parties  in  cases  of  concealed  agency. 

The  case  of  Austell  v.  Rice,  5  Ga.  472.  does  not  conflict,  for  the 
court  in  that  case  did  not  deny  the  right  of  the  principal  to  bring  the 
suit,  but  maintained  the  right  of  the  payee  named  also  to  sue.  To 
the  same  effect  is  the  extract  from  the  decision  of  Chief  Justice  Mar- 
shall in  Van  Ness  v.  Forrest,  8  Cranch  30,  for  the  point  in  that  case 
was  v*^hether  the  payee  named  could  sue.  and  his  right  was  main- 
tained. The  admissibility  of  parol  evidence  to  show  that  the  plaintiff 
is  the  real  owner  and  holder  of  the  note  sued  on  when  such 
ownership  is  put  at  issue  by  the  defendant,  is  elementary. 
And  in  principle  and  authority  the  plaintiff'  may  offer  such  evidence 
when  in  cases  like  this  under  consideration  it  may  be  held  necessary 
for  him  to  make  such  proof  in  order  to  maintain  his  action.  See 
Daniell  Neg.  Inst.,  §  1187,  and  cases  there  cited. 

Erskine,  D.  J.,  concurred.^ 


NATIONAL  LIFE  INSURANCE  COMPANY  v.  ALLEN. 

1874.     Supreme  Judicial  Court  of  Massachusetts. 
116  Mass.  398. 

Contract  upon  the  following  promissory  note,  signed  by  the  de- 
fendant : 

^Accord:    McConnell  v.  East  Point  Land  Co.,  100  Ga.  129  (setnble). 

See  criticism  of  this  case  in  11  Harv.  Law  Rev.  340. 

Contra:  Grist  v.  Backhouse,  20  N.  Car.  496;  Lerned  v.  Johns,  9  Allen 
(Mass.)  419,  421  (semble)  ;  Van  Ness  v.  Forrest,  8  Cranch  (U.  S.)  30,  34 
(seiiiblc).  In  Fuller  v.  Hooper,  3  Gray  (Mass.)  334,  341,  Metcalf,  J.,  says: 
"The  Rule  is  general,  if  not  universal,  that  neither  the  legal  liability  of  an  un- 
named principal  to  be  sued,  nor  his  legal  right  to  sue,  on  a  negotiable  instru- 
ment, can  be  shown  by  parol  evidence.  When  an  agent  signs  such  an  instru- 
ment without  disclosing  his  agency  on  its  face,  the  holder  must  look  to  him 
alone.  And  when  such  an  instrument,  which  is  intended  for  the  benefit  of  the 
principal,  is  given  to  the  agent  only,  he  only,  or  his  endorsee,  can  sue  on  it." 

Compare  Seattle  Nat.  Bank  v.  Emmons,  16  Wash.  585. 


4+3 


•m- 


the  trial  in  the  sitpc 
le  following-  f 
;,^intiff  is  a  c 
an  office  in  Bo 
ni  the  business 

-sued  to  the  defenda  far 

r  the  term  of  ten  yea.. .  ...  ..,.  ....,,... 

idant  procured  this  policy  to  be  issue. 

v-'i  it  from  him,  to  whom  the  defendant   n 

■   premium.     The  note  declared  on    was  ma 

consid'  '  ;is  of  insurance  due 

o  the  pi,  d  by  the  policy  issue 

at  as  aforesaid,  and  tor  interest  on  such  premiums.     The  pre- 
~    ihen   due,   and   interest,   amounted   on,   May   31,    1869,   to 
and  Phelps  had  no  property  or  interest  therein,  excepting 
1  iiaracter  of  general  agent  of  the  plaintiff  in  Boston. 
on  these  facts,  the  judge  ruled  that  the  plaintiff  could  maintain 
n,  and  found  for  the  plaintiff.     The  defendant  excepted  to 


-.,  J. — The  note  upon 
m  of  promissory  1" 
ved  the  sum  of  $. 
to  pay  the  saine 
havin.e^-  been  triv 


the  dcieudaiit. 
.liice  of  unp.'iM 

10  the  p 

ill  inter 

'.  Bovlst' 


UNDISCLOSED    T 

to  show  that  the  note  is  i 


..  ./. -, 

agreed  on  are  that 

.:l     illC 

iil. 

-nt  of  this  district,  a- 

ler  of 

Mas- 

i  greed 

i  note 

i,  who 

1-  the.  owner  a. 

•  athorities. 

See  I?   ^'^    ^^•'- 

■ .  .  1 J 1  ■  1  ■ 

.n;,..i!  V-.o- 

Inst..  - 

.  Bank  ^ 

The  --r- 

!.'isel  r-; 

.  vm;p-c>ii  on  '-_•  ju- 

t\-r'Xi'<.  ^   -: 

-^  that  f 

i>  equities  between 

th 

Miflict,  for  th 

O'iun 

:  -al  to  bring-  the 

'■^o  to  sue.    To 

f  Justice  Mar- 

mt  in  that  case 

;ht  was  main- 

.V  ihat  the  plaintiff 

..^d   on   when   such 

idant,    is    elementary. 

i\  offer  such  evidence 

held  necessri' 

!e  cited. 


ijcd  bv  the  '1 


of  the 

on  it." 


il 


« 


Wat.  Bn. 


LIABILITY    THIRD    PARTY    TO    PRINCIPAL.  443 

"$422.83. 

Boston,  May  31,  1869. 

Borrowed  and  received  of  J.  T.  Phelps,  agent,  four  hundred  and 
twenty-two  and  eighty-three  one-hundredths  dollars,  which  I  prom- 
ise to  pay  on  demand,  with  interest." 

At  the  trial  in  the  superior  court,  before  Brigham,  C.  J.,  without 
a  jury,  the  following  facts  were  found  : 

The  plaintiff  is  a  corporation  in  the  state  of  Vermont,  having,  in 
1867,  an  office  in  Boston,  where  J.  T.  Phelps  acted  as  its  general 
agent  in  the  business  of  life  insurance.  On  December  31,  1867,  the 
plaintiff  issued  to  the  defendant  a  policy  of  insurance  on  his  life  for 
$5,000  for  the  term  of  ten  years,  for  an  annual  premium  of  $323.25. 
The  defendant  procured  this  policy  to  be  issued  through  Phelps,  and 
received  it  from  him,  to  whom  the  defendant  then  paid  the  first 
year's  premium.  The  note  declared  on  was  made  and  given  to 
Phelps  in  consideration  of  premiums  of  insurance  due  from  the  de- 
fendant to  the  plaintiff,  as  provided  by  the  policy  issued  to  the  de- 
fendant as  aforesaid,  and  for  interest  on  such  premiums.  The  pre- 
miums then  due,  and  interest,  amounted  on.  May  31,  1869,  to 
$422.83  ;  and  Phelps  had  no  property  or  interest  therein,  excepting 
in  his  character  of  general  agent  of  the  plaintiff  in  Boston. 

Upon  these  facts,  the  judge  ruled  that  the  plaintiff  could  maintain 
this  action,  and  found  for  the  plaintiff'.  The  defendant  excepted  to 
this  ruling. 

Devens,  J. — The  note  upon  which  this  suit  is  brought  is  not  in  the 
usual  form  of  promissory  notes,  but  recites  that,  having  borrowed 
and  received  the  sum  of  $422.83  of  J.  T.  Phelps,  agent,  the  defendant 
promises  to  pay  the  same  on  demand,  with  interest.  The  facts  found, 
the  case  having  been  tried  by  the  superior  court  without  a  jury, 
showed  that  the  whole  consideration  of  this  agreement  moved  from 
the  plaintiff  corporation,  it  having  made  a  policy  of  insurance  upon 
the  life  of  the  defendant,  and  this  paper  having  been  given  by  him 
for  the  balance  of  unpaid  premiums,  in  which  Phelps  had  no  interest. 
It  was  a  note  to  the  possession  of  which  the  plaintiff  was  entitled,  the 
whole  beneficial  interest  being  in  it,  and  which  it  also  had  a  right  to 
collect.  West  Boylston  Manufacturing  Co.  v.  Searle.  15  Pick.  225, 
230.  But  it  is  objected  by  the  defendant  that  the  note  could  only  be 
collected  by  a  suit  in  the  name  of  Phelps. 

As  a  general  rule,  where  a  written  agreement  not  under  seal  is 
made  on  behalf  of  a  principal  not  named,  and  the  consideration  has 
moved  from  him^  it  is  competent  for  the  principal  to  bring  an  action 
in  his  own  name  on  such  agreement  thus  made  for  his  benefit ;  and, 
on  the  other  hand,  even  when  the  agent  may  himself  be  liable  upon 
a  written  contract,  because  he  has  failed  fully  to  disclose  that  he  has 
made  it  on  behalf  01  another,  the  principal  on  whose  behalf  he  has 
made  it  may  also  be  liable.  Huntington  v.  Knox,  7  Cush.  371,  374, 
and  other  cases  cited  in  Exchange  Bank  v.  Rice,  107  Mass.  37,  43. 


444  UNDISCLOSED   PRINCIPAL. 

The  instrument  here  sued,  although  not  negotiable,  is  properly 
designated  as  a  promissory  note,  it  being  an  absolute  promise  to  pay 
money  at  all  events ;  but,  from  its  nature,  an  action  upon  it  must 
necessarily  be  confined  to  those  who  are  actually  parties  to  it,  either 
really  or  nominally,  and  it  is  clearly  not  intended  to  make  any  con- 
tract which  was  capable  of  transfer  or  assignment.  On  notes  similar 
in  their  general  character  to  this,  it  has  been  held  that  the  action 
might  be  maintained  in  the  name  of  the  principal  from  whom  the 
consideration  moved.  In  Garland  v.  Reynolds,  20  Maine  45,  upon  a 
note  not  negotiable  for  $100,  payable  to  Enoch  Huntington,  treas- 
urer of  the  committee  of  surplus  revenue,  it  was  held  that  the  town 
for  whose  money  the  note  was  given  might  sue  in  its  own  name. 

In  the  present  case,  the  principal  is  entitled  to  the  benefit  of  the 
note,  and  the  defendant  can  sustain  no  injury  by  suit  in  the  name  of 
the  principal,  as  he  would  have  the  benefit  of  any  payments  made 
bv  him  to  the  nominal  payee,  while  acting  as  agent. 

Nor  do  we  think  that  the  St.  of  3  &  4  Anne,  c.  9,  §  i,  upon  which 
the  modem  doctrine  of  promissory  notes  is  founded,  which  declares 
that  the  money  mentioned  in  such  note  shall  be  construed  to  be  due 
and  payable  to  such  person  to  whom  the  same  is  made  payable, 
should  be  held  to  prevent  the  principal  from  maintaining  an  action 
in  his  own  name  on  a  note  not  negotiable,  where  the  nominal  prom- 
isee is  an  agent.  Nor,  even  if  it  may  be  sued  by  the  principal  in  his 
own  name,  does  it  present  the  case  of  a  note  payable  to  A.  or  to  B., 
as  claimed  by  the  defendant,  which  has  been  held  bad  as  a  promissory 
note.  Osgood  v.  Pearsons,  4  Gray  455.  Here,  there  is  in  fact  but 
one  payee,  Phelps  being  merely  the  representative  of  the  plaintifif. 

Exceptions  overruled.^ 


BALDWIN  V.  BANK  OF  NEWBURY. 

1863.     Supreme  Court  of  the  United  States,     i  Wall.  234. 

The  bank  of  Newbury,  a  corporation,  at  the  time  of  the  suit  and 
now,  established  in  Vermont,  brought  an  action  of  assumpsit  in  the 
circuit  court  of  the  United  States  for  the  Massachusetts  district 
against  Baldwin,  upon  a  promissory  note  made  by  him  in  Massachu- 
setts, where  he  resided.  The  following  is  a  copy  of  the  note.  It  was 
unendorsed : 

"$3,500. 

Boston,  Dec.  9,  1853. 
Five  months  after  date  I  promise  to  pay  to  the  order  of  O.  C. 

'  Accord:    Garland  v.  Reynolds,  20  Me.  45. 

Contra:  Chaplin  v.  Canada,  8  Conn.  285.  Compare  Clark  v.  Reed,  20 
Miss.  554. 


Hale.  Esq., 


LI.v                                          XTY   TO    ' 

445 

3.                            -five  hundred  dollars,   ; 

J- 

nrsviant  fo  the  laws  ■ 

t  either 
■  erts 

ithin  the  state  o 
le  Bank  of  Nev 
-  in  MassachusL 

his  dis- 

'11,  and  did  not  s^ 
lis  point  the  case,  as  a^eed  on  by  tiie  pi. 

is  agreed  that  O.  C.  Hale  was  in   fact  the  cr. 

Newbury  at  ''■     '  ^  e  of  the  making  of  said  -..../lv,,  <j.,. 
onrt  would  ch  evidence  after  obiection  by  the 


jte,  ui  !u  tiotc  was  actiug  as  tiic  k.aaiiici  Oi  ruid 

-  the  plai poration.     If  upon  the  foregoing  facts  the 

'as  made  out  a  legal  cause  of  action  in  his  favor,  and  the 
I's  discharge,  etc.,  is  ineffectual  as  a  bar  of  said  action,  the 
^  is  to  be  defaulted;  otherwise  the  plaintiff  is  to  become 

oints  thus  arose  and  w^r 

r  the  CO' 
;.  the  pff 
i  in  that  state — ; 
g  a  corporaticrn  v.    . 
ether,  if  this  dischai 
'    -vthaf'O    • 
was  ca.- 
n  takii... 

\  ruled  that  ' 
•'f"'hadma(i 

1  error  : 

!   after 


UNDISCLOSED   PRl 


althou^i. 
m'i;-;^OTy  uvic,  it  '' 
s; :  but,   from  its 


tract  which  was  capable  oi  rransfer 
in  their  general  character  in  i'li^^ 
might  be  maintained  in  t! 
consideration  ■      - 
note  not  neg< 
iirer  of  the  cr 
for  whose  mc 

In  the  present  < 
note,  and  the  deft;. 
:he  principal,  as  h 
by  him  to  the  r'  -^ 

Nor  do  we 


is  properly 

"Tiise  to  pay 

lon  it  must 

.  either 

ly  con- 

otes  similar 

the  action 

whom  the 

In  Cia.  L.  .:,ai.c  45,  upon  a 

-  $ioo.  '  nitington,  treas- 

:,  held  that  the  town 

!ii  its  own  name. 

;:d  to  the  benefit  of  the 

\^  by  suit  in  the  name  of 

of  any  payments  made 

,,  ..:■,  agent. 

i  Anne,  c.  9,  §  i,  upon  which 

-  is  founded,  which  declares 

^hall  be  construed  to  be  due 

the  same  is  made  payable, 

.  from  rhaintaining  an  action 

-liable,  where  the  nominal  prom- 

:  ; .  .iiy  be  sued  by  the  principal  in  his 

case  of  a  note  payable  to  A.  or  to  B., 

•    ^as  been  held  bad  as  a  promissory 

455.     Here,  there  is  in  fact  but 

liie  representative  of  the  plaintiff. 


vNK  OF  NEWBURY. 


l8r. 
now,  estabiisi^ 

.-;-,   .;it     rmir; 


lorsed: 


Vail.  234. 

;me  of  the  suit  and 

ssumpsit  in  the 

hu setts  district 

m  in  Massachu- 

iie  note.    It  was 


Miss.  554. 


onths  after  date 
Garland  v.  i; 


Bos'MjA,  i>uc.  v.-jf:;^ 
?e  to  pay  to  the  order  of  O. 


LIABILITY   THIRD    PARTY   TO   PRINCIPAL.  445 

Hale,  Esq.,  cashier,  thirty-five  hundred  dollars,  payable  at  either 
bank  in  Boston,  value  received.  J.  W.  Baldwin." 

After  making  the  note,  and  pursuant  to  the  laws  of  Massachusetts 
existing-  prior  to  making  it,  Baldwin  obtained  a  certificate  of  dis- 
charge from  his  debts,  embracing  by  its  terms  all  contracts  to  be  per- 
formed within  the  state  of  Massachusetts  after  the  passage  of  said 
laws.  The  Bank  of  Newbury  took  no  part  in  these  proceedings  in 
insolvency  in  Massachusetts  by  which  Baldwin  obtained  his  dis- 
charge.   This  discharge  he  pleaded  in  bar  of  the  action  on  this  note. 

He  also  pleaded  the  general  issue,  and  under  that  plea  objected 
that  the  note  declared  on  was  not  competent  evidence  to  support  the 
declaration,  and  did  not  sustain  the  cause  of  action  therein  set  forth. 
On  this  point  the  case,  as  agreed  on  by  the  parties,  was  as  follows, 
viz. : 

"It  is  agreed  that  O.  C.  Hale  was  in  fact  the  cashier  of  the 
Bank  of  Newbury  at  the  time  of  the  making  of  said  note,  and  in 
case  the  court  would  admit  such  evidence  after  objection  by  the  de- 
fendant, and  not  otherwise,  and  not  waiving  his  objection  to  the 
same  as  incompetent,  the  defendant  admits  that  said  Hale  mentioned 
in  said  note,  in  taking  said  note  was  acting  as  the  cashier  of  and 
agent  for  the  plaintiff  corporation.  If  upon  the  foregoing  facts  the 
plaintiff  has  made  out  a  legal  cause  of  action  in  his  favor,  and  the 
defendant's  discharge,  etc.,  is  ineffectual  as  a  bar  of  said  action,  the 
defendant  is  to  be  defaulted ;  otherwise  the  plaintiff  is  to  become 
non-suit." 

Two  points  thus  arose  and  were  argued : 

1.  Whether  the  contract,  being  by  a  citizen  of  Massachusetts,  was 
discharged  by  the  proceedings  in  Massachusetts,  even  though  to  be 
perfonned  in  that  state — Hale  being  a  citizen,  and  the  Bank  of  New- 
bury being  a  corporation  of  Vermont,  a  different  state. 

2.  Whether,  if  this  discharge  was  not  a  bar,  parol  evidence  was 
admissible  to  show  that  "O.  C.  Hale,  Esq.,"  described  in  the  note  as 
"Cashier,"  simply,  was  cashier  of  the  Bank  of  Newbury,  the  plaintiff 
in  the  suit,  and  that  in  taking  the  note,  he  acted  as  the  cashier  and 
agent  of  the  corporation. 

The  court  below  ruled  that  the  discharge  pleaded  was  no  bar,  and 
also  that  the  plaintiff  had  made  out  a  cause  of  action,  and  gave  judg- 
ment accordingly.     On  error  here  the  same  two  questions  arose. 

Mr.  Justice  Clifford,  after  stating  the  case,  delivered  the  opinion 
of  the  court : 

I.  Two  questions  are  presented  for  decision,  but  the  first  is  the 
same  as  that  just  decided  in  the  preceding  case,  and  for  the  reasons 
there  given  must  be  determined  in  the  same  way.  Contrary  to  what 
was  held  in  the  case  of  Scribner  et  al.  v.  Fisher,  2  Gray  43,  we  hold 
that  the  certificate  of  discharge  in  the  case  was  no  bar  to  the  action, 
because  the  debt  was  due  to  a  citizen  of  another  state.  Such  was  the 
rule  laid  down  in  Ogden  v.  Saunders,  12  Wheaton  279;  and  we  also 


446  UNDISCLOSED    PRINCIPAL. 

hold  that  the  circumstance  that  the  contract  was  to  be  performed  in 
the  state  where  the  discharge  was  obtained  does  not  take  the  case 
out  of  the  operation  of  that  rule. 

2.  Agreed  statement  also  shows  that  O.  C.  Hale  was  in  fact  the 
cashier  of  the  Bank  of  Newbury  at  the  time  the  defendant  executed 
the  note,  but  the  defendant  insists,  as  he  insisted  in  the  court  below, 
that  parol  evidence  was  not  admissible  to  prove  that  the  person 
therein  named  as  payee  in  taking  the  note  acted  as  cashier  and  agent 
of  the  corporation.     He  admits  that  the  plaintiff  can  prove  those  Ij 

facts,  if  admissible,  but  denies  that  parol  evidence  is  admissible  for  \\ 

that  purpose,  which  is  the  principal  question  on  this  branch  of  the 
case.  Counsel  very  properly  admit  that  such  evidence  would  be  ad- 
missible in  suits  upon  ordinary  simple  contracts,  but  the  argument 
is  that  a  different  rule  prevails  where  the  suit  is  upon  a  promissory 
note  or  bill  of  exchange.  Suit  in  such  cases,  it  is  said,  can  onl}'  be 
maintained  in  the  name  of  the  person  therein  named  as  payee,  and 
consequently  that  the  plaintiff  bank  cannot  be  treated  as  such  with- 
out explanatory  evidence,  and  that  parol  evidence  is  not  admissible 
to  furnish  any  such  explanation.  Suppose  the  rule  were  so,  still  it 
could  not  benefit  the  defendant  in  this  case,  because  it  is  uncondi- 
tionally admitted  that  O.  C.  Hale  was  in  fact  cashier  of  the  plaintiff 
bank  at  the  time  of  the  making  of  the  said  note.  Undeniably  the 
note  must  be  considered  in  connection  with  that  admitted  fact,  and 
when  so  considered  it  brings  the  case  directly  within  the  rule  laid 
down  in  the  case  of  Commercial  Bank  v.  French,  21  Pickering  486, 
and  the  several  cases  there  cited  upon  the  same  subject.  In  that  case 
the  court  say  the  principle  is  that  the  promise  should  be  under- 
stood according  to  the  intention  of  the  parties.  If  in  truth  it  be  an 
undertaking  to  the  corporation  whether  a  right  or  a  wrong  name  is 
inserted,  or  whether  the  name  of  the  corporation  or  some  of  its  offi- 
cers be  used,  it  should  be  declared  on  and  treated  as  a  promise  to  the 
corporation,  and  as  a  general  rule  it  may  be  said  that  where  enough 
appears  to  show  that  the  parties  intended  to  execute  the  instrument 
in  the  name  of  the  principal,  the  form  of  the  words  is  immaterial, 
because  as  between  the  original  parties  their  intention  should  govern. 
But  it  is  not  necessary  to  place  the  decision  upon  that  ground  alone, 
as  we  are  all  of  the  opinion  that  even  if  the  facts  set  forth  in  the 
agreed  statement  are  all  to  be  regarded  merely  as  an  oifer  of  proof, 
subject  to  the  objections  of  the  defendant,  still  the  case  must  be  de- 
cided in  the  same  way.  Regarded  in  that  point  of  view,  the  question 
then  is  whether  the  evidence  offered  was  admissible.  Promise,  as 
appears  by  the  terms  of  the  note,  was  to  O.  C.  Hale,  cashier,  and  the 
question  is,  whether  parol  evidence  is  admissible  to  show  that  he 
was  cashier  of  tlie  plaintiff  bank,  and  that  in  taking  the  note  he  acted 
as  the  cashier  and  agent  of  the  corporation.  Contract  of  the  parties 
shows  that  he  was  cashier,  and  that  the  promise  was  to  him  in  that 
character.     Banking  corporations  necessarily  act  by  some  agent,  and 


'(i  to  show 


447 


er,  and 


have  1;.  where  that  i 


he  circv' 


■It  executed 

■  >urt  -below, 

tlie  person 

.1  agent 

c  those 

'ble  for 

L.:., :..!;.    of  the 

.e  would  be  ad- 

,  uut  the  argument 

upon  a  promissory 

can  only  be 

payee,  and 

such  vvith- 

admissible 

e  so,  still  it 

is  uncondi- 

the  plaintiff 

c.     L  ndeniably  t' 

admitted  fact,  : 

lin  the  rule  laid 


Picl 


•rnnr  4 


9''. 


HE 

4 


ith  it  be 

i;   H    viong  name  :•> 

1  or  some  of  its  offi- 

'  c  to  the 

^■nougb 

cute  uie  instrmnent 

"ids  is  immaterial 

,  i  should  govern. 

'  ^round  alnr-^ 

forth  in  ■ 

'or  of  prooi, 

I'umt  be  de- 


Hud  the 

..    that  '"- 

)te  he  B' 

iraci  <>t  the  pariu.^ 

was  to  him  in  that 

^ome  agent,  and 


LIABILITY    THIRD    PARTY    TO    PRINCIPAL.  447 

it  is  a  matter  of  common  knowledg"e  that  such  institutions  usually 
have  an  officer  known  as  their  cashier.  In  general  he  is  the  officer 
who  superintends  the  books  and  transactions  of  the  bank  under  the 
orders  of  the  directors. 

His  acts  within  the  sphere  of  his  duty  are  in  behalf  of  the  bank, 
and  to  that  extent  he  is  the  agent  of  the  corporation.  Viewed  in  the 
light  of  these  well-known  facts,  it  is  clear  that  evidence  may  be  re- 
ceived to  show  that  a  note  given  to  the  cashier  of  a  bank  was  in- 
tended as  a  promise  to  the  corporation,  and  that  such  evidence  has 
no  tendency  whatever  to  contradict  the  terms  of  the  instrument. 
Where  a  check  w^as  drawn  by  a  person  who  was  a  cashier  of  an  in- 
corporated bank,  and  it  appeared  doubtful  upon  the  face  of  the  in- 
strument whether  it  was  an  official  or  private  act,  this  court  held,  in 
the  case  of  the  Mechanics'  Bank  v.  The  Bank  of  Columbia,  5  Wheat. 
326,  that  parol  evidence  was  admissible  to  show  that  it  was  an  official 
act.  Signature  of  the  promissor  in  that  case  had  nothing  appended 
to  it  to  show  that  he  had  acted  in  an  official  character,  and  yet  it  was 
unhesitatingly  held  that  parol  evidence  was  admissible  to  show  the 
real  character  of  the  transaction.  Opinion  in  that  case  was  given  by 
Mr.  Justice  Johnson,  and  in  disposing  of  the  case  he  said,  that  it  is 
by  no  means  true,  as  was  contended  in  argument,  that  the  acts  of 
agents  derive  their  validity  from  professing  on  the  face  of  them  to 
have  been  done  in  the  exercise  of  their  agency.  Rules  of  form,  in 
certain  cases,  have  been  prescribed  by  law,  and  where  that  is  so  those 
rules  must  in  general  be  followed,  but  in  the  diversified  duties  of  a 
general  agent,  the  liability  of  the  principal  depends  upon  the  fact 
that  the  act  was  done  in  the  exercise  and  within  the  limits  of  the 
powers  delegated,  and  those  povv'ers,  says  the  learned  judge,  are  nec- 
essarily inquirable  into  by  the  court  and  jury.  Maker  of  the  note  in 
that  case  had  signed  his  name  without  any  addition  to  indicate  his 
agency,  which  makes  the  case  a  stronger  one  than  the  one  under  con- 
sideration. Same  rule  as  applied  to  ordinary  simple  contracts  has 
since  that  time  been  fully  adopted  by  this  court.  Examples  of  the 
kind  are  to  be  found  in  the  case  of  the  New  Jersey  Steam  Navigation 
Company  v.  The  Merchants'  Bank.  6  How.  381,  and  in  the  more  re- 
cent case  of  Ford  v.  Williams,  21  Hov/.  289,  where  the  opinion  was 
given  by  Mr.  Justice  Grier.  In  the  latter  case  it  is  said  that  the  con- 
tract of  the  agent  is  the  contract  of  the  principal,  and  he  may  sue  or 
be  sued  thereon,  though  not  named  therein.  Parol  proof  may  be 
admitted  to  show  the  real  nature  of  the  transaction,  and  it  is  there 
held  that  the  admission  of  such  proof  does  not  contradict  the  instru- 
ment, but  only  explains  the  transaction. 

Such  evidence,  says  Baron  Park,  in  Higgins  v.  Senior,  8  ]\Iee.  & 
Wels.  844,  does  not  deny  that  the  contract  binds  those  whom  on  its 
face  it  purports  to  bind,  but  shows  that  it  also  binds  another  by  rea- 
son that  the  act  of  the  agent  is  the  act  of  the  principal.  Argument 
for  the  defendant  is,  that  the  doctrine  of  those  cases  can  have  no  ap- 


448  UNDISCLOSED   PRINCIPAL. 

plication  to  the  present  case,  because  the  suit  is  founded  upon  a 
promissory  note,  but  the  distinctions  taken  we  think  cannot  be  sus- 
tained under  the  state  of  facts  disclosed  in  the  agreed  statement. 
Mr.  Parsons  says,  if  a  bill  or  note  is  made  payable  to  A.  B.,  cashier, 
without  any  other  designation,  there  is  authority  for  saying  that  an 
action  may  be  maintained  upon  it,  either  by  the  person  therein  named 
as  payee  or  by  the  bank  of  which  he  is  cashier,  if  the  paper  was  ac- 
tually made  and  received  on  account  of  the  bank ;  and  the  authori- 
ties cited  by  the  author  fully  sustain  the  position.  Fairfield  v. 
Adams,  16  Pick.  381 ;  Shaw  v.  Stone,  i  Cush.  254;  Barnaby  v.  New- 
combe,  9  Cush.  46;  Wright  v.  Boyd,  3  Barb.,  S.  C.  523.  Among  the 
cases  cited  by  that  author  to  show  that  the  suit  may  be  maintained 
by  the  bank,  is  that  of  the  Watervliet  Bank  v.  White,  i  Den.  608, 
which  deserves  to  be  specially  considered.  Note  in  that  case  was  en- 
dorsed to  R.  Olcott,  Esq.,  cashier,  or  order,  and  the  suit  was  brought 
in  the  name  of  the  plaintiff  bank,  of  which  the  indorsee  was  the 
cashier.  Objection  was  made  that  the  suit  could  not  be  maintained 
in  the  name  of  the  bank,  but  it  appearing  that  the  endorsement  was 
really  made  for  the  benefit  of  the  corporation,  the  court  overruled 
the  objection,  and  gave  judgment  for  the  plaintiff.  Bayley  v.  Onon- 
daga Ins.  Co.,  6  Hill  476.  Suggestion  was  made  at  the  argument 
that  the  rule  was  different  in  Massachusetts,  but  we  think  not.  On 
the  contrary,  the  same  rule  is  established  there  by  repeated  decisions, 
which  have  been  followed  in  other  states.  Eastern  R.  R.  Co.  v. 
Benedict  et  al,  5  Gray  561 ;  Folger  v.  Chase,  18  Pick.  63 ;  Hartford 
Bank  v.  Barry,  17  Mass.  94;  Long  v.  Colburn,  11  Mass.  97;  Swan 
V.  Park,  I  Fairf.  z^4i ;  Rutland  &  R.  R.  Co.  v.  Cole,  24  Vt.  33.  Doubt 
cannot  arise  in  this  case  that  the  person  named  in  the  note  was  in 
fact  the  cashier  of  the  plaintiff  bank,  because  the  fact  is  admitted, 
and  it  is  also  admitted  that  the  plaintiff  can  prove  that  in  taking 
the  note  he  acted  as  the  cashier  and  the  agent  of  the  corporation, 
provided  the  evidence  is  legally  admissible.  Our  conclusion  is, 
that  the  evidence  is  admissible,  and  that  the  suit  was  properly 
brought  in  the  name  of  the  bank.  The  judgment  of  the  circuit  court 
is  therefore  affirmed  with  costs. 
Judgment  accordingly.^ 

"■Accord:  Rutland  &  Burlington  R.  R.  Co.  v.  Cole,  24  Vt.  2Z;  First  Nat. 
Bank  of  Angelica  v.  Hale,  44  N.  Y.  395;  Carton  v.  Union  City  Nat.  Bank, 
34  Jvlich.  279. 

Contra:  Rose  v.  Laffan,  2  Spears  356  (semble)  ;  U.  S.  Bank  v.  Lyman,  20 
Vt.  (U.  S.  Cir.  Ct.  D.  Vt.)  666;  Horah  v.  Long,  20  N.  Car.  416.  On  page  417 
of  Horah  v.  Long,  Gaston.  J.,  said :  "The  word  'cashier'  was  but  descriptive 
of  the  individual  to  whom  the  note  was  made  payable." 

"Where  an  instrument  is  drawn  or  endorsed  to  a  person  as  "cashier"  or 
other  fiscal  officer  of  a  bank  or  corporation,  it  is  deemed  prima  facie  to  be  pay- 
able to  the  bank  or  corporation  of  which  he  is  such  officer,  and  may  be  ne- 
gotiated by  either  the  endorsement  of  the  bank  or  corporation,  or  the  endorse- 
ment of  the  officer."    Negotiable  Instruments  Law,  §  42. 


LIABILI  •■^TNCIPAL.  449 

185S.     Supreme  Court  of  the  How.  2%y. 

Grier,  J. — The  single  quesi  sion  in  this 

asc  is,  whether  the  principal  "^  written 

antract  made  by  his  ag^ent  ;.  :,closing 

iie  name  of  the  principal. 
It  is  not  necessary  to  tli 
•i  frauds,  that  the  writing 
Mi'la  of  these  contracts  i;         _ 

11  done.    If  a  party  is  mformed  that  the  ]: 
.    )..aling  is  merely  the  agent  for  another  and  j... 
he  agent  personally  on  his  own  credit,  he  will  not  i 

';  to  charge  the  principal;  but  when  he  deals  wnu   .^i 
•ut  any  disclosure  of  the  fact  of  his  agency,  he  may  eleci 
nc  airer-discovered  principal  as  the  person  with  whom  he  contract. 

The  contract  of  the  agent  is  the  contract  of  the  principal,  and  he 

.lay  sue  or  be  sued  thereon,  though  not  named  therein ;  and  notwith- 

""  ling  the  rule  of  law  that  an  agreement  reduced  to  writing  may 

.e  contradicted  or  varied  by  parol,  it  is  well  settled  that  the 

!pal  may  show  that  the  agent  who  made  the  contract  in  his  own 

-  was  acting  for  him.    This  proof  does  not  contradict  the  writ- 

t  only  explains  the  transaction.    But  the  agent,  who  binds  him- 

\vill  not  be  allowed  to  contradict  the  writing  by  proving  that 

le  was  contracting  only  as  agent,  while  the  same  evidence 


liiittted  to  charge   the   princin:  1 

e)   does  not  deny  that  t': 
IV'.-  it  purports  to  bind  ;  brt  ^^ 
m  that  the  act  of  the  <■ 
ins  V.  Senior,  9  Mee^ 

\^  icli   evidence 
inds  those 

e  array  of  cases  ant 
s  conclusively  that  th'.- 
ngland  and  many  of  • 
>'  Steam  Navigation  Cc 
u  ^  as.  ib.  cit.) 

The  judgment  of  the  coun 
re  de  novo  awarded. '^ 

Bank, 

Co.  v.'V' 

6  H< 


was 


448 


UNDISCLOSED   1 


the  present 

■1 V  note,  but  the 
inder  the  state  c 

.Sir.  i  arsons  says,  if  . 

without  any  other  • 

action  may  be  n 

as  payee  or  by  ■ 

tually  made  and  re 

ties  cited  by  the 

Adams,  i6  Pick.  38 

combe,  9  Cush.  .-^^ 

cases  cited  by  t' 

by  the  bank,  is 

which  deserves  > 

dorsed  to  R.  Olcutt,  Esq 

in  the  name  of  the  :>'':i' 

cashier.    Objectiof! 


case,  because  t^ 

distinctions  tak- 

)f  facts  disclose. 

note  is  !      ' 

n.  there 


1  upon 


Barry, 


and  it 
the  nor 
provide  v., 
that  the  e 
brought  in  ^ 
is  therefor' 


shier, 

at  an 

^la  named 

■  .:r  was  ac- 

accouni  ;  and  the  author. 

lily  sust  ion.     Fairfield  v 

^'.  Stone.  .  Barnaby  v.  New- 

.  Boyd,  "  '",.    Among-  the 

.1  show  i-  be  maintained 

'  ,1  Den.  608, 

r  case  was  en- 
,  ca-  t  was  brought 

ntiP  .  ..  )rsee  was  the 

not  be  maintained 

■  endorsement  was 

e  court  overruled 

Bayley  v.  Onon- 

e  at  the  argument 

iiut  we  think  not.    On 

by  repeated  decisions, 

Eastern  R.  R.  Co.  v. 

..c..,  18  Pick.  63;  Hartford 

Colburn,  11  Mass.  97;  Swan 

".  Co.  V.  Cole,  24  Vt.  33.  Doubt 

son  named  in  the  note  was  in 

cause  the  fact  is  admitted, 

:,  can  prove  that  in  taking 

and  the  agent  of  the  corporation, 

't'imissible.      Our   conclusion  is, 

d  that  the  suit   was   properly 

iie  judgment  of  the  circuit  court 


rnient  ac. 


279, 

.    Rose  V.  L;. 
-    (ir.  Ct.  D 
Long,  G  ■ 


by  cn''ii:r  ihs;  .;■•.■ 
ihe  officer."    Nes 


'.  a;  First.  JNiat. 
City  Nat.  Bank, 

:-.  Bank  v.  Lyman,  20 

-    \\6.  On  page  417 

;  but  descriptive 

i  to  a  person  as  "cashier" 
deemed  ^>riina  fn'i?  to  be  pi; 
s  such  o!'  ifiay  be  r 

or  rorpu'-  •  tie  endor-^ 

;    .\2. 


I 


LIABILITY   THIRD    PARTY    TO    PRINCIPAL.  449 

FORD  V.  WILLIAMS. 
1858.     Supreme  Court  of  the  United  States.     21  How.  287. 

Grier,  J. — The  single  question  presented  for  our  decision  in  this 
case  is,  whether  the  principal  can  maintain  an  action  on  a  written 
contract  made  by  his  agent  in  his  own  name,  without  disclosing 
the  name  of  the  principal. 

It  is  not  necessary  to  the  validity  of  a  contract,  under  the  statute 
of  frauds,  that  the  writing  disclose  the  principal.  In  the  brief  memo- 
randa of  these  contracts  usually  made  by  brokers  and  factors,  it  is 
seldom  done.  If  a  party  is  informed  that  the  person  with  whom  he 
is  dealing  is  merely  the  agent  for  another  and  prefers  to  deal  with 
the  agent  personally  on  his  own  credit,  he  will  not  be  allowed  after- 
wards to  charge  the  principal ;  but  when  he  deals  with  the  agent, 
without  any  disclosure  of  the  fact  of  his  agency,  he  may  elect  to  treat 
the  after-discovered  principal  as  the  person  with  whom  he  contracted. 

The  contract  of  the  agent  is  the  contract  of  the  principal,  and  he 
may  sue  or  be  sued  thereon,  though  not  named  therein ;  and  notwith- 
standing the  rule  of  law  that  an  agreement  reduced  to  writing  may 
not  be  contradicted  or  varied  by  parol,  it  is  well  settled  that  the 
principal  may  show  that  the  agent  who  made  the  contract  in  his  own 
name  was  acting  for  him.  This  proof  does  not  contradict  the  writ- 
ing ;  it  only  explains  the  transaction.  But  the  agent,  who  binds  him- 
self, will  not  be  allowed  to  contradict  the  writing  by  proving  that 
he  was  contracting  only  as  agent,  while  the  same  evidence  will  be 
admitted  to  charge  the  principal.  "Such  evidence  (says  Baron 
Parke)  does  not  deny  that  the  contract  binds  those  whom  on  its 
face  it  purports  to  bind ;  but  shows  that  it  also  binds  another,  by  rea- 
son that  the  act  of  the  agent  is  the  act  of  the  principal."  (See 
Higgins  V.  Senior,  9  Meeson  and  Wilsby,  843.) 

The  array  of  cases  and  treatises  cited  by  the  plaintiff's  counsel 
shows  conclusively  that  this  question  is  settled,  not  only  by  the  courts 
of  England  and  many  of  the  states,  but  by  this  court.  (See  New 
Jersey  Steam  Navigation  Co.  v.  Merchant's  Bank,  6  How.  381, 
et  cas.  ib.  cit.) 

The  judgment  of  the  court  below  is  therefore  reversed,  and  a 
venire  de  novo  awarded.^ 

^Accord:    Powell  v.  Wade,  109  Ala.  95. 

In  Propeller  Tow  Boat  Co.  v.  Western  Union  Tel.  Co.,  124  Ga.  478,  it  was 
held  that  an  undisclosed  principal  may  recover  damages  from  a  telegraph  com- 
pany for  loss  incurred  through  an  error  in  the  transmission  of  a  telegram  sent 
for  the  principal  by  an  agent  in  his  own  name. 


29 — ReINHARD    C.A.SES. 


450  UNDISCLOSED    PRINCIPAL. 

HUNTINGTON  v.  KNOX. 

1871.     Supreme  Judicial  Court  of  Massachusetts. 
7  Cush.  371. 

Shaw,  C.  J. — This  action  is  brought  to  recover  the  value  of  a 
quantity  of  hemlock  bark,  alleged  to  have  been  sold  by  the  plaintiff 
to  the  defendant,  at  certain  prices  charged.  The  declaration  was 
for  goods  sold  and  delivered,  with  the  usual  money  counts.  The 
case  was  submitted  to  a  referee  by  a  common  rule  of  court,  who 
made  an  award  in  favor  of  the  plaintiff,  subject  to  the  opinion  of 
the  court  on  questions  reserved,  stating  the  facts  in  his  report,  on 
which  the  decision  of  those  questions  depends. 

The  facts  tended  to  show  that  the  bark  was  the  property  of  the 
plaintiff;  that  the  contiact  for  the  sale  of  it  was  made  by  her  agent, 
George  H.  Huntington,  by  her  authority ;  that  it  was  made  in 
writing  by  the  agent,  in  his  own  name,  not  stating  his  agency,  or 
naming  or  referring  to  the  plaintiff,  or  otherwise  intimating,  in  the 
written  contract,  that  any  other  person  than  the  agent  was  inter- 
ested in  the  bark. 

Objection  was  made,  before  the  referee,  to  the  admission  of  parol 
evidence,  and  to  the  right  of  the  plaintiff*  to  maintain  the  action  in 
her  own  name.  The  referee  decided  both  points  in  favor  of  the 
plaintiff,  holding  that  the  action  could  be  maintained  by  the  princi- 
pal and  owner  of  the  property,  subject  to  any  set-off,  or  other  equit- 
able defence,  which  the  buyer  might  have,  if  the  action  were  brought 
by  the  agent. 

The  court  are  of  opinion,  that  this  decision  was  correct  upon  both 
points.  Indeed  they  resolve  themselves  substantially  into  one ;  for 
prima  facie,  and  looking  only  at  the  paper  itself,  the  property  is 
sold  by  the  agent,  on  credit;  and  in  the  absence  of  all  other  proof, 
a  promise  of  payment  to  the  seller  would  be  implied  by  law ;  and 
if  that  presumption  of  fact  can  be  controverted,  so  as  to  raise  a 
promise  to  the  principal  by  implication,  it  must  be  by  evidence 
aliunde,  proving  the  agency  and  property  in  the  principal. 

It  is  now  well  settled  by  authorities,  that  when  the  property  of 
one  is  sold  by  another,  as  agent,  if  the  principal  give  notice  to  the 
purchaser,  before  payment,  to  pay  to  himself,  and  not  to  the  agent, 
the  purchaser  is  bound  to  pay  the  principal,  subject  to  any  equities 
of  the  purchaser  against  the  agent. 

When  a  contract  is  made  by  deed  under  seal,  on  technical  grounds, 
no  one  but  a  party  to  the  deed  is  liable  to  be  sued  upon  it ;  and  there- 
fore, if  made  by  an  agent  or  attorney,  it  must  be  made  in  the 
name  of  the  principal,  in  order  that  he  may  be  a  party,  because 
otherwise  he  is  not  bound  by  it. 

But  a  different  rule,  and  a  far  more  liberal  doctrine,  prevails  in 
regard  to  a  written  contract  net  under  seal.    In  the  case  of  Higgins 


;LHviJ  FAi.  ^51 

ees.  &  Welsl  nvn  as  a  general  propo- 

"-•---'-•  -  both  of  th- -  • '-'-t- 

cted  as  ^ 

ii.e  contract  ol  :-  '        '  ■  i- 

iie  one  hand  to.  ?■  1: 

principals ;  and  > 
o  be  in  writin.:' 
iiie  distinction  !•:  r,; 

'"^   who  has  coiiu    ..._.,  .i,    ..  .:n.l 

ihority  of  a  principal,  seeks  m 

.  on  the  ground  V        '         (ntracica   n: 
The  doctrine  proct  le  ground  tli,, 

may  each  be  bound  because  b\ 

-e  he  has  expressly  !.  ;  and  the  pr 

a  contract  made  by  his  for  his  account.     1 

dasequi,  15  East,  62;  Ma.^...  -.  Atkinson,  2  Mees.  &  \.  . 
Trueman  v.  Loder,  11  Ad.  &  EI.  589;  Taintor  v.  Prendej  ■ 
^^  Hill  72 ;  Edwards  v.  Golding,  20  Verm.  30.    It  is  analogous 
ordinary  case  of  a  dormant  partner.     He  is  not  named  or 
d  to  in  the  contract;  yet  as  the  contract  is  shown  in  fact  to 
de  for  his  benerit,  and  by  his  authority,  he  is  liable, 
on  the  other  hand,  where  the  contract  is  made  for  the  benefit 
not  named,  though  in  writing,  the  latter  may  sue  on  the  con- 
jointly with  others,  or  alone,  according  to  the  interest.    Gar- 
Handley,  4  B.  &  C.  664 ;  Sadler  v.  Leigh,  4  Campb.  195 ;  Cop- 
Walker,  7  Taunt.  237 ;  Story  on  Agency,  §  410.     The  rights 
"ties  of  a  principal,  upon  a  witten   '• 
•it,  do  not  depenH  w:-:'--^  th'.'  {■^■•'  -^f  t' 
.ent  itsei 
,  and  2,  \^ 
ire  necessarily  inquir  ik 

k  of  Columbia,  5  Wi... 
'  we  'think  this  doctrine 

cited  in  the  ac' 
14,  was  a  case  a\  i 
/a  a  Cv^ntract  of 
e  case  of  the  \. H 
the  ground  that,  in  ar. 
'-•^'^  but  the  promisee  cai^ 
made  by  a  factor,  t' 
.s  not  brought  <"  • 
receipt  is  a  wr' 
'      ';mt,  of 


1  to  the  v-t  it  is 


;d]5Ci.o?E) 


1 8: 

:ACiAL 

7  Cusl 

bllAW,    ...    .,- 

the  value  of  a 

quantit\^  of  hemic 

rlie  plaintiff 

to  the  defendin' 

aration  was 

for  goods  sol 

iUnts.      The 

•    ■')£  court,  who 

the  opinion  of 

CllC    COUl  i 

11  his  report,  on 

which  V 

T!:. 

w  that  tiie 

bark 

property  of  the 

■  ■::,, 

for  the  sale 

of  \l 

.;!e  by  her  agent, 

by  her  authorit" 

t   was  made   in 

ui  his  own  •■  '^ 

--    ■ 

his  agency,  or 

■  >  the  plaint i 

irimating,  in  the 
•jfent  was  inter- 

uiaae,  before  the  mission  of  parol 

cbe  right  of  the  .  ain  the  action  in 

:  referee  dec"  {>omts  in  favor  of  the 

''^'  action  Cv.  M    .i^  .naintained  by  the  princi- 

jrty,  subject  to  any  set-off,  or  other  equit- 

-  Duyer  might  have,  if  the  action  were  brought 

1  -  n  was  correct  upon  both 

poiri.  ihstantially  into  one;  for 

p^'in:.  ■•  at  the  paper  itself,  the  property  is 

sold  L,,  .nd  in  the  absence  of  all  other  proof, 

a  promis'  -eller  would  be  implied  by  law;  and 

if  that  p  m  be  controverted,  so  as'  to  raise  a 

promise   ;  implication,  it  must  be  by  evidence 

■le,  prov  •  'ty  in  the  principal. 

s  now  .  th?.t  "xhen  the  property  of 

ve  notice  to  the 

ot  to  the  agent, 

'■  to  any  equities 

)n  technical  grounds, 

i  jn  it;  and  there- 

oe  made  in  the 

00  a  party,  because 


iiic  prii' 
he  is  nc. 
But  a  dift'erent  rul-. 


ral  doctrine,  prevails  in 


.f  tt; 


LIABILITY   THIRD    PARTY   TO   PRINCIPAL.  45 1 

V.  Senior,  8  Mees.  &  Welsh.  834,  it  is  laid  down  as  a  general  propo- 
sition, that  it  is  competent  to  show  that  one  or  both  of  the  contract- 
ing parties  were  agents  for  other  persons,  and  acted  as  such  agents 
in  making  the  contract  of  sale,  so  as  to  give  the  benefit  of  the  con- 
tract, on  the  one  hand  to,  and  charge  with  liability  on  the  other,  the 
un-named  principals ;  and  this  whether  the  agreement  be  or  be  not 
required  to  be  in  writing,  by  the  statute  of  frauds.  But  the  court 
mark  the  distinction  broadly  between  such  a  case  and  a  case  where 
an  agent,  who  has  contracted  in  his  own  name,  for  the  benefit,  and 
by  the  authority  of  a  principal,  seeks  to  discharge  himself  from 
liability,  on  the  ground  that  he  contracted  in  the  capacity  of  an 
agent.  The  doctrine  proceeds  on  the  ground  that  the  principal  and 
agent  may  each  be  bound ;  the  agent,  because  by  his  contract  and 
promise  he  has  expressly  bound  himself;  and  the  principal,  because 
it  was  a  contract  made  by  his  authority  for  his  account.  Paterson 
V.  Gandasequi,  15  East,  62;  Magee  v.  Atkinson,  2  Mees.  &  Welsh. 
440;  Trueman  v.  Loder,  11  Ad.  &  El.  589;  Taintor  v.  Prender- 
gast,  3  Hill  72 ;  Edwards  v.  Golding,  20  Verm.  30.  It  is  analogous 
to  the  ordinary  case  of  a  dormant  partner.  He  is  not  named  or 
alluded  to  in  the  contract ;  yet  as  the  contract  is  shown  in  fact  to 
be  made  for  his  benefit,  and  by  his  authority,  he  is  liable. 

So,  on  the  other  hand,  where  the  contract  is  made  for  the  benefit 
of  one  not  named,  though  in  writing,  the  latter  may  sue  on  the  con- 
tract, jointly  with  others,  or  alone,  according  to  the  interest.  Gar- 
rett V.  Handley,  4  B.  &  C.  664;  Sadler  v.  Leigh,  4  Campb.  195 ;  Cop- 
pin  V.  Walker,  7  Taunt.  237;  Story  on  Agency,  §  410.  The  rights 
and  liabilities  of  a  principal,  upon  a  written  instrument  executed 
by  his  agent,  do  not  depend  upon  the  fact  of  the  agency  appearing 
on  the  instrument  itself,  but  upon  the  facts;  i,  that  the  act  is  done 
in  the  exercise,  and  2,  within  the  limits,  of  the  powers  delegated  ;  and 
these  are  necessarily  inquirable  into  by  evidence.  Mechanics'  Bank 
V.  Bank  of  Columbia,  5  Wheat.  326. 

And  we  think  this  doctrine  is  not  controverted  by  the  authority 
of  any  of  the  cases  cited  in  the  defendant's  argument.  Hastings  v. 
Lovering,  2  Pick.  214,  was  a  case  where  the  suit  was  brought  against 
an  agent,  on  a  contract  of  warranty  upon  a  sale  made  in  his  own 
name.  The  case  of  the  United  States  v.  Parmele,  Paine  252,  was 
decided  on  the  ground  that,  in  an  action  on  a  written  executory 
promise,  none  but  the  promisee  can  sue.  The  court  admit  that,  on 
a  sale  of  goods  made  by  a  factor,  the  principal  may  sue. 

This  action  is  not  brought  on  any  written  promise  made  by  the 
defendant;  the  receipt  is  a  written  acknowledgement,  given  by  the 
plaintiff  to  the  defendant,  of  part  payment  for  the  bark,  and  it 
expresses  the  terms  upon  which  the  sale  had  been  made.  The  de- 
fendant, by  accepting  it,  admits  the  sale  anc  its  terms ;  but  the  law 
raises  the  promise  of  payment.  And  this  is  by  implication,  prima 
facie,  a  promise  to  the  agent ;  yet  it  is  only  prima  facie,  and  may  be 


452 


UNDISCLOSED   PRINCIPAL. 


controlled  by  parol  evidence  that  the  contract  of  sale  was  for  the 
sale  of  property  belonging  to  the  plaintiff,  and  sold  by  her  authority 
to  the  defendant,  by  the  agency  of  the  person  with  whom  the  de- 
fendant contracted. 

We  are  all  of  opinion  that  the  provisions  of  Rev.  Sts.  C.  28, 
§  201,  do  not  apply  to  the  sale  of  the  bark,  as  made  in  this  case. 

Judgment  on  award  for  the  plaintiff.^ 


ELKINS  V.  BOSTON  and  MAINE  RAILROAD. 

1849.     Supreme  Court  of  Judication  of  New  Hampshire. 
19  N.  H.  337. 


Assumpsit. — The  declaration  alleged  that  on  the  twenty-first  of 
April,  1847,  the  defendants  were  common  carriers  of  goods  for  hire 
from  Andover,  Mass.,  to  Exeter ;  that  the  plaintiff  delivered  to  them 
an  overcoat  to  be  carried  from  Andover  to  Exeter,  and  delivered  to 
the  plaintiff  for  a  reasonable  reward  to  be  paid  therefor,  in  con- 
sideration of  which  the  defendants  received  the  coat  and  undertook 
to  transport  and  deliver  it  accordingly,  which  they  have  neglected 
and  refused  to  do. 

At  the  trial  upon  the  general  issue  it  appeared  in  evidence  that 
the  overcoat  belonging  to  the  plaintiff,  whose  name  is  Charles  D. 
Elkins,  was  rolled  up  in  a  bundle  with  another  overcoat,  belonging 
to  Jonathan  Elkins,  and  a  label  put  upon  the  bundle  with  this  ad- 
dress upon  it :  "Jo'^^than  Elkins,  Exeter,  N.  H."  The  bundle  was 
left  by  Jonathan  Elkins  in  the  common  room  of  the  depot  at  An- 
dover, and  the  depot  master  was  requested  by  him  to  send  the  bun- 
dle by  the  next  passenger  train  to  Exeter,  which  he  said  he  would  do. 

The  defendants  objected  that  the  evidence  did  not  support  the 
declaration,  but  varied  materially  therefrom  ;  but  the  court  ruled  it  to 
be  sufficient. 

The  jury  returned  a  verdict  for  the  plaintiff,  which  the  defendants 
moved  to  set  aside. 

Gilchrist,  C.  J. — The  only  question  in  the  case  is  whether  the 
evidence  supports  the  declaration.  It  is  alleged  that  the  plaintiff 
delivered  to  the  defendants  an  overcoat,  to  be  carried  from  An- 
dover to  Exeter,  and  delivered  to  the  plaintiff.  It  appeared  that  two 
overcoats  were  rolled  up  in  a  bundle,  one  of  which  belonged  to  the 
plaintiff  and  the  other  belonged  to  Jonathan  Elkins ;  that  the  bundle 

'^  In  Darrow  v.  Home  Produce  Co.,  57  Fed.  463,  a  written  contract  was  exe- 
cuted by  two  agents  in  their  own  names  without  disclosing  their  principals. 
It  was  held  that  an  action  could  be  maintained  by  one  undisclosed  principal 
against  the  other. 


I 


LIA  -153 

>  as  directed  to  Jonathan  T  t.    The 

only  question  properly  rais'  'se  facts 

the  plain!  i ft'  may  maintain 

:-ase  of  Weed  v.  "    -'id, 

534,  cited  by  th:  .  ra- 

ed  that  the  rail;  to 

!   the  plaintitis  a  ;.  ...  .   ..^  ':d 

mk  bills,  but  that  they  carel  trunk  a; 

he  second  count  alle-r-^i   ■^"  —   rarry  cu - 

s  contents.     The  evi  iaintiff's 

raveling,  directed  ill. - 
-.  arrival  at  the  place 
unks  was  lost,  cont 
he  had  retained  for 

1  to  one  Martin.    It  was  said  by  Cowen,  J.,  that  the 
laterial.     "The  contract,  as  set  forth,  was  to  carry  tl 
loney  of  the  plaintiffs.    The  proof  is  that  the  trunk  b 
tftin,  a  stranger,  nor  was  it  shown  that  the  plaintiffs  hau    ;/; 
ction  with  it.    If  the  trunk  were  Barnes'  (the  clerk)  the  vari- 
svould  be  the  same,  and  so  I  should  think  if  he  had  hired  or 
ved  it  of  Martin  for  his  own  use."    *    *    *    "The  proof  is  at 
of  a  contract  with  the  plaintiffs  to  carry  the  money  only.    The 
ation,  then,  fails  in  describing  correctly  a  special  executory 
ict,    wherein   great   exactness   is   always   demanded.     Where 
'claration  is  on  a  promise  to  do  several  things,  and  only  one 
ved,  this  is  a  variance.    *    *    *    The  whole  contract  in  the 
t  bar  was  made  ostensibly  \v'      "         s.    If  in  lee 
■  can  be  turned  in  favor  of  tl  -ts,  it  must  ■ 

Mr  ownership  of  the  articles  en  to  h 

can  be  no  pretence  that  the  t)  ,irnii<'^- 

of  Barnes,  in  which  the  pla 
•,  would  be  comprehend'"' 
!S  far  the  decision  is  not 
•f  variance  was  distin 
iirned  out  not  to  be  > 
permitted  to  amend 
n.     But  the  learned 
on  whether  Barnes  > 
1  bailee,  having  him 
expenses,  says,  "It  i. 
'  e  can  enure 
not  arise  in 
ns  worthy  of 
nsc  the  coar 

1  of  Jonathan  r  -■  re- 

,    .  I'  the  plaintiff  a  ..rial 

hat  part:  ■  the  plaintiff  -session 


45- 


UNDISCLOSFX' 


rontrolled  by  parol  evidence  that 
sale  of  property  belonging  to  the  pia.v 
to  the  defendant,  by  the  agency  of  t). 
fendant  contracted. 

We  are  all  of  opinion  that  the  pr 
§  20I,  do  not 

Tudcmeiit  i 


'as  for  the 

r  authority 

..jm  the  de- 

Sts.  C.  28, 
his  case. 


ELK 


RAILROAD. 


1849. 


i':j  :\.  a. 


o.\ 


Mew  Hampshire. 


ration  al' 

\  the  twenty-first  of 

forn    ■- 

r^:  of  goods  for  hire 

. 

1  elivered  to  them 

i    ,Ml(ji;V(.-r    H' 

ind  delivered  to 

reward  to  ■ 

here  for,  in  con- 

>>.oat  and  undertook 

Lhey  have  neglected 

Irt 


dover,  and  11. 
die  by  the.  ne; 

The  (■ 
declarati' 
be  suffici 

The  jut}-  . 
ni<^veH  to  «<'i 


10  the 
.,  .  ,  .  -  Exeter, 
.  . vTCoats  were  r 
piaintifT  and  the  • 

'In  Darr   ■■    -   ti 
cuted  bj' 
Tt  was  h. ,  . 
against  the  oti: 


,  ,     .,   it  appeared  in  evidence  that 
plaintifif,  whose  name  is  Charles  D. 
aidle  with  another  overcoat,  belonging 
x'l  put  upon  the  bundle  with  this  ad- 
ins,  Exeter,  N.  H."    The  bundle  was 
■  c^mmnn  room  of  the  depot  at  An- 
[ly  him  to  send  the  bun- 
iiicli  he  said  he  would  do. 
iie  evidence  did  not  support  the 
--v..  fron^ :  i>i.it  the  court  ruled  it  to 

I  If  piaiiiMii,  which  the  defendants 

whether  the 
the  plaintiff 
.1  from  An- 
■red  that  two 
i'nged  to  the 
L licit  the  bundle 


LIABILITY   THIRD    PARTY   TO   PRINCIPAL.  453 

was  directed  to  Jonathan  Elkins,  and  left  by  him  at  the  depot.  The 
only  question  properly  raised  by  the  case  is  whether  upon  these  facts 
the  plaintiff  may  maintain  an  action  against  the  defendants. 

In  the  case  of  Weed  v.  The  Saratoga  and  Schenectady  Railroad, 
19  Wend.  534,  cited  by  the  counsel  for  the  defendants,  the  declara- 
tion alleged  that  the  railroad  company  promised  the  plaintiffs  to 
carry  for  the  plaintiffs  a  trunk  containing  certain  goods,  etc.,  and 
bank  bills,  but  that  they  carelessly  lost  the  trunk  and  its  contents. 
The  second  count  alleged  an  undertaking  to  carry  the  trunk  and 
its  contents.  The  evidence  showed  that  the  plaintiff's  clerk,  who 
was  traveling,  directed  his  baggage  to  be  put  into  the  proper  car,  but 
on  his  arrival  at  the  place  of  his  destination,  he  found  that  one  of 
his  trunks  was  lost,  containing  $285  belonging  to  the  plaintiffs, 
which  he  had  retained  for  his  traveling  expenses.  The  trunk  be- 
longed to  one  Martin.  It  was  said  by  Cowen,  J.,  that  the  variance 
was  material.  "The  contract,  as  set  forth,  was  to  carry  the  trunk 
and  money  of  the  plaintiffs.  The  proof  is  that  the  trunk  belonged 
to  Martin,  a  stranger,  nor  was  it  shown  that  the  plaintiffs  had  any 
connection  with  it.  If  the  trunk  were  Barnes'  (the  clerk)  the  vari- 
ance would  be  the  same,  and  so  I  should  think  if  he  had  hired  or 
borrowed  it  of  Martin  for  his  own  use."  *  *  *  "The  proof  is  at 
most  of  a  contract  with  the  plaintiffs  to  carry  the  money  only.  The 
declaration,  then,  fails  in  describing  correctly  a  special  executory 
contract,  wherein  great  exactness  is  always  demanded.  Where 
the  declaration  is  on  a  promise  to  do  several  things,  and  only  one 
is  proved,  this  is  a  variance.  *  *  *  The  whole  contract  in  the 
case  at  bar  was  made  ostensibly  with  Barnes.  If  in  legal  construc- 
tion it  can  be  turned  in  favor  of  the  plaintiffs,  it  must  be  in  respect 
to  their  ownership  of  the  articles  undertaken  to  be  conveyed,  and 
there  can  be  no  pretence  that  the  trunk  of  a  stranger,  Martin,  or  the 
trunk  of  Barnes,  in  which  the  plaintiffs  had  leave  to  deposit  their 
money,  would  be  comprehended  within  the  principle." 

Thus  far  the  decision  is  not  an  authority  for  the  defendants.  The 
question  of  variance  was  distinctly  raised  and  decided,  and  although 
it  finally  turned  out  not  to  be  very  material,  inasmuch  as  the  plain- 
tiffs were  permitted  to  amend,  by  striking  out  the  trunk  from  the 
declaration.  But  the  learned  judge  goes  farther,  and  after  raising 
the  question  whether  Barnes  was  not  more  than  a  mere  agent,  and 
was  not  a  bailee,  having  himself  an  interest  in  the  money  for  his 
traveling  expenses,  says,  "It  is  doubtful,  at  least,  whether  a  promise 
to  carry  for  a  bailee  can  enure  to  the  benefit  of  the  bailor,"  although 
that  question  did  not  arise  in  the  case.  Upon  this  question  there 
are  several  decisions  worthy  of  consideration. 

In  the  present  case  the  coat,  which  is  the  subject  of  this  action, 
being  in  the  possession  of  Jonathan  Elkins,  the  latter  must  be  re- 
garded as  the  bailee,  and  the  plaintiff  as  the  bailor.  It  is  immaterial 
for  what  particular  purpose  the  plaintiff's  coat  was  in  the  possession 


454 


UNDISCLOSED    PRINCIPAL. 


of  Jonathan  Elkins.  The  purpose  probably  was  that  the  latter  might 
cause  it  to  be  forwarded  to  the  plaintiff.  In  such  a  case  it  is  clear  that 
the  bailee  has  such  a  continuing  interest  in  the  goods,  until  their 
arrival  at  the  place  of  destination,  as  to  entitle  him  to  sue  the  car- 
rier in  case  they  are  lost  or  damaged  on  their  passage.  Thus,  in 
the  case  of  Freeman  v.  Birch,  i  Nev.  &  Man.  420,  which  was  an 
action  against  a  carrier  for  negligence,  it  appeared  that  the  plaintiff, 
a  laundress,  residing  at  Hammersmith,  was  in  the  habit  of  sending 
linen  to  and  from  London  by  the  defendant's  cart,  which  traveled 
from  Chiswick  to  London.  A  basket  of  linen  belonging  to  one 
Spinks  was  sent  by  the  defendant's  cart,  and  on  its  way  to  London 
part  of  its  contents  were  either  lost  or  stolen.  Spinks  did  not  pay 
the  carriage  of  the  linen.  It  was  objected  on  the  part  of  the  de- 
fendant that  the  present  action  was  misconceived,  and  that  the  ac- 
tion should  have  been  brought  by  the  owner  of  the  linen.  But  the 
objection  was  overruled  and  a  verdict  was  found  for  the  plaintiff.  A 
motion  was  made  for  a  new  trial,  but  refused  by  the  court  of 
Queen's  Bench  on  the  ground  that  under  the  circumstances  the 
bailee  retained  a  special  property  in  the  goods  sufficient  to  support 
the  action. 

The  property  in  articles  bailed  is  for  some  purposes  in  the  bailee 
and  for  some  in  the  bailor.  The  right  of  action  must  partake  of 
the  same  properties,  and  must  so  continue  until  it  is  finally  fixed 
and  determined  by  one  or  the  other  party  appropriating  it  to  him- 
self. The  decision  in  Freeman  v.  Birch,  although  it  clearly  estab- 
lishes the  right  of  a  bailee  to  sue,  does  not  necessarily  exclude  the 
bailor  from  bringing  an  action,  if  he  chooses  to  anticipate  the  bailee 
in  so  doing.  The  rule  in  such  cases  is  stated  by  Parke,  B.,  to  be 
that  either  the  bailor  or  the  bailee  may  sue,  and  whichever  first 
obtains  damages,  it  is  a  full  satisfaction.  Nichols  v.  Bastard,  2  Cro. 
Mees.  &  Ros.  660. 

The  principle  appears  to  be  well  settled,  that  if  it  is  not  expressed 
that  an  agent  contracts  in  behalf  of  another,  and  the  name  of  the 
principal  is  not  disclosed  by  him,  a  suit  may  be  maintained  in  the 
name  of  the  principal.  In  the  present  case,  Jonathan  Elkins  was 
clearly  the  agent  of  the  plaintiff,  and  the  name  of  the  plaintiff  was 
not  disclosed  by  him.  This  principle  is  recognized  in  the  case  of 
Sims  V.  Bond,  5  B.  &  Ad.  389,  where  Lord  Denman  says,  "It  is 
a  well-established  rule  of  law,  that  where  a  contract,  not  under  seal, 
is  made  with  an  agent  in  his  own  name,  for  an  undisclosed  princi- 
pal, either  the  agent  or  the  principal  may  sue  upon  it ;  the  defendant, 
in  the  latter  case,  being  entitled  to  be  placed  in  the  same  situation 
at  the  time  of  the  disclosure  of  the  real  principal,  as  if  the  agent  had 
been  the  contracting  party."  In  the  case  of  Higgins  v.  Senior,  8 
Mees.  &  Wells  834,  it  was  held  that  the  suit  might  be  maintained  on 
the  contract,  either  in  the  name  of  the  principal  or  of  the  agent,  and 
that,  too,  although  required  to  be  in  writing,  by  the  statute  of  frauds. 


4 


IIRD  i'.\'  :55 

■2  Wenc  1-iill  -^2. 

..,...,•  r-rted 

'  '11. 

V.    Thr. 


■vere  then  n; 

a.      It   was  ;.    w.c 

ent  was  ma  :ompan\ 

■'     'Citation  -  -^ 

/{-en  tho 
ract  Hi 
. yers  at  . 
Ltie   coiiLiatt   directl" 

ii'  agreed  with  E.  ^  .  ..., .,  _. 

.  without  the  plai  ^r  the  c. 

o,  without  the  fu;:  i.:;,i  >  r..i.-.>  c-ij-,  a^.eed  with  j_.',  .i  v-,, 
:',   it  was   held   that  the  plaintitT  misfht   maintain   an   action 
t  D,  for  not  deV       '  ".y  bringing  the 

,  the  plaintiff  af.  ,  D,  by  C,  and 

not  afterwards  recover  ironi  B.     Sanderson  v.  Lamberton,  6 
129. 

■n  the  principles  above  stated,  our  opinion  is,  that  the  plaintiff 
laintain  this  action. 
,anent  on  the  verdict.^ 


'. ARDNER  &  ^  EXE< 

1844.      SuPREil 


IS  an  action 


,^,  r 


proceeds  of  sixty-n 
.1  caused  to  be  so. 
•" ;  in  addition  ti 
•  was  tried  on  ti 
verdict  was  reii  : 

!t  20-100  dollars,  dai 
-ly. 
the  defendants  excc 


UNDISCLOSED   PRi 


aathaii  Elkins.  The  purpose  ]- 
'i  !•>  !„■  iVirwarded  to  the  plait ' 
h  a  continuing  ' 
,uii\  (i  at  u!c  pjice  of  destination, 
rier  in  case  they  arc  lost  or  damr:i 
the  case  of  Freeman  v.  F" 
action  against  a  carrier  fr- 
a  laundress,  r 
linen  to  and  r 
from  Chiswick  to  Londo- 
Spinks  was  sent  by  the  d- 
part  of  its  contents  were 
the  carriage  of  tl     ' 
fendant  that  the  . 


"  r  might 
*  lear  that 
imtil  their 
iie  the  ear- 
Thus,  in 
was  an 
•;laintiff. 


Th 
that  an  a,.. 

"'■i'i'Mpal    1.. 

of  the 


latter  case, 
...  w.,  time  of  the 
been  the  contract' 
Mees.  &  Wen    ^' 
the  contract,  .: 
that,  too,  although  rcc, 


■longing  to  one 

way  to  London 

iaks  did  not  pay 

part  of  the  de- 

-Uid  that  the  ac- 

i-iie  linen.     But  the 

.'I  for  the  plaintiff.    A 

;efused  by  the  court  of 

r  the  circumstances  the 

ods  sufficient  to  support 

irposes  in  the  bailee 

ol  action  must  partake  of 

''".v.vs  until  it  is  finally  fixed 

•opriating  it  to  him- 

igh  it  clearly  estab- 

1  necessarily  exclude  the 

:^  cuo.>-^cs  to  anticipate  the  bailee 

es  is  stated  by  Parke,  B.,  to  be 

\y  sue,  and  whichever  first 

Nichols  V.  Bastard,  2  Cro. 

\-r\\  sett  ■  '  f  it  is  not  expressed 

d  the  name  of  the 

'•  maintained  in  the 

inathan  Elkins  was 

"'  the  plaintiff  was 

'  ill  the  case  of 

says,  "It  is 

under  seal, 

princi- 

endant, 

le  situation 

•  ^  agent  had 

'.  Senior,  8 


■  y  sue  upnn  ' 
be  placed  i 
-'1  principa; 

.  ise  of  i 


suit  migiii.  I.U-  uiaintained  on 
rincipal  or  of  the  agent,  and 
-ing,  by  the  statute  of  frauds. 


m 


LIABILITY   THIRD   PARTY   TO   PRINCIPAL.  455 

Beebe  v.  Robert,  12  Wend.  413 ;  Taintor  v.  Prendergast,  3  Hill  72. 
The  same  principle  was  adopted  by  the  supreme  court  of  the  United 
States,  in  the  memorable  case  of  the  loss  of  the  steamer  Lexington, 
in  Long  Island  Sound.  In  the  case  of  The  New  Jersey  Steam  Navi- 
gation Co.  V.  The  Merchants  Bank,  6  Howard  344,  the  bank  had  de- 
livered to  Harnden,  an  express  agent,  a  large  amount  of  specie  for 
transportation,  by  whom  it  was  delivered  to  the  Steam  Navigation 
Co.,  who  were  then  running  the  Lexington  between  New  York  and 
Stonington.  It  was  held  that,  notwithstanding  the  contract  of 
affreightment  was  made  by  Harnden  with  the  company  personally 
for  the  transportation  of  the  specie,  it  was,  in  contemplation  of  law, 
a  contract  between  the  bank  and  the  company,  and  although  Harn- 
den made  the  contract  in  his  own  name,  and  without  disclosing  the 
name  of  his  employers  at  the  time,  the  bank  might  maintain  a  suit 
upon  the  contract  directly  against  the  company.  So  where  the 
plaintiff  agreed  with  B,  a  common  carrier,  for  the  carriage  of  goods, 
and  B,  without  the  plaintiff''s  directions,  agreed  for  the  carriage  with 
C,  who,  without  the  plaintiff's  knowledge,  agreed  with  D,  a  third 
carrier,  it  was  held  that  the  plaintiff  might  maintain  an  action 
against  D,  for  not  delivering  the  goods,  and  that  by  bringing  the 
action,  the  plaintiff  affirmed  the  contract  made  with  D,  by  C,  and 
could  not  afterwards  recover  from  B.  Sanderson  v.  Lamberton,  6 
Binn.  129. 

Upon  the  principles  above  stated,  our  opinion  is,  that  the  plaintiff 
may  maintain  this  action. 

Judgment  on  the  verdict.^ 


GARDNER  &  SAGER  v.  ALLEN'S  EXECUTOR. 
1844.     Supreme  Court  of  Alabama.     6  Ala.  187. 

This  was  an  action  of  assumpsit,  at  the  suit  of  the  defendant  in 
error  against  the  plaintiff's.  The  declaration  contains  a  number  of 
counts,  among  which  were  several  seeking  to  charge  the  defendants 
for  the  proceeds  of  sixty-nine  bales  of  cotton,  which  they  had  ship- 
ped to,  and  caused  to  be  sold  in  Liverpool  for  the  plaintiffs'  account 
and  benefit ;  in  addition  to  which,  the  common  counts  are  added. 
The  cause  was  tried  on  the  pleas  of  non-assumpsit,  payment  and 
set-off.  A  verdict  was  returned  for  the  plaintiffs  for  five  hundred 
and  ninety-eight  20-100  dollars,  damages,  and  a  judgment  was  ren- 
dered accordingly. 

On  the  trial,  the  defendants  excepted  to  the  ruling  of  the  judge 
in  his  charge  to  the  jury.  It  was  proved  that  the  plaintiff  shipped 
to  Messrs.  Labuzan  &  Pollard,  at  Mobile,  sixty-nine  bales  of  cotton. 

^  See  Talcott  v.  Wabash  Railroad  Co.,  159  N.  Y.  461. 


456  UNDISCLOSED    PRINCIPAL, 

The  latter  placed  the  cotton  in  the  hands  of  the  defendants  to  be 
shipped  to  Liverpool,  and  received  an  advance  thereon.  The  ship- 
ment was  made  accordingly,  and  the  cotton  sold  in  Liverpool,  yield- 
ing a  sum  sufficient  to  reimburse  the  defendants  their  advance,  and 
upwards  of  five  hundred  dollars  in  addition.  For  this  excess,  still 
remaining  in  their  hands,  this  action  was  brought.  Messrs.  Labuzan 
&  Pollard  were  commission  merchants,  and  received  the  plaintiff's 
cotton  for  sale  or  shipment.  The  defendants  proposed  to  show 
that  they  were  ignorant  of  the  plaintiff's  right  to  the  cotton  in  ques- 
tion ;  that  they  received  it  from  Messrs.  Labuzan  &  Pollard  without 
the  knowledge  that  it  was  not  their  property ;  and  that  the  latter 
were  indebted  to  them  in  the  sum  of  five  hundred  dollars,  or  there- 
abouts. In  consequence  of  this  indebtedness,  they  resisted  a  recov- 
ery by  the  plaintiff.  The  court,  on  motion  of  the  plaintiff's  coun- 
sel, rejected  the  evidence  offered  by  the  defendants,  on  the  ground 
that  it  was  inadmissible. 

Collier,  C.  J. — It  has  been  often  stated,  as  an  acknowledged 
principle,  if  a  factor  sells  goods  in  his  own  name,  the  purchaser, 
without  a  knowledge  of  any  other  person  being  a  party  to  the  con- 
tract, in  the  absence  of  collusion,  is  entitled  to  regard  the  debt  as 
due  to  the  factor,  so  as  in  an  action  brought  by  the  principal,  to 
set  off  a  debt  due  from  the  factor  to  himself.  (Paley's  Agency, 
326  to  35.)  Mr.  Justice  Story,  in  his  treatise  on  the  Law  of 
Agency,  says,  if  the  agent  is  the  only  known  or  supposed  principal, 
the  person  dealing  with  him  will  be  entitled  to  the  same  rights  of 
set-off  as  if  the  agent  were  the  true  and  only  principal,  (p.  432.) 
And  in  such  case,  the  set-off  is  equally  good,  whether  a  suit  be 
brought  in  the  name  of  the  principal,  or  of  the  factor  or  agent,  for 
the  price  of  the  goods.  (Id.  452;  see  also  id.  417-8-9,  and  cases 
there  cited.)  In  Mitchell  v.  Bristol  &  Powell  (10  Wend.  492), 
the  law  is  laid  down  in  equivalent  terms,  and  the  court,  after  citing 
several  English  decisions,  say,  in  these  cases  it  is  held,  that  it  makes 
no  difference  whether  the  sale  by  the  agent  is  under  a  del  credere 
commission  or  not ;  the  reason  of  the  law  is  the  same  in  both  cases. 
But  it  is  needless  to  elaborate  the  point  at  greater  length.  The 
authorities  cited  very  fully  show  that  it  is  quite  immaterial  whether 
the  principal  or  his  agent  is  the  plaintiff.  If  the  latter  sue,  the 
defendant  may  avail  himself  of  any  set-off,  which  he  has  against 
the  former ;  or,  if  the  former  be  the  actor  in  the  suit,  the  purchaser 
may  set  off  a  claim  which  he  has  against  the  latter,  if  he  purchased 
under  a  just  belief  authorized  by  the  facts  of  the  case,  that  the 
agent  was  the  real  owner  of  the  goods.  (Story's  Agency,  417-8.) 
And  this  seems  to  be  the  current  or  decision,  both  in  England  and 
the  United  States,  without  regard  to  the  extended  or  restricted 
terms  of  the  statutes  of  set-off.  (Caines  v.  Brisban,  13  Johns.  Rep. 
9.)  This  being  the  law,  it  is  clear,  that  the  court  should  have  per- 
mitted the  defendants  to  show  that  they  shipped  the  cotton  on  ac- 


LIABIUTY   TH]I  457 

t  Messrs.  Labuzr  ranees  as 

"11  induce  them  :  ty.     The 

•y  of  this  evideri.  -nsidered 

;iry,  under  the  d 
lion  is  an  error,  i      ■ 
remanded.^ 


BAXTER  AND  -N. 

1898.     Supreme  C  Minn.  434 

iiTCHELL^  J. — One  Shea  ihe  knowlede;e  of  the  del 

aiit,  a  commission  merclr 
consignors,  fruit  and  pro 

■:  time,  he  dealt  on  his  own  accouiiu  lu  tiie  saaie  kinu 
_  ,    The  defendant  was  a  dealer  on  his  own  account  in  i 
city,  in  the  same  kind  of  property.     The  plaintiffs  were  ens 
in  the  fruit  and  produce  business  at  Nauvoo,  111.,  and  had  for  >  .... 
been  in  the  habit  of  shipping  such  property  to  Shea  as  their  agent, 
to  be  by  him  sold  on  their  account,  and  to  remit  to  them  the  pro- 
ceeds, less  his  commissions.   For  this  purpose,  in  August,  1896,  they 
slr.pped  to  him  a  consignment  of  fruit.     Shea  sold  the  fruit  to"  the 
fit-iendant  on  August  2i.=t.     There  ■.■--.:;  no  express  agreement  be 
tween  Shea  and  the  defendant  credit,,  but  the 

price  was  not  paid  at  the  tim^     '  .ery  of  'l""  +*    ' 

torn  of  those  in  the  trade  i-  ^  being 

!    t  \vecn   themselves   onc' 
.'   ulant  had  a  settlemeni, 
v.-,;  applied  upon  or  of 
.Shea  to  the  defendant,  . 
debt  had  no  sort  of  com: 
August  26th,  Shea,  beir.,^ 
benefit  of  his  creditors,     H< 
for   tlie   proceeds   of   their 
tor  the  same  unless  by  app 

.';   Ruan  v.  Gi 

'  '-r-linr  law  tbui  v. ..' 

■    and  onc  drals  w  ;■ 
■T,T-    he  jiiay  ■-■ 
answer  ; 


Si  Co.'x 


456 


UNDISCLOSED    PRI' 


The  latter  placed  the  cotton  in  the  h: 
shipped  to  Liverpool,  and  received  :■'" 
ment  was  made  accordingly,  and  tb. 
sum  sufficient  to  reimburse  t!i 
lids  of  five  hundred  dollar^  ii 
reiriaining  in  their  hands,  this  n  ' 
&  Pollard  were  cqmnussion  m 
cotton   for  sale  or  shipment, 
that  they  were  ignorant  of  *^^'' 
tion ;  that  they  received  it 
the  knowledge  that  it  " 
were  indebted  to  tlien. 
abouts.    In  c^ 
ery  hv  the  p. 
sel,  i  ice  ortcr' 


efendants  to  be 

^  he  ship- 

l  yield- 

ce,  and 

s=,  still 


d  to  show 

:,^  X   ..Lon  in  ques- 

&  Pollard  without 

'1  that  the  latter 

•hilars,  or  there- 

"  led  a  recov- 

..iitiflf's  coun- 

.  on  the  ground 


no  differ' 
commission 
But  it  is  net 


tt  a  cla 
..   jUst  bell 
.  was  the  re., 
■^:i'\  this  seems  t' 
the  United  State 
terms  of  the  statutes 
9.)     This  being  the  1. 
mitted  the  defendants 


!   acknowledged 

,  iiaiiK^:,  the  purchaser, 

•eing  a  party  to  the  con- 

vd  to  regard  the  debt  as 

:;::ht  by  the  principal,  to 

'        c-f.     (Paley's  Agency, 

.     .  ciitise   on   the  Law  of 

nqwn  or  supposed  principal, 

•'"d  to  the  same  rights  of 

mly  principal,   (p.  432.) 

i\    good,  whether  a  suit  be 

"■  of  the  factor  or  agent,  for 

417-8-9,  and  cases 

il    (10  Wend.  492), 

id  the  court,  after  citing' 

'  is  held,  that  it  makes 

under  a  del  credere 

"  ne  in  both  cases. 

r  length.      The 

rial  whether 

er  sue,  the 

has  against 

0  purchaser 

e  purchased 

:  .    L,.ibe,  that  the 

'  v's  Agency,  417-8.) 

t^t  m  England  and 

1  led  or   restricted 

ban,  13  Johns.  Rep. 

■;rt  should  have  per- 

iipj)ed  the  cotton  on 


LIABILITY   THIRD    PARTY    TO    PRIXCIPAL.  45/ 

count  of  Messrs.  Labuzan  &  Pollard,  under  such  circumstances  as 
might  well  induce  them  to  believe  that  it  was  their  property.  The 
sufficiency  of  this  evidence  was  a  question  of  fact  to  be  considered 
by  the  jury,  under  the  direction  of  the  court;  but  being  admissible, 
its  rejection  is  an  error,  for  which  the  judgment  is  reversed,  and  the 
cause  remanded.^ 


BAXTER  AND  Others  v.  SHERMAN. 

1898.     Supreme  Court  of  Minnesota.     73  Minn.  434. 

Mitchell,  J. — One  Shea  was,  to  the  knowledge  of  the  defend- 
ant, a  commission  merchant  or  factor,  who  sold,  on  account  of  the 
consignors,  fruit  and  produce  consigned  to  him  by  others ;  but,  at  the 
same  time,  he  dealt  on  his  own  account  in  the  same  kind  of  prop- 
erty. The  defendant  was  a  dealer  on  his  own  account  in  the  same 
city,  in  the  same  kind  of  property.  The  plaintiffs  were  engaged 
in  the  fruit  and  produce  business  at  Nauvoo,  111.,  and  had  for  years 
been  in  the  habit  of  shipping  such  property  to  Shea  as  their  agent, 
to  be  by  him  sold  on  their  account,  and  to  remit  to  them  the  pro- 
ceeds, less  his  commissions.  For  this  purpose,  in  August,  1896,  they 
shipped  to  him  a  consignment  of  fruit.  Shea  sold  the  fruit  to  the 
defendant  on  August  21  Ft.  There  was  no  express  agreement  be- 
tween Shea  and  the  defendant  for  any  credit,  but  the  purchase 
price  was  not  paid  at  the  time  of  the  delivery  of  the  fruit,  the  cus- 
tom of  those  in  the  trade  in  Minneapolis  being  to  settle  accounts 
between  themselves  once  a  week.  On  August  22,  Shea  and  de- 
fendant had  a  settlement,  in  which  the  price  of  the  plaintiff's  fruit 
was  applied  upon  or  offset  against  an  individual  debt  due  from 
Shea  to  the  defendant,  contracted  on  August  i8th  or  19th.  This 
debt  had  no  sort  of  connection  with  the  sale  of  plaintiff's  fruit.  On 
August  26th,  Shea,  being  insolvent,  made  an  assignment  for  the 
benefit  of  his  creditors.  He  has  never  accounted  to  the  plaintiffs 
for  the  proceeds  of  their  fruit,  and  defendant  has  never  paid 
for  the  same  unless  by  applying  the  price,  as  above  stated,  upon 

^Accord:    Ruan  v.  Gunn,  jj  Ga.  53. 

"It  is  familiar  law  that  when  a  principal  entrusts  the  possession  of  his  goods 
with  an  agent,  and  one  deals  with  the  agent  as  the  principal,  without  knowl- 
edge of  the  agency,  he  may  set  off  any  claim  he  has  against  the  agent  before 
he  is  undeceived  in  answer  to  the  demand  of  the  principal.  The  doctrine  rests 
upon  the  ground  that  the  principal  who  has  permitted  an  agent  to  deal  with 
his  goods  as  his  own  must  not  only  take  the  contract  as  the  agent  made  it, 
but  is  virtually  estopped  from  alleging  that  the  agent  is  not  the  real  plaintiff 
in  his  (the  principal's)  suit.  The  set-off  must  be  pleaded  just  as  if  the  suit 
were  in  the  name  of  the  apparent  owner  at  the  time  of  the  sale,  that  is,  the 
agent."    Cockrill,  C.  J.,  in  Quinn  v.  Sewell,  50  Ark.  380,  383. 

See  Sellers  &  Co.  v.   ^lalone-Pilcher  Co.,   151  Ala.  426. 


458 


UNDISCLOSED    PRINCIPAL. 


the  debt  which  Shea  owed  him.  Plaintiffs  brought  this  action  to 
recover  the  price  of  the  fruit.  As  factors  or  commission  merchants 
may  seU  in  their  own  name  the  goods  of  their  principals,  we  shall 
assume,  although  there  is  no  express  finding  to  that  effect  that  Shea 
sold  this  fruit  without  disclosing  the  name  of  his  principal  or  stating 
whether  this  property  belonged  to  himself  or  to  another.  The  evi- 
dence, as  well  as  the  finding,  is  to  the  effect  that  defendant 
knew  that,  while  Shea  sold  fruit  and  produce  on  his  own  account, 
he  was  also  engaged  in  the  business  of  selling  it  as  factor  or  agent 
for  others  who  consigned  it  to  him  for  sale  on  their  account.  There- 
fore, under  the  circumstances,  a  sale  by  Shea  in  his  own  name  to  the 
defendant  was  not  the  equivalent  of  a  statement  that  he  was  selling 
on  his  own  account.  On  the  contrary,  it  amounted  only  to  an  as- 
surance that  the  fruit  was  either  his  own  property  or  the  property 
of  some  principal  who  had  employed  him  to  sell.  With  this  knowl- 
edge of  the  equivocal  relation  of  Shea  to  the  property,  and  with 
actual  knowledge  that  it  had  been  shipped  to  Shea  by  somebody 
(for  defendant  himself  took  the  fruit  out  of  the  car  in  which  it  had 
been  transported  from  Nauvoo,  and  paid  the  railroad  freight),  the 
defendant,  so  far  as  appears,  made  no  inquiry  whatever  of  Shea 
or  anyone  else  as  to  whose  property  it  was,  or  whether  Shea  was 
acting  for  himself  or  for  a  principal. 

The  court  found  that  defendant  had  no  knowledge  or  informa- 
tion of  any  claims  of  plaintiffs  in  or  to  the  property  until  after  the 
settlement  with  Shea.  This  may  be,  and  probably  is,  technically  and 
literally  supported  by  the  evidence,  but,  as  will  be  seen  hereafter, 
is  wholly  insufficient  to  entitle  the  defendant  to  offset  his  debt 
against  Shea  against  plaintiff's'  demand  for  the  price  of  their  prop- 
erty. It  is  not  important  that  the  purchaser  from  a  factor  did  not 
know  who  the  principal  was  if  he  knows,  or  is  chargeable  with 
notice,  that  the  property  belongs  to  a  principal,  and  not  to  the  factor. 
It  is  well  settled  by  an  almost  unbroken  line  of  authorities,  from 
George  v.  Claggett,  7  Term  R.  359,  down,  that  if  the  owner  of 
goods  intrusts  them  to  an  agent  with  authority  to  sell  in  his  own 
name,  without  disclosing  the  name  of  his  principal,  and  the  agent 
sells  in  his  own  name  to  one  who  knows  nothing  of  any  principal, 
but  honestly  believes  that  the  agent  is  selling  on  his  own  account,  he 
may  set  off  any  demand  he  may  have  on  the  agent  against  the  de- 
mand for  the  goods  made  by  the  principal.  This  set-off  need  not 
exist  at  the  time  of  the  sale.  It  is  sufficient  if  it  arises  before  notice 
of  the  real  ownership  of  the  goods.  As  applied  to  factors,  this  rule 
might  seem  at  first  to  be  inconsistent  with  the  equally  well-settled 
doctrine,  so  much  relied  on  by  the  plaintiff,  that  a  factor  or  commis- 
sion merchant  has  no  power  to  pledge  his  principal's  goods  for  his 
own  benefit ;  that  such  an  act  is  tortious  and  void  as  against  the 
principal ;  and  that,  too,  without  regard  to  the  pledgee's  ignorance  of 
the  fact  that  the  factor  was  not  the  real  owner  of  the  property. 


459 


See  Wric^.l       :    '>   u  on,  ig  C- 
settled;  ;.n.i  v,e  apprehend  ti- 
the tN^o  :■  ihat  a  sale  of  the 
f    ■  within  the  imp'J    ' 

not.    The  rule 
ine  of  (^ 
iar  prin: 
r  by  the  fraud  oi  a  ihno,  iiic  lofcs  sh 
--    -T  negligence  enabled  the  third  persv/' 
Ijut  this  rule  should  not  be  extended  beyond 
pie  upon  which  it  is  founded.    ^'      ■    ,.,> v.- 
.1  shield  so  as  to  make  ever\ 
;  e  right  of  a  thir ' 
;)le  advantage  oi 
^  own  name  for  aii  i. 
.uyer  for  the  price 
iie  agent  unless  in  m 
juct  of  the  principal  t^..  . 

.'.as  selling  on  his  own  account.    The  rule  of  G- 
'loes  not  obtain  where  the  purchaser  knows  that  tne 


'  equally  well 

■'•«'  between 

^^  of  the 

•■^ile  a 

,  oon 


^  he  was  induced  by 
in  fact  believ'-  i^i'^'  ^  ,._  ^^^    , 
Clagett, 
ii-cnt  is  not 


fhe  owner  of  the  goods  or  when  circumstances  are  brought  to  his 
'  -e  which  ought  to  have  put  him  upon  inquiry,  and  by  in- 
g  which  he  would  have  ascertained  that  the  agent  was  not 
.ii<;  owner.    Whore  the  character  of  the  selHng  is  equivocal,  as  in 


'i-  case,  and,  as  was  known  to 
of  selling  sometimes  on  his  - 
':.  it  was  incumbent  on  defeni 
set-off,  to  inquire  in  what  c; 
oular  tran.saction,  and  if 
d  out,  as  it  did,  that  he 
I  not  to  be  allowed  the  h 
ctendant  had  sufficient  '■ 
uite  as  likely  tliat  Shea  -■ 
"  himself.    This  was  oi  ■.- 
J  to  Shea's  authority  to 
red  to  buy  with 
Jf  of  a  set-off. 
'Uld  have  heen  ' 

for   another. 
^er  he  was  acting  for  hmiseit  v 
declined  to  make  the  pv  '■ 
qf  entered  into  the  transa 
had  no  honest  or  re: 
.   owm-rshin  of  the  p 


i'^mdant,  Shea 
mt,  arKi  soir. 
:  desired  '^ ' 
Shea  w 


the 

an 


..Hi- 

lea, 

an 

liin 

.ndant  could 

i>'"  -lid,  and 

i;t  could 

'     -  as 


iicc  OI  cncir  iruit  ov 


Without  attemptuig 


which  Shea  owed  hiiii. 


Dn: 


soi'i  tius  fruit  ^ 
whi:iiier  this  p; 
'lOi, CO.    as    wel'. 
knew  that, 
he  was  3U< 
for  otl: 
fore,  ir 
defend . 
on  his 
suranc 


of  th- 


A'- 


.lat 


i>n  to 

hants 

we  shall 

tb.at  Shea 

ov  stating 

The  evi- 

defendant 


noiKc,  lii  = . 
It  is  well  .- 
Georgfe  v. 
goods  iiiLti 
name,  wilJioiit 


-lis  ■: 


1   n_i5  r-wt 


m. 


nj : 
do 


sion  merchant  has  no 
owTi  benefit ;  that  ?'!'" 
principal ;  and  that, 
'       '    t  that  the  faci 


account.    There- 

!'s  own  name  to  the 

■m  that  he  was  selling 

"mted  only  to  an  as- 

■•ly  or  the  property 

-eii.     With  this  knowl- 

le  property,  and  witii 

by  somebody 

A  which  it  had 

;  freight),  the 

.„tever  of  Shea 

whether  Shea  was 

\  ledge  or  inform  i 
:  or  to  "^  after  the 

be,  and  .acally  and 

nee,  but,  as  vviil  be  seen  hereafter, 
ti.r.'   'icfendant  to  offset  his   debt 
or  the  price  of  their  pro' 
c-  t-,.fii  a  factor  did  noi 
chargeable  with 
'.!id  not  to  the  factor. 
e  of  authorities,  from 
that  if  the  owner  of 
'  'tv  to  sell  in  his  own 
i^al,  and  the  agent 
■f  :inv  principal, 
.count,  he 
ist  the  de- 
need  not 
^re  notice 
.  this  nde 


ucipal  s  goods  for  his 
!  vfn'd  as  against  the 


s  ignorance 
the  propert 


LIABILITY   THIRD   PARTY   TO   PRINCIPAL,  459 

See  Wright  v.  Solomon,  19  Cal.  64.  But  both  rules  are  equally  well 
settled;  and  we  apprehend  that  the  distinguishing  feature  between 
the  two  is  that  a  sale  of  the  principal's  goods  in  the  name  of  the 
factor  is  within  the  implied  actual  authority  of  the  latter,  while  a 
pledge  is  not.  The  rule  referred  to  in  the  case  of  sale  rests  upon 
the  doctrine  of  equitable  estoppel,  and  is  merely  an  application  of 
the  familiar  principle  that,  where  one  of  two  innocent  persons  must 
suffer  by  the  fraud  of  a  third,  the  loss  should  fall  upon  him  whose 
act  or  negligence  enabled  the  third  person  to  commit  the  fraud. 
But  this  rule  should  not  be  extended  beyond  the  reason  or  princi- 
ple upon  which  it  is  founded.  It  was  never  intended  to  be  used  as 
a  shield  so  as  to  make  every  right  of  the  real  owner  subordinate 
to  the  right  of  a  third  party,  dealing  with  the  agent,  to  gain  every 
possible  advantage  of  the  transaction.  Hence,  where  an  agent  sells 
in  his  own  name  for  an  undisclosed  principal,  and  the  principal  sues 
the  buyer  for  the  price,  the  buyer  cannot  set  off  a  debt  due  from 
the  agent  unless  in  making  the  purchase  he  was  induced  by  the  con- 
duct of  the  principal  to  believe,  and  did  in  fact  believe,  that  the  agent 
was  selling  on  his  own  account.  The  rule  of  George  v.  Clagett, 
does  not  obtain  where  the  purchaser  knows  that  the  agent  is  not 
the  owner  of  the  goods  or  when  circumstances  are  brought  to  his 
knowledge  which  ought  to  have  put  him  upon  inquiry,  and  by  in- 
vestigating which  he  would  have  ascertained  that  the  agent  was  not 
the  owner.  Where  the  character  of  the  selling  is  equivocal,  as  in 
this  case,  and,  as  was  known  to  the  defendant,  Shea  was  in  the 
habit  of  selling  sometimes  on  his  own  account,  and  sometimes  as  an 
agent,  it  was  incumbent  on  defendant,  if  he  desired  to  avail  himself 
of  a  set-off,  to  inquire  in  what  character  Shea  was  acting  in  that 
particular  transaction,  and  if  he  chose  to  make  no  inquiry,  and  it 
turned  out,  as  it  did,  that  he  bought  of  an  undisclosed  principal,  he 
ought  not  to  be  allowed  the  benefit  of  any  set-off. 

Defendant  had  sufficient  information  to  advise  him  that  it  was 
quite  as  likely  that  Shea  was  acting  as  factor  as  that  he  was  acting 
for  himself.  This  was  of  itself  enough  to  put  him  upon  inquiry, 
not  as  to  Shea's  authority  to  sell,  but  as  to  his  own  right  of  set-off 
if  he  desired  to  buy  with  a  view  of  covering  his  own  debt  or  avail- 
ing himself  of  a  set-off.  Presumably,  if  he  had  inquired  of  Shea, 
he  would  have  been  informed  that  Shea  was  acting  merely  as  an 
agent  for  another.  Should  Shea  have  refused  to  inform  him 
whether  he  was  acting  for  himself  or  for  a  principal,  defendant  could 
have  declined  to  make  the  purchase.  Knowing  what  he  did,  and 
having  entered  into  the  transaction  without  inquiry,  defendant  could 
have  had  no  honest  or  reasonable  belief  one  way  or  the  other  as 
to  the  ownership  of  the  property ;  and  under  these  circumstances  he 
can  have  no  right,  as  against  the  demand  of  tlie  plaintiffs,  to  in- 
sist on  a  set-off  or  upon  the  attempted  application  of  the  purchase 
price  of  their  fruit  on  his  claim  against  Shea,     Without  attempting 


460  UNDISCLOSED    PRINCIPAL. 

to  cite  or  review  the  authorities  on  this  subject,  we  merely  refer 
to  the  notes  to  George  v.  Clagett,  2  Smith,  Lead  Cas.  1359,  where 
most  of  the  authorities,  both  American  and  English,  are  referred 
to;  arid  to  Cooke  v.  Eshelby,  L.  R.  12  App.  Cas.  271,  where  the  sub- 
ject is  fully  discussed  and  all  the  English  cases  reviewed.  Our  con- 
clusion is  that  the  findings  of  fact  were  not  sufificient  to  justify  the 
conclusions  of  law,  and  that  the  evidence  would  not  have  justified 
any  findings  which  would  have  entitled  the  defendant  to  prevail. 
2.  The  defendant  was  permitted,  under  the  objection  and  excep- 
tion of  the  plaintiffs,  to  introduce  evidence  of  a  local  custom  in 
Minneapolis  among  those  engaged  in  the  fruit  and  produce  busi- 
ness, such  as  Shea  and  defendant  were  engaged  in,  of  running 
weekly  accounts  on  cash  sales,  instead  of  paying  spot  cash  on  each 
transaction,  and  then  making  weekly  payments  and  settlements,  in 
which  they  allowed  and  offset  against  each  other  all  bills  accruing 
during  the  past  week,  and,  in  short,  having  a  sort  of  weekly  clear- 
ance between  themselves,  in  which  they  balanced  and  offset  all  out- 
standing bills  between  themselves,  without  regard  to  whether  such 
bills  were  due  to  or  from  them  as  factors  or  principals.  This  evi- 
dence was  clearly  immaterial  and  incompetent  for  any  purpose. 
This  so-called  "custom"  was  an  arrangement  among  the  local  deal- 
ers solely  for  their  own  convenience,  which  they  acted  on  entirely 
in  reliance  upon  the  financial  responsibility  of  each  other.  If,  in 
the  absence  of  any  such  custom,  defendant  would  have  no  right  to 
apply  the  price  of  plaintiff's  fruit  on  the  individual  debt  of  Shea, 
the  custom  could  give  him  no  such  right ;  for  the  effect  of  such 
a  custom  would  be  to  permit  an  agent  to  appropriate  his  principal's 
property  to  the  payment  of  his  own  debt,  which  would  be  contrary 
to  well-established  principles  of  law  as  well  as  good  morals. 
Therefore  such  custom  would  be  void.  Moreover,  no  evidence 
was  introduced  or  offered  that  plaintiffs  had  any  knowledge  of 
the  alleged  custom ;  and  nothing  is  better  settled  than  that  a  local 
custom,  even  if  valid,  is  operative  only  in  respect  to  those  who  are 
shown  to  have  knowledge  of  it;  and  there  can  be  no  presumption 
that  a  stranger  living  in  Illinois  had  any  knowledge  of  a  local  custom 
in  Minneapolis.  It  is  doubtless  true  that,  where  the  owner  of  prop- 
erty consigns  it  for  sale  to  a  factor,  it  is  within  the  implied  or  ap- 
parent authority  of  the  factor  to  conform  to  any  general  and  uni- 
form custom  of  the  place  to  which  the  property  is  consigned  as  to 
the  terms  or  conditions  of  sale,  whether  the  consignor  knew  of  the 
custom  or  not ;  but  the  custom  here  sought  to  be  proved  does  not 
come  within  any  such  principle.  Order  reversed,  and  a  new  trial 
granted.^ 

^Accord:    Miller  v.  Lea,  35  Md.  396;  Frazier  v.  Poindexter,  78  Ark.  241. 
"There  can  be  no  doubt  of  the  correctness  of  the  proposition,  that  where 
one  deals  with  an  agent,  knowing  of  the  agency,  he  cannot  set  off  a  claim  due 


LUMLF 

1861.     Supreme  G 

11'  WAS  shown  on  the 
ery  of  the  ale  by  Broa*^: 
thereto  Broadhiirst  &  C 
under  that  style,  was  a 
i  stock  of  ji;' 
I  that  the  de 
hini  irum  time  t 
of   May,    1859, 
casks  of  ale;  that  Bro.- 
to  defendant  an  order  fo 
the  2d,  1859,  Mr.  Griffiir 

'      "ds     of     Bass     ale.     ex  •      ^tcml-v:     i-,lij,;.' 

■dhurst,  on  the  thir  ;  presented  his  bii 

lO  the  defendant  and  was  pa^u ;  lliat  after  such  pay 
r  Broadhurst  had  absconded,  the  plaintiff  called  at  d( 
e  of  business  and  told  his  clerk  to  tell  defendant  not  10  pay 

:adhurst,  which  was  the  first  time  .the  defendant  knew  r.Vxi''.trk 

claimed  the  ale..  Defendant  had  judgment.    Plaintiff  appe. 
Cope,  J.,  delivered  the  opinion  ■■*    '"^     ..»'-•       p-,,  u.  ;  . 
currinar. 

'  :  action  '  '. 

,,t  of  Br 
■ars  that  this  ale  bt 
;i  his  order;  but  in  ?f  1 
rheir  own  account.     Tht 
r  person  in  connection 
ned  of  the  interest  of  th' 
ari'j  paid  for  it.    The  plrJ  "" 
by  him  for  its  delivery 
.  rights;  but 
rst  &  Co.,  a' 
contract.    The  r 
d  by  a  personal  a 
other  words,  that 
the  ale  nec^-   ' 
The  def ei 

'  h,  or  incurnn.:;"  any 
>n  that  the  pa^niert 
whate\ 
■  l^rht  t- 

Ut  due  li. 


4fw 


J.NKJS'.  L^J^KJ.> 


to  cite  or  review  the 
to  the  notes  to  GeorP' 
most  of  the  autho; 
-     •■  Vrl  to  Cooke  V.  ;- 
fully  discussed 
c!.i::on  is  that  the  f. 
conclusions  of  Ihva- 
any .  findin  ^ 
2.     The  d. 
tion  of  tl 
Minne--;^^' 
ness,   - 
wc'  ■ 
v- 

whiCii  i,'.!^\   aj. 
durinij  the  pa- 
ance  \:f{\\ ' 


CX     y.Lir-i.y.jil,. 

property  t. 


vva^    11 
the  ah'  ^^ 
custom,  c 
shown  to 
that  a  str;; 
;n  Minnea}ioi: 


authorities  on  il^ 

•  \'    Clagett,  2  Sn 

:h  America! 

anrl  all  the  E! 
K^f  fact  ' 

!  the  e\ 


troduce  evi 
^.ngaged  in 
'•fendant  vv. 

/■es,  instc  .  ' 
".g;  week' 


I  hem  as 


rms  or  cono^ 
11  or  not;  bu.  - 
within  any  sucl 
i.;ied? 


L,  we  merely  refer 

r.m.   iT,$g,  where 

■e  referred 

re  the  sub- 

Our  con- 

iustify  the 

,  ve  justified 

am  to  prevail. 

on  and  excep- 

a  iocal  custom  in 

and  produce  busi- 

C-d  in,  of  running 

•t  cash  on  each 

settlements,  in 

'  bills  accruing 

;"  weekly  clear- 

i  offset  all  out- 

■■  whether  such 

;ials.     This  evi- 

'■  jur   any  purpose. 

:ong  the  local  deal- 

liicy  acted  on  entirely 

of  each  other.     If,  in 

'vould  have  no  right  to 

■  \:[  uidividual  debt  of  Shea, 

such  right ;  for  the  effect  of  such 

I  agent  to  appropriate  his  principal's 

own  debt,  which  would  be  contrary 

of    law    as    well    as    good    morals. 

;    be   void.     Moreover,    no   evidence 

'   any  knowledge  of 

-d  than  that  a  local 

only  in  respect  to  those  who  are 

ad  there  can  be  no  presumption 

any  knowledge  of  a  local  custom 

■'    '     -  :,  -    tjie  owner  of  prop- 

:  the  implied  or  ap- 

'-al  and  uni- 

Mgned  as  to 

new  of  the 

^       ed  does  not 

ed,  and  a  new  trial 


^  Accord.    .\ii,..t  N .  X...    .o 
"There  can  be  no  douhl  of 


ter,  78  Ark.  241. 
.;itioti,  that  where 
:et  off  a  claim  due 


LIABILITY   THIRD    PARTY    TO    PRINCIPAL.  461 

LUMLEY  V.  CORBETT. 
1861.     Supreme  Court  of  California.     i8  Cal.  494. 

It  was  shown  on  the  trial  that  at  the  time  of  the  sale  and  deliv- 
ery of  the  ale  by  Broadhurst  &  Co.,  and  for  some  time  anterior 
thereto  Broadhurst  &  Co.,  or  rather  Broadhurst,  doing-  business 
under  that  style,  was  a  jobber  in  Front  street,  in  San  Francisco, 
having  a  stock  of  goods  in  his  store  among  which  were  casks  of 
ale ;  and  that  the  defendant  had  been  in  the  habit  of  buying  from 
him  from  time  to  time,  and  paying  him  therefor ;  that  on  the  second 
of  May,  1859,  Broadhurst  bargained  and  sold  to  defendant  five 
casks  of  ale;  that  Broadhurst  procured  from  plaintiff  and  g-ave 
to  defendant  an  order  for  the  delivery  of  the  ale,  as  follows :  "May 
the  2d,  1859,  Mr.  Griffing-,  please  deliver  to  Mr.  Corbett  five  hogs- 
heads of  Bass  ale,  ex  Rapid.  (Signed)  George  Lumley ;  ''that 
Broadhurst,  on  the  third  of  May,  1859,  presented  his  bill  for  the 
ale  to  the  defendant  and  was  paid ;  that  after  such  payment  and 
after  Broadhurst  had  absconded,  the  plaintiff  called  at  defendant's 
place  of  business  and  told  his  clerk  to  tell  defendant  not  to  pay 
Broadhurst,  which  was  the  first  time  the  defendant  knew  plaintiff 
claimed  the  ale..  Defendant  had  judgment.     Plaintiff  appeals. 

Cope,  J.,  delivered  the  opinion  of  the  court. — Baldwin,  J.,  con- 
curring. 

This  is  an  action  to  recover  the  value  of  certain  ale  purchased  by 
the  defendant  of  Broadhurst  &  Co.,  merchants  in  San  Francisco.  It 
appears  that  this  ale  belonged  to  the  plaintiff,  and  was  delivered 
upon  his  order ;  but  in  selling  it,  Broadhurst  &  Co.  professed  to  act 
on  their  own  account.  The  defendant  had  no  knowledge  of  any 
other  person  in  connection  with  the  transaction,  and  was  not  in- 
formed of  the  interest  of  the  plaintiff  until  he  had  received  the  ale 
and  paid  for  it.  The  plaintiff  seems  to  think  that  the  order  signed 
by  him  for  its  delivery  was  sufficient  to  put  the  defendant  upon 
notice  of  his  rights ;  but  the  answer  is  that  the  order  was  procured 
by  Broadhurst  &  Co.,  and  delivered  to  the  defendant  in  fulfillment 
of  their  contract.  The  inference  could  only  have  been,  that  it  was 
procured  by  a  personal  arrangement  between  them  and  the  plaintiff ; 
or,  in  other  words,  that  they  had  purchased  or  otherwise  obtained 
of  him  the  ale  necessary  to  meet  their  engagement  with  the  de- 
fendant. The  defendant  could  not  have  supposed  that  he  was  con- 
tracting with,  or  incurring  any  liability  to  the  plaintiff,  and  we  are 
of  the  opinion  that  the  payment  to  Broadhurst  &  Co.  was  sufficient 
to  discharge  whatever  liability  he  incurred.  We  can  regard  the  case 
in  no  other  light  than  that  of  agents  of  an  undisclosed  principal 
contracting  in  their  own  names ;  and  it  is  well  settled  that  in  such 

him  from  the  agent  against  the  debt  due  the  principal."   Baker,  J.,  in  Reulchler 
V.  Hucke,  3  111.  App.  144,  149. 


462  UNDISCLOSED   PRINCIPAL. 

cases,  agents  employed  to  sell  may  also  receive  payment.  If,  says 
Story,  the  payment  is  received  by  the  agent,  and  the  debtor  has  no 
notice  of  any  claim  by  the  principal,  the  latter  will  be  bound  thereby. 
(Story  on  Agency,  §  430.)  "Until  the  principal  appears,"  said  Lord 
Ellenborough,  in  Blackburn  v.  Scholes,  (2  Camp.  343)  "the  agent 
is  to  be  regarded  as  the  proprietor."  There  is  no  doubt  that  the 
law  upon  this  subject  is  adverse  to  the  right  of  the  plaintiff  to  re- 
cover. But  even  if  Broadhurst  &  Co.  had  acted  expressly  in  the 
capacity  of  agents,  we  are  satisfied  that  the  payment  to  them  would 
have  discharged  the  debt.  The  circumstances  would  have  been 
sufficient  to  establish  their  authority  to  receive  it ;  and  it  is  only  in 
the  absence  of  circumstances  justifying  it  that  such  authority  could 
not  be  inferred.  The  payment  was  made  in  the  regular  course  of 
business,  and  the  subsequent  notification  to  the  defendant  to  with- 
hold it  seems  to  recognize  their  authority  to  receive  it. 
Judgment  affirmed.^ 


Section  2. — Liability  of  Principal  to  Third  Party. 

BRIGGS  ET  AL.  V.  PARTRIDGE  et  al. 
1876.     Court  of  Appeals  of  New  York.     64  N.  Y.  357. 

Appeal  from  judgment  of  the  general  tenn  of  the  superior  court 
of  the  city  of  New  York  affirming  a  judgment  in  favor  of  defend- 
ants, entered  upon  an  order  dismissing  plaintiffs'  complaint  on  trial. 
(Reported  below,  7  J.  &  S.  339.) 

This  action  was  brought  to  recover  the  purchase-money  unpaid 
under  a  contract  for  the  purchase  and  sale  of  lands. 

The  complaint  alleged  that  the  plaintiffs  entered  into  an  agree- 
ment in  writing  with  one  L.  P.  Hurlburd.  who  was  acting  for  and 
under  the  authority  of  the  defendants,  "whereby  these  plaintiffs 
sold  and  the  defendants  through  said  Hurlburd  bought"  a  certain 
described  piece  of  land,  "for  the  sum  of  $7,200,  which  said  sum 
the  defendants,  through  their  agent,  the  said  Hurlburd,  agreed  to 
pay,"  as  specified.  That  it  was  further  agreed  that  the  plaintiffs 
should  deliver  the  deed,  and  that  the  defendants  should  accept  the 
same  and  pay  the  balance  of  the  purchase-money  unpaid  on  the  ist 
day  of  February,  1874 ;  that  the  defendants,  through  said  Hurlburd, 
paid  on  the  delivery  of  the  agreement  $100;  that  on  the  said  ist  day 
of  February,  1874,  the  plaintiffs  were  "ready  to  carry  out  on  their 

^Accord:    Saladin  v.  Mitchell,  45  111.  79;  Traub  v.  Milliken,  57  Me.  63. 

Regarding  the  right  of  one,  who  has  contracted  with  the  agent  of  an  undis- 
closed principal,  to  set  up  a  discharge  under  a  state  insolvency  law  as  a  bar 
to  an  action  brought  by  such  principal  see  Ilsley  v.  Merriam,  7  Cush.  (Mass.) 
242. 


463 

ring  to  said 

'  ?nd  siiffi- 

reas  the 


Alt   lij    luiliii   i)U 

;  Xhp  cortn^r'' 


"  since  1 

.1  the  de. 

-um  agreed.    TL 
fFs'  counsel,  in  c 
it  on  which  the  • 
by  the  plaint!  r-' 
■e;  that  the  \vr; 
was  a  principal  pav. 
'  individually;  that  ■' 
AT  in  the  instriT  antitts  ^ 

Hurlburd  was  a....,   ,  -'-'d   uu<.-..    ...--    .... 

iias  M.  Partridge,  wr  to  be  paid  the  1 

'   under  the  :■!    imiiburd  was  the  a;: 

■e  of  said  I'  nsaction,  and  the  authors 

artridge  to  llui-ruurd  was  oral. 

1  this  opening  and  on  the  complaint  the  defendants'  counsel 

:d  to  dismiss  the  complaint  on  the  grounds:     First.     That  the 

stated  in,  the  opening  and  by  the  complaint  did  not  constitute 

use  of  action.    Second.     That  it  was  not  competent  to  vary  the 

s  of  the  written  contract  by  '   -•■■•f  that  thr  — '-   ••'-': 

•ted  the  same  as  principal  w.  'pal,  bui 

ie  plaintiffs'   counsel   tur^' 
constituted  by  parol  rt;j'. 
in  behalf  of  the  defe; 
was  made  the  plain' 
principal ;  that  the  p: 
.^.ot  at  tiiat  time  kno\. 
e  motion  was  therei 


J.— Th. 
.ic  sale  and  purclia.-e  oi 
!Jd  it  purport  to  have  Ik 
•  does  not  appear  in 
'^'^ement  to  indicate  i.. 
sted  in  the  purchasi 
'  "tween.  the  plaint' 
and  convey  the  . 
rchase  and  to  pay 
It  took  no  part  in 
when  he  m^: 

..    . . ,  s  ac^i'i""  '■  ~ 

rnent  was  un''f    v 


nent 


UNDISCLOSED   PRIK 


cases,  agents  employed  to  sell  ma\ 

•-.     If,  says 

■'    ^'  the  payment  is  received  by  tlix. 

'tor  has  no 

of  any  claim  by  the 

principal,  the 

id  thereby. 

Agency,  §  J  -  . 

'.    •■    T      .    .,    -1        ,   , 

said  Lord 

I                   jb.  in  Klaci 

■'the  agent 

is  to  L>e  1 

hat"  the 

law  upon  i 

. 

to  re- 

cover.     But  even 

I  is.  Co 

•  pressly  in  the 

capacity  of  agents 

ned  that 

to  them  would 

have  discharged  ^ 

he  circi; 

aid  have  been 

suffici--   '   '       ■'  ' 

:  ..'aioritx-  *- 

id  it  is  only  in 

the  a1: 

s  iustifx ' 

luthority  could 

not  be  1.. 

'    ■  course  of 

bn,^!*iess,  .r 

Mt  to  with- 

seenib                  tu« 
.  rn  rnt.  <    ■ 

J  Llicir  di. 

■    u. 

<RK.      64 


:67- 


t-tn  of  the  superior  court 
mt  in  favor  of  defend- 


er t!ic 


ill 
merit  v..   . 
under  the 
sold  and  tiic  ■ 
lie  scribed  piec 


-IV  the  ■ 


V,  1874, 


'Un  V.  Mil 


money  unpaid 

J  ed  into  an  agree- 
vas  acting  for  and 
:\    these  plaintiffs 
\;urd  bought"  a  certain 
-7,200,  which  said  sum 
'Ttirlburd,  agreed  to 
tb^t  the  plaintiffs 
accept  the 
on  tha  I  Ft 
aid  Hurlbui 
-..  ^he  said  ist  d-\ 
carry  out  on  tht 

iken,  57  Me.  63. 

''■■■■   "Tent  of  an  'n  .K;. 
cy  law  a 
-  Cush.  I 


LIABILITY    PRINCIPAL    TO   THIRD    PARTY.  463 

part  the  agreement  aforesaid  by  executing  and  delivering  to  said 
Hurlburd,  for  and  on  account  of  said  defendants,  a  good  and  suffi- 
cient deed  of  the  premises  hereinbefore  described."'  Whereas  the 
defendants  wholly  failed  on  their  part  to  fulfill  said  agreement  or  to 
take  title  to  said  property,  but  on  the  contrary  refused,  and  they 
have  ever  since  refused  so  to  do,  and  the  plaintiffs  demanded  judg- 
ment that  the  defendants  perform  said  agreement  and  pay  to  plain- 
tiffs the  sum  agreed.    The  answer  was  a  general  denial. 

Plaintiffs'  counsel,  in  opening  the  case  on  the  trial,  said  that  the 
agreement  on  which  the  plaintiffs  relied  was  in  writing ;  that  it  was 
made  by  the  plaintiffs  as  vendors,  and  Llewellyn  P.  Plurlburd  as 
vendee ;  that  the  written  instrument  did  not  show  but  that  Hurl- 
burd was  a  principal  party ;  that  it  was  signed  and  sealed  by  Hurl- 
burd individually ;  that  the  name  of  defendant  Partridge  did  not 
appear  in  the  instrument,  but  that  plaintiffs  would  prove  that  the 
said  Hurlburd  was  acting  solely  for  and  under  the  direction  of 
Thomas  M.  Partridge,  who  paid  or  caused  to  be  paid  the  first  pay- 
ment under  the  contract :  that  said  Hurlburd  was  the  agent  and 
trustee  of  said  Partridge  in  the  transaction,  and  the  authority  given 
by  Partridge  to  Hurlburd  was  oral. 

On  this  opening  and  on  the  complaint  the  defendants'  counsel 
moved  to  dismiss  the  complaint  on  the  grounds :  First.  That  the 
facts  stated  in  the  opening  and  by  the  complaint  did  not  constitute 
a  cause  of  action.  Second.  That  it  was  not  competent  to  vary  the 
terms  of  the  written  contract  by  parol  proof  that  the  party  who 
executed  the  same  as  principal  was  not  a  principal,  but  an  agent. 

The  plaintiffs'  counsel  further  offered  to  prove  that  Hurlburd 
was  constituted  by  parol  agent  to  enter  into  and  execute  the  con- 
tract in  behalf  of  the  defendant  Partridge ;  that  at  the  time  the  con- 
tract was  made  the  plaintiffs  did  not  know  that  Partridge  was  the 
real  principal ;  that  the  plaintiff's  tendered  a  deed  to  Hurlburd,  and 
did  not  at  that  time  know  that  Partridge  was  the  real  principal. 

The  motion  was  thereupon  granted,  and  plaintiffs'  counsel  duly 
excepted. 

Andrews,  J. — The  defendant  was  not  a  party  to  the  agreement 
for  the  sale  and  purchase  of  the  land.  He  did  not  sign  it  himself, 
nor  did  it  purport  to  have  been  executed  for  him  by  Hurlburd.  His 
name  does  not  appear  in  it,  and  there  is  nothing  upon  the  face  of 
the  agreement  to  indicate  that  he  was  in  any  way  connected  with 
or  interested  in  the  purchase.  The  covenants  in  the  agreement 
are  solely  between  the  plaintiff  and  Hurlburd.  The  former  cove- 
nants to  sell  and  convey  the  land  to  Hurlburd,  and  Hurlburd  cov- 
enants to  purchase  and  to  pay  the  purchase-money  as  stipulated. 
The  defendant  took  no  part  in  the  negotiation  of  the  agreement, 
and  the  plaintiff,  when  he  made  and  executed  it,  had  no  knowledge 
that  Hurlburd  w^as  acting  as  the  agent  of  the  defendant.  The  agree- 
ment was  under  seal,  each  party  affixing  his  own  seal  to  the  in- 


464  UNDISCLOSED    PRINCIPAL. 

strument.  Hurlburd,  the  apparent  purchaser,  was  in  fact  acting 
in  the  transaction  as  the  agent  of  the  defendant,  his  undisclosed 
principal,  under  an  oral  authority  to  enter  into  the  contract  in  his 
behalf,  and  the  defendant  furnished  the  money  to  make  the  down 
payment  to  the  broker  who  negotiated  the  sale.  This  action  is 
brought  by  plaintifif  upon  the  agreement  to  recover  the  unpaid  pur- 
chase-money, and  it  is  sought  to  enforce  it  against  the  defendant 
as  the  real  purchaser  and  party,  upon  the  ground  that  Hurlburd, 
the  nominal  purchaser,  was  acting  for  him  and  by  his  authority  in 
the  transaction.  The  real  question  is.  Can  the  vendor,  in  a  sealed 
executory  agreement,  inter  partes,  for  the  sale  of  land,  enforce  it 
as  the  simple  contract  of  a  person  not  mentioned  in  or  a  party  to 
the  instrument,  on  proof  that  the  vendee  named  therein,  and  who 
signed  and  sealed  it  as  his  contract,  had  oral  authority  from  such 
third  person  to  enter  into  the  contract  of  purchase,  and  acted  as 
his  agent  in  the  transaction,  and  can  the  vendor  on  this  proof,  there 
having  been  no  default  on  his  part,  and  he  being  ready  and  willing 
to  convey,  recover  of  such  third  person  the  unpaid  purchase-money  ? 
This  question  here  arises  in  a  case  where  the  vendor,  so  far  as  it 
appears,  has  remained  in  possession  of  the  land,'  and  where  no  act 
of  ratification  of  the  contract  by  the  undisclosed  principal  has  been 
shown.  It  is  not  disputed,  and  indeed  it  cannot  be,  that  Hurlburd 
is  bound  to  the  plaintiff  as  covenantor,  upon  the  covenants  in  the 
agreement.  He  covenants  for  himself  and  not  for  another,  to  pay 
the  purchase-money,  and  by  his  own  seal  fixes  the  character  of 
the  obligation  as  a  specialty.  He  is  liable  to  perform  the  contract 
irrespective  of  the  fact  whether  it  can  be  enforced  against  his  nom- 
inal principal.  On  the  other  hand  it  is  equally  clear  that  Hurl- 
burd's  covenant  cannot  be  treated  as,  or  made  the  covenant  of  the 
defendant.  Those  persons  only  can  be  sued  on  an  indenture  who 
are  named  as  parties  to  it,  and  an  action  will  not  lie  against  one 
person  on  a  covenant  which  purports  to  have  been  made  by  another. 
(Beckham  v.  Drake,  9  M.  &  W.  79;  Spencer  v.  Field,  10  Wend.  88; 
Townsend  v.  Hubbard,  4  Hill  351.) 

In  the  case  last  cited,  it  was  held  that  where  an  agent  duly  au- 
thorized to  enter  into  a  sealed  contract  for  the  sale  of  the  land  of 
his  principals,  had  entered  into  a  contract  under  his  own  name  and 
seal,  intending  to  execute  the  authority  conferred  upon  him,  the 
principals  could  not  treat  the  covenants  made  by  the  agent  as  theirs, 
although  it  clearly  appeared  in  the  body  of  the  contract  that  the 
stipulations  were  intended  to  be  between  the  principals  and  pur- 
chasers, and  not  between  the  vendees  and  the  agent.  The  plain- 
tiffs in  that  case  were  the  owners  of  the  land  embraced  in  the  con- 
tract, and  brought  their  action  in  covenant  to  enforce  the  covenant 
of  the  vendees  to  pay  the  purchase-money,  and  the  court  decided 
that  there  was  no  reciprocal  covenant  on  the  part  of  the  vendors 
to  sell,  and  that  for  want  of  mutuality  in  the  agreement  the  action 


i 


LIABILl  ;<D   PARTY.  4t/5 

'.iiaintained.     It  •  he  plaintiff  can 

as>  \j\  'IS  with  whom  .  1  tieat  the  con- 

;:aot  ac  I.  contract  of  the  'lom  it  now  ap- 

iluilijurd  was  acting,  this  accioii  inusl  lail.  -^ 

.cs  in  his  behalf  the  doctnnc  thr.t  must  now  b-. 
'C  the  settled  law  of  thi-  h  is  supported 

Mti'.,>i;i,    .'   -where,  that  .  e  charged  np'.'- 

utory  contr  >y  an  agent 

uciiiif.  wiLiiiii  ills  authorit} ,    -•  '    'le  pnu,-. 

not  aprxMr  in  the  instrunK-nl.  ;.  and  tl: 

•th  the  agent  supposed  liiat  lie  w.  ■  'or  himseli,  auu 

ne  obtains  as  well  ''n  respect  to  •vhich   are  re- 

I)e  in  writing,  a  where  a  w 

di.lity.      (Higgiu.  ::<r    R  AT    :■ 

\c\.  §c  Ellis  594 
.  1  irst  Nat.  Bank  ci  ,.    >     j>  j^  ,  ' 

Kow.  289;  Hunting*  7  Cush.  371 

Co.  V.  Benedict,  5  Gra>  501; ;  liubbert  v.  Bordeu,  0  W  i., 
'rowning  v.Provincial  Ins.  Co..  s  L-  R-   [P.  C]  263;  Cdi 
Dobell,  6  L.  R.  [C.  P.]  486:  Story  on  Agency,  §§  14S,  160. 
iloubtless,  somewhat  difficult  to  reconcile  the  doctrine  here 
h  the  rule  that  parol  evidence  is  inadmissible  to  change, 
vary  a  written  contract,  and  the  argument  upon  which  it 
-ted  savors  of  subtlety  and  refinement.     In  some  of  the 
<e.s  the  doctrine  that  a  written  contract  of  the 
.d  against,  the  principal  was  stated  with  the  '■ 
applied  when  it  could  be  collected  from  t' 
lie  intention  was   to  bind  the  princiiJiil. 
m  examination  of  the  cases  cited,  th 

regarded  as  an  e'^^-"'-''   '•'■■'      ' 
I  there  may  have  !>• 
f  the  doctrine  referrci  :   ,    :  i_^  • 
■nhrown,  and  I  am  of  '-^ninim-;.  jii 
\v  declared  is  to  • 
ccognized  exce]; 
:ige,  resting 
^-^  liable  instrn; 
he  parties  whosi 
Marly  cannot  be  char. 
'~  or  indorsed  as  his 
nd.  94 :  Pentz  v.  St;i 
571  ;  Stackpole  v.  Ai 
'ict.  5  Gray  566;  Beckham  v.  Dr 
•.\Vi\    li;)i!    omi    rint'ii  .1  ij  V     friNM:     n  , 


rVDI? CLOSED   -pm- 


J    UN    i  :  •  .1  I  '  .  ,      II.'.        ^l|(,  /.n  1,  1  I  I      |.-  Li  1  V.  J  1. 

nsaction  as  the  agent  of  the  de 
.\:di,  under  an  oral  authority  to  enter 
and  the  defendant  furnished  the  n-; 
o  the   broker  who   negotiate' 
;•  plaintiff  upon  the  agreenier: 
money,  and  it  is  sought  to  enfo; 
...  ...c  real  purchaser  and  party,  v.r>ry 

th€  nominal  purcha.ser,  was  acting 
the  transaction.     The  real  question 
executory  agreement,  inter  paries, 
as  the  simple  contract  of  a  person 
the  instrument,  on  prcw^f  that  the 
signed  and  sealed  it  as  his  co- 
ihWA  person  to  enter  into  the 
;ent  in  the  transaction,  an 
. .  -     ■  "'•— •  '^-^  'i-^fault  on  '  • 
of  such 


deici 
are  n:.   . 
person  on 
( Beckhai ' 
Town  sen'' 

In  the 
''-^nri/od  ' 


;>als  coul 
u'.'iigh  it  clt-Hi'i 
-tipulations  were 
rs,  and  not  1 
'1  that  case  \. 
■  brought  thv 
)idees  to  p3' 
that  there  was  n. 


':sclo.sed 

in  his 

^  down 

-   action   is 

iinpaid  pur- 

'   the  defendant 

..;  that  Hurlburd, 

by  his  authority  in 

vendor,  in  a  sealed 

!">f  land,  enforce  it 

!  or  a  party  to 

■  rein,  and  who 

rity  from  such 

,  and  acted  as 

iiis  proof,  there 

udy  and  willing 

irchase-money  ? 

cncior,  so  far  as  it 

:    and  where  no  act 

!  principal  has  been 

•.'  t  be,  that  Hurlburd 

n  the  covenants  in  the 

not  for  another,  to  pay 

;   fixes  the  character  of 

to  perform  the  contract 

forced  against  his  nom- 

is  equally  clear  that  Hurl- 

r  made  the  covenant  of  the 

n  be  sued  on  an  indenture  who 

i  action  will  not  lie  against  one 

rs  to  have  been  made  by  another. 


ir.  c,.n 


l\^■^i■ 


!iere  au  agcni  clui\-  au- 

the  <=i1e  of  the  land  of 

own  name  and 

iiDon  him,  the 

;it  as  theirs, 

•ct  that  the 

-  wid  pur- 

u.     The  pbi" 

ced  in  the  o 

• e  the  covenant 

e  court  decided 

he  part  of  the  vendors 

■■:•    :i'if<''PTncnl    tlu-    MrfloiT 


LIABILITY    PRINCIPAL   TO   THIRD    PARTY.  465 

could  not  be  maintained.  It  i.s  clear,  that  unless  the  plaintiff  can 
pass  by  the  persons  with  whom  he  contracted,  and  tieat  the  con- 
tract as  the  simple  contract  of  the  defendant,  for  whom  it  now  ap- 
pears that  Hurlburd  was  acting,  this  action  must  fail.  The  plain- 
tiff' invokes  in  his  behalf  the  doctrine  that  must  now  be  deemed  to 
be  the  settled  law  of  this  court,  and  which  is  supported  by  high 
authority  elsewhere,  that  a  principal  may  be  charged  upon  a  writ- 
ten parol  executory  contract  entered  into  by  an  agent  in  his  own 
name,  within  his  authority,  although  the  name  of  the  principal  does 
not  appear  in  the  instrument,  and  was  not  disclosed,  and  the  party 
dealing  with  the  agent  supposed  that  he  was  acting  for  himself,  and 
this  doctrine  obtains  as  well  in  respect  to  contracts  which  are  re- 
quired to  be  in  writing,  as  to  those  where  a  writing  is  not  essential 
to  their  validity.  (Higgins  v.  Senior,  8  M.  &  W.  834;  Trueman 
V.  Loder,  11  Ad.  ,&  Ellis  594;  Dykers  v.  Townsend,  24  N.  Y.  61; 
Coleman  v.  First  Nat.  Bank  of  Elmira,  53  N.  Y.  393  :  Ford  v.  Wil- 
liams, 21  How.  289;  Huntington  v.  Knox.  7  Cush.  371  ;  The  East- 
em  R.  R.  Co.  V.  Benedict,  5  Gray  566 ;  Hubbert  v.  Borden,  6  Whar- 
ton 91  ;  Browning  v.Provincial  Ins.  Co.,  5  L.  R.  [P.  C]  263;  Cal- 
der  v.  Dobell,  6  L.  R.  [C.  P.]  486:  Stor>^  on  Agency,  g§  148,  160. 

It  is,  doubtless,  somewhat  difficult  to  reconcile  the  doctrine  here 
stated  with  the  rule  that  parol  evidence  is  inadmissible  to  change, 
enlarge  or  vary  a  written  contract,  and  the  argument  upon  which  it 
is  supported  savors  of  subtlety  and  refinement.  In  some  of  the 
earlier  cases  the  doctrine  that  a  written  contract  of  the  agent  could 
be  enforced  against  the  principal  was  stated  with  the  qualification, 
that  it  applied  when  it  could  be  collected  from  the  whole  instrument, 
that  the  intention  was  to  bind  the  principal.  But  it  will  appear 
from  an  examination  of  the  cases  cited,  that  this  qualification  is  no 
longer  regarded  as  an  essential  part  of  the  doctrine.  Whatever 
ground  there  may  have  been  originally  to  question  the  legal  sound- 
ness of  the  doctrine  referred  to,  it  is  now  too  firmly  established  to 
be  overthrown,  and  I  am  of  opinion,  that  the  practical  effect  of  the 
rule  as  now  declared  is  to  promote  justice  and  fair  dealing.  There 
is  a  well  recognized  exception  to  the  rule  in  the  case  of  notes  and 
bills  of  exchange,  resting  upon  the  law  merchant.  Persons  deal- 
ing with  negotiable  instruments  are  presumed  to  take  them  on  the 
credit  of  the  parties  whose  names  appear  upon  them  ;  and  a  person 
not  a  party  cannot  be  charged  upon  proof  that  the  ostensible  party 
signed  or  indorsed  as  his  agent.  (Barker  v.  Mechanics'  Ins.  Co., 
3  Wend.  94;  Pentz  v.  Stanton,  10  id.  271  ;  De  Witt  v.  Walton,  9 
N.  Y.  571  ;  Stackpole  v.  Arnold,  11  Mass.  27;  Eastern  R.  R.  Co.  v. 
Benedict,  5  Gray  566:  Beckham  v.  Drake,  9  :\I.  &  W.  79.)  That 
Hurlburd  had  oral  authority  from  the  defendant  to  enter  into  a 
contract  for  the  purchase  of  the  land,  and  that  he  was  acting  for  the 
defendant  in  making  it  is  admitted  ;  and  if  the  contract  had  been 
30 — Reinhard  Cases. 


466  UNDISCLOSED    PRINCIPAL. 

a  simple  contract  and  not  a  specialty  the  defendant  would,  I  think, 
have  been  bound  by  it  within  the  authorities  cited.  No  question 
would  arise  under  the  statute  of  frauds,  for  the  statute  prescribing- 
what  shall  be  necessary  to  make  a  valid  contract  for  the  sale  of 
lands  requires  only  that  the  contract,  or  some  note  or  memorandum 
thereof  expressing  the  consideration,  should  be  in  writing  and  sub- 
scribed by  the  party  by  whom  the  sale  is  to  be  made,  or  his  agent 
lawfully  authorized.  (2  R.  S.  135,  §§8,  9.)  In  this  case  the  con- 
tract was  signed  by  the  vendors ;  and  even  if  it  had  been  executed 
on  their  part  by  an  agent  pursuant  to  an  oral  authority,  it  would 
have  been  a  valid  execution  within  the  statute.  (Lawrence  v.  Tay- 
lor, 5  Hill  113;  Worrall  v.  Munn,  i  Seld.  229.)  But  the  vendee's 
contract  need  not  be  in  writing.  (McCrea  v.  Purmort,  16  Wend. 
469.) 

We  return,  then,  to  the  question  originally  stated.  Can  a  con- 
tract under  seal,  made  by  an  agent  in  his  own  name  for  the  pur- 
chase of  land,  be  enforced  as  the  simple  contract  of  the  real  prin- 
cipal when  he  shall  be  discovered?  No  authority  for  this  broad 
proposition  has  been  cited.  There  are  cases  which  hold  that  when 
a  sealed  contract  has  been  executed  in  such  form,  that  it  is,  in  law, 
the  contract  of  the  agent  and  not  of  the  principal,  but  the  princi- 
pal's interest  in  the  contract  appears  upon  its  face  and  he  has  re- 
ceived the  benefit  of  the  performance  by  the  other  party  and  has 
ratified  and  confirmed  it  by  acts  in  pais,  and  the  contract  is  one 
which  would  have  been  valid  without  a  seal,  the  principal  may  be 
made  liable  in  assumpsit  upon  the  promise  contained  in  the  instru- 
ment, which  may  be  resorted  to  to  ascertain  the  terms  of  the  agree- 
ment. (Randall  v.  Van  Vechten,  19  J.  R.  60;  Du  Bois  v.  The  Del. 
and  Hud.  Canal  Co.,  4  Wend.  285 :  Lawrence  v.  Taylor,  5  Hill  107 ; 
see  also,  Evans  v.  Wells,  22  Wend.  324 ;  Worrall  v.  Alunn,  supra; 
Story  on  Agency,  §277;  i  Am.  Lead.  Cas.  735,  note.) 

The  plaintiff's  agreement  in  this  case  was  with  Hurlburd  and 
not  with  the  defendant.  The  plaintiff  has  recourse  against  Hurl- 
burd on  his  covenant,  which  was  the  only  remedy  which  he  con- 
templated when  the  agreement  was  made.  No  ratification  of  the 
contract  by  the  defendant  is  shown.  To  change  it  from  a  specialty 
to  a  simple  contract,  in  order  to  charge  the  defendant,  is  to  make 
a  different  contract  from  the  one  the  parties  intended.  A  seal  has 
lost  most  of  its  former  significance,  but  the  distinction  between 
specialties  and  simple  contracts  is  not  obliterated.  A  seal  is  still 
evidence,  though  not  conclusive,  of  a  consideration.  The  rule  of 
limitation  in  respect  to  the  two  classes  of  obligations  is  not  the  same. 
We  find  no  authorit}'  for  the  proposition  that  a  contract  under  seal 
may  be  turned  into  the  simple  contract  of  a  person  not  in  any  way 
appearing  on  its  face  to^  be  a  party  to  Or  interested  in  it,  on  proof 
de  hors  the  instrument,  that  the  nominal  party  was  acting  as  the 
agent  of  another,  and  especially  in  the  absence  of  any  proof  that 


the  aP' 


has  re  I. 


by  an 

The  gv-i.    <i.  ■ 
nox  {7  Cush.  \ 


■J.  ■■;/".:  ract   IS  maac  by 

IV,.    '    t  a  party  to  the  1 

'■'  "r     L   ';::!  :      '       :    ;  .      •  riiev  or 

-   liv:  p-n-:,.  ..     V.  -  tr;^i!   I. 

IS  not  bound  by 

The  judgmert 

Vll  concur. 

iudgment  afiinuec 


r  upon  :■ 


.1  Streeu 
^aid  Streeter,  niau-- 
.t  Ihc  trial  i-  :be 


>g  the  defendant  to 
'tier,  and  know"'        '    ' 
Streeter  was  ■ 
■  'd    to    L 
owned  i 
Iden  on  my  den 
h,.  defendant  r^ 
reeter  1^ 


t.  and  two  j 

d  "N.  H.  b. ,...., 

carried  on  the  buj 


1  any 
trine 

•  I 

1 


said  stable  busiii 


mud  by  it  within  tl 


t  shall 
liicds  requir, 
thereof  expi 
scribed  by  v 
lawfully  ail'' 
tract  w; 
on  their 
have  be 
lor.       ' 
rop' 


which 

, 1.-,   i; 


bard 


questio:; 

■  •scribing 

sal('    nl 


■>r  his  ageni 

■■<■-''  the  con- 

tixecutC' ! 

,  L_\ ,  it  would 

ence  v.  Tay- 

•  the  vendee'- 

it,  i6  Wend 

Can  at 
for  the  pur 
lie  real  p'"'" 
r  this  I 
Hold  that  \ 
that  it  is,  in 
1,  but  the  pr 
1-  and  he  ha 
ihe  other  |.>arty  and  has 
"'d  the  contract  is  one 
ihe  principal  may  be 
'Mitained  in  the  instru- 
.1  the  terms  of  the  agree - 
:  Du  Bois  V.  llie  Del. 
Taylor,  5  Hill  T07 . 
V.  Munn,  supra: 

Ar.) 

lurlburd  and 
j^ainst  Hurl- 

liich  he  con- 
ation of    ' 

.1]    a    cn^'- 


ion  bet- 


W', 


n tract  under 
ii  not  in  an) 
•1  in  it.  on  y 
party  was  actin 

-f-nrc  or   .thv  P' 


LIABILITY    PRINCIPAL   TO    THIRD    PARTY.  467 

the  alleged  principal  has  received  any  benefit  from  it,  or  has  in  any 
way  ratified  it,  and  we  do  not  feel  at  liberty  to  extend  the  doctrine 
applied  to  simple  contracts  executed  by  an  ag-ent  for  an  unnamed 
principal  so  as  to  embrace  this  case.  The  general  rule  is  declared 
by  Shaw,  Ch.  J.,  in  Huntington  v.  Knox  (7  Cush.  374)  :  "Where 
a  contract  is  made  by  deed,  under  seal  on  technical  grounds,  no 
one  but  a  party  to  the  deed  is  liable  to  be  sued  upon  it,  and  there- 
fore if  made  by  an  attorney  or  agent  it  must  be  made  in  the  name 
of  the  principal  in  order  that  he  may  be  a  party,  because  otherwise 
he  is  not  bound  by  it." 

The  judgment  of  the  general  term  should  be  affirmed. 

All  concur. 

Judgment  affirmed.^ 


BROWN  V.  PARKER. 
1863.     Supreme  Judicial  Court  of  Massachusetts.     7  Allen  337. 

Contract  upon  an  account,  and  two  promissory  notes  payable  to 
the  plaintiff  or  order,  signed  "N.  H.  Streeter."  The  declaration 
alleged  that  the  defendant  carried  on  the  business  of  keeping  a 
livery  stable  under  the  name  and  style  of  N.  H.  Streeter,  employ- 
ing said  Streeter  as  his  agent  to  manage  the  business,  and  that  he, 
by  said  Streeter,  made  each  of  the  notes. 

'  At  the  trial  in  the  superior  court,  before  James,  J.,  it  appeared 
that  the  notes  were  given  for  carriages  sold  by  the  plaintiff  and  de- 
livered at  the  stable;  and  the  plaintiff  testified  that  he  sold  them, 
believing  the  defendant  to  be  interested  in  the  stable  as  owner  or 
partner,  and  knowing  that  he  was  of  sufficient  ability  to  pay,  and 
that  Streeter  was  insolvent.  There  was  evidence  that  the  defend- 
ant admitted  to  another  witness  that  he  was  interested  in  the 
stable  and  owned  the  stock;  whereupon  the  witness  asked,  "Are 
you  holden  on  my  demands?  I  have  taken  Streeter's  notes;"  to 
which  the .  defendant  replied,  "Yes,  they  will  be  paid.  I  own  the 
stock."  Streeter  had  the  general  management  of  the  business  at 
the  stable,  under  a  power  of  attorney  from  the  defendant  which  con- 
tained the  following  language : 

"Now  said  Parker  hereby  makes  said  Streeter  his  agent  to  man- 
age said  stable  stock  as  a  let  stable,  and  gives  him  full  authority 
to  carry  on  said  stable  business  and  to  make  any  purchase  that  may 
be  necessary  therefor,  the  said  Streeter  keeping  regular  accounts 
open  at  all  times  to  the  inspection  of  said  Parker,  and  accounting 
to  said  Parker  once  a  quarter,  beginning  with  April   i,   1858;  for 

^Accord:  Jones  v.  Morris,  61  Ala.  518.  Compare  Moore  v.  Granby  Mining, 
etc.,  Co.,  80  Mo.  86. 


468 


UNDISCLOSED    PRINCIPAL. 


which  said  services  as  agent  said  Parker  is  to  allow  said  Streeter 
the  sum  of  three  hundred  and  seventy-five  dollars  per  quarter,  and 
five  per  cent,  commissions  on  the  net  profits  of  said  business." 

The  plaintifif  also  ofifered  to  prove,  by  parol  evidence,  "that  the 
defendant  admitted  Streeter's  agency,  and  his  authority  to  sign 
these  notes  for  him  ;"  but  the  judge  ruled  that,  under  the  circum- 
stances, parol  evidence  was  not  admissible  for  the  purpose  of  show- 
ing that  Streeter  signed  these  notes  as  agent  of  the  defendant,  or 
that  the  defendant  was  bound  by  his  signature. 

Tlie  defendant  thereupon  was  allowed  to  file,  against  the  plain- 
tiflf's  objection,  a  written  paper,  consenting  to-  a  verdict  against  him 
for  the  amount  of  the  account ;  and  a  verdict  was  accordingly  re- 
turned for  that  amount  only.     The  plaintiff  alleged  exceptions. 

BiGELow,  C.  J. — There  can  be  no  doubt  that,  on  well-settled 
principles,  persons  or  coqwrations  may  be  held  liable  on  contracts, 
express  or  implied,  negotiable  or  otherwise,  entered  into  and  exe- 
cuted under  a  name  or  style  different  from  that  which  usually  and 
properly  belongs  to  them,  and  in  which  their  own  proper  names 
or  signatures  do  not  appear  at  all.  But  such  liability  exists  only 
where  it  is  affirmatively  and  satisfactorily  proved  that  the  name  or 
signature  thus  used  is  one  which  has  been  assumed  and  sanctioned 
as  indicative  of  their  contracts,  and  has  been  with  their  knowledge 
and  consent  adopted  as  a  substitute  for  their  own  names  and  signa- 
tures in  signing  notes  or  executing  other  written  contracts.  In  such 
cases,  the  adopted  name  is  in  law  equivalent  to  the  actual  name  of 
the  party.  Melledge  v.  Boston  Iron  Co.,  5  Cush.  158,  173.  But 
the  evidence  in  this  case  failed  to  show  that  the  defendant  ever  rec- 
ognized the  name  affixed  to  the  notes  declared  on  as  equivalent  to 
his  signature,  or  in  any  way  authorized  any  contract  to^  be  signed 
by  a  name  other  than  or  different  from  his  own.  Nor  was  there  a 
foundation  laid  by  the  proof  of  facts  from  which  any  such  inference 
could  be  drawn.  On  the  contrary,  the  agreement  or  power  of  attor- 
ney produced  by  the  plaintiff  in.  support  of  his  case,  and  by  virtue 
of  which  it  is  alleged  that  the  defendant  is  liable  for  the  notes,  is 
a  mere  contract  of  agenc}",  which  not  only  does  not  contain  any  stip- 
ulation by  which  the  business  is  to  be  carried  on  or  contracts  are  to 
be  made  in  the  name  of  the  agent  as  a  substitute  for  that  of  the  de- 
fendant, but  does  not  even  confer  on  the  agent  any  authority  to 
give  negotiable  promissory  notes  in  the  name  of  the  principal  or 
otherwise  for  the  purpose  of  transacting  the  business  of  the  agency. 
Without  express  authority  he  could  not  properly  sign  notes  in  the 
name  of  the  principal.  An  ag"ent  employed  to  make  purchases  can- 
not give  negotiable  paper  on  which  his  principal  will  be  liable.  Ta- 
ber  V.  Cannon,  8  Met.  456 ;  Webber  v.  Williams  College,  23  Pick. 
302.  Nor  did  the  other  evidence  offered  by  the  plaintiff  sustain 
the  proposition  that  the  name  of  the  agent  was  by  sanction  or  adop- 
tion or  usage  a  substitute  for  that  of  the  principal.     Taken  in  its 


i 


LIABILIT  i'X) 

broadest  aspect,  and  '^,  of  which  it  is 

r  r     -nably  susceptible,  it  i.  a  vcibal  aumission  of  agency, 

iiiiii  of  an  authority  by  th.  t  sign  the  notes  in  suit  for  him. 

But  the  difficulty  with  ■  oi  the  case  is,  that  the  agent  did  not 

execute  this  authority.  '  sign  the  notes  for  the  defendant, 

but  he  affixed  his  own  nan.  ■.    The  plaintifT  did  not  offer  to 

show  that  the  defendant  adrnu  ignature  of  the  agent  to  be 

his,  or  that  it  was  tised  in  lieu  i  ■  as  a  substitute  therefor. 

As  the  case  stood,  therefore,  or,  it  was  the  • 

the  agent  only.     Parol  e\idence  was  o  show  tb?,' 

given  in  the  course  of  the  agency,  or  on  aci 

the  principal.     Such  evideiv  f   ^^  rmld   have   :..  ..    .  _ 

action  brought  on  a  writter 
ington  V.  Knox,  7  Cush     - 
bills  of  exchange,  no  • 
principal  whose  nai, 

the  note  or  draft.    1 

•nwealth,  and  the  reasurts  on  which  the  rule  rests  have  bee 

.ited  in  very  recent  'L' '?'on.-.     Sli^wson  v,  Loring,  5  Allc__   ^, . 

d  cases  cited. 

We  do  not  see  l.v.vv  ..^v,  ,.,0.^..,,,  >  o>  aggrieved  by  the  ruling  of 
the  court  allowing  the  defendant  to  file  the  written  paper  consent- 
ing to  a  verdict  on  the  count  for  labor  and  services.  The  plaintiff 
had  a  verdict  for  all  that  he  could  legally  claim,  and  he  cou'd  not 
rightfully  use  the  fact  that  the  defendant  was  wil'  !d 

responsible  for  the  amount  of  the  account  as  evideii.  :i- 

on  the  notes.  Exceptions  overruled- 


ontract,  not 

Hunt- 

in  suits  on  px:n< 

'-■■  or 

Imissible  to  cha: 

•n 

way  disclosed 

e 

n  often  decided  in 

-- 

I 


KAYTON  ET 

;URT  OF  A, 

Appeal  fhom  judgment  ■  ^  of  'he  sm 

the  city  of  New  Yoi 
86,  which  denied  a  m.-L.. 
favor  of  defendants,  entc .  :"f s 

trial. 

full  discu5si'„ii;  r^:..  '     ^    a 

bic  instrument    in  In 

Pioneer  Mining  C",  -  .-e 

>,"   etc.,   and   w.i?   signed  n. 


e  (iiscussion  ut  Ojar.ii  i-ioward,  Harv.  Law 

<;6. 


4^'iS 


UNDISCLOSED 


a-  plaintiff  al?'' 

'  to  prove.  1- 

■  :   ^enclant  admitte. 

•"s   afrencv, 

tiicse  notes  for 

stances,  parol  c 

ing  that  Stree' 

se  n(»tes  as 

that  the  defendi  . 

d  by  his  sig ;.,.... 

The  defendant  t 

was  allowed  to 

tiff's  object'  •• 

per,  consenti- 

for the  ar- 

ent;  and  a 

turned  for  uini 

..■niy.     The  plai. 

BlGEVr-'v.    < 

•re  can  be   no 

princij 

rations  . 

. .Jjle   or  ■>  I 

(a  '  (''C  ■ 

style  di*                  'in 

icin,  and                  '   ''" 

.]>pear  at 

and  sa; 

•ne  whic; 

h  said  services  as  agfent  said  Parkev  is  to  allow  said  Streeter 
i^m  of  three  hundred  and  seventy-f^' -  .!..);.  -.^m-  quarter,  and 
:  cent,  commissions  on  the  net  pr<  'isiness." 

.  "that  the 
y    to   sign 
■le  circum- 
.,  c  of  show- 
defendant,  or 


file,  against  the  plain- 

''ct  against  him 

ccordingly  re- 

xceptions. 

n   well-settled 

on  contracts, 

into  and  exe- 

m  that  which  usually  and 

•  "^  proper  names 

ity  exist?  only 

I  tnat  the  name  or 

led  and  sanctioned 

;cts,  aiitl  lias  been  with  their  knowledge 

ibstitute  for  their  own  names  and  signa- 

,'cuting  other  written  contracts.    In  such 

M  t'l A   (•  ,n;.  ii,  nt  to  the  actual  nam-e  of 

Cush.   158,  173.     But 

jii  to  s:  ;he  defendant  ever  rec- 

the  not  ed  on  as  equivalent  to 

'Vhorizt..  c.iv  contract  to  be  signed 

lit  from  h     Mwn.     Nor  was  there  a 

'.acts  frc  any  such  inference 

f^'^  :■  "T  power  of  attor- 

and  by  virtue 

•-    i'<r  ^he  notes,  is 

»t  contain  any  stii> 

nntracts  are  to 

'hat  of  the  de- 

o-n   Ltjc  •    authority  to 

the  nai.  c  principal  or 

ting  the  busmess  of  the  agency. 

•^  ^t  properly  sign  notes  in  the 

ved  to  make  purchases  can- 

'  v.ill  be  liable.    Ta- 

:  ^  College,  23  Pick. 

.  i^iviiCL   ■ili-.ied  by   the  plaintiff  sustain 

^  '    ^f  the  :\^;'nt  was  by  sanction  or  adop- 

e  princifial      Taken  in  ; 


the  c, 

ognizc 

his  signati 

by  a  name 

foundation  iaiM 

could  be  drawr. 

ney  produced  I 

■  '''  ■  '--ch  it  is  . 
contrac! 
1  by  which  l: 
ie  in  the  naiv 

iV.iviani.   but  does   . 

;"•■  '     negotiable  pn 

ise  for  the  purp< 
*    'y press  authoi 
J  principal. 

n.  [  give  r.egotiable  paj. 

ber  V.  Cannon,  8  Met. 

302.     Nor  did  the  other  . 

the  proposition  tliat  the  nnn 

tion  or  usage  a  substit; 


LIABILITY    PRINCIPAL    TO    THIRD    PARTY.  469 

broadest  aspect,  and  giving  to  it  the  fullest  effect  of  which  it  is 
reasonably  susceptible,  it  only  shows  a  verbal  admission  of  agency, 
and  of  an  authority  by  the  agent  to  sign  the  notes  in  suit  for  him. 
But  the  difficulty  with  this  part  of  the  case  is.  that  the  agent  did  not 
execute  this  authority.  He  did  not  sign  the  notes  for  the  defendant, 
but  he  affixed  his  own  name  to  them.  The  plaintiff  did  not  offer  to 
show  that  the  defendant  admitted  the  signature  of  the  agent  to  be 
his,  or  that  it  was  used  in  lieu  thereof,  or  as  a  substitute  therefor. 

As  the  case  stood,  therefore,  on  the  evidence,  it  was  the  note  of 
the  agent  only.  Parol  evidence  was  inadmissible  to  show  that  it  was 
given  in  the  course  of  the  agency,  or  on  account  of  the  business  of 
the  principal.  Such  evidence  would  have  been  competent  in  an 
action  brought  on  a  written  simple  contract,  not  negotiable.  Hunt- 
ington V.  Knox,  7  Cush.  371.  But  in  suits  on  promissory  notes  or 
bills  of  exchange,  no  evidence  is  admissible  to  charge  any  person 
as  principal  whose  name  is  not  in  some  wav  disclosed  on  the  face 
of  the  note  or  draft.  This  point  has  been  often  decided  in  this  com- 
monwealth, and  the  reasons  on  which  the  rule  rests  have  been  fully 
stated  in  very  recent  decisions.  Slawson  v.  Loring,  5  Allen  340, 
and  cases  cited. 

We  do  not  see  how  the  plaintiff  was  aggrieved  by  the  ruling  of 
the  court  allowing  the  defendant  to  file  the  written  paper  consent- 
ing to  a  verdict  on  the  count  for  labor  and  services.  The  plaintiff 
had  a  verdict  for  all  that  he  could  legally  claim,  and  he  could  not 
rightfully  use  the  fact  that  the  defendant  was  willing  to  be  held 
responsible  for  the  amount  of  the  account  as  evidence  of  his  liabil- 
ity on  the  notes.   Exceptions  overruled.^ 


I 


KAYTON  ET  AL.  V.  BARNETT  et  al. 

1889.     Court  OF  Appeals  OF  New  York.     116N.  Y.  625. 

Appeal  from  judgment  of  the  general  term  of  the  superior  court 
of  the  city  of  New  York,  entered  upon  an  order  made  December  2, 
1886,  which  denied  a  motion  for  a  new  trial  and  directed  judgment 
in  favor  of  defendants,  entered  upon  an  order  non-suiting  plaintiffs 
on  trial. 

'  See  full  discussion  regarding  the  liability  of  an  undisclosed  principal  on  a 
negotiable  instrument  in  Sparks  v.  Dispatch  Transf.  Co.,  104  Mo.  531.  In 
Bean  v.  Pioneer  Mining  Co.,  66  Cal.  451,  a  promissory  note  read  "we  promise 
to  pay,"  etc.,  and  was  signed  "Pioneer  ^Mining  Company,  John  E.  Mason, 
Sup't."  It  was  held  that,  as  the  note  was  ambiguous,  parol  evidence  was  ad- 
missible to  show  that  it  was  the  note  of  the  company. 

See  Van  Dyke  v.  Van  Dyke,  123  Ga.  686. 

See  discussion  of  Coaling  Co.  v.  Howard,  130  Ga.  807,  in  22  Harv.  Law 
Rev.  56. 


470 


UNDISCLOSED    PRINCIPAL. 


This  action  was  brought  to  recover  a  balance  of  the  purchase- 
price  alleged  to  be  due  for  certain  property  sold  by  plaintiffs  to 
defendants. 

On  the  17th  day  of  March,  1881,  the  plaintiffs  sold  and  delivered 
to  William  B.  Bishop  several  machines,  and  assigned  to  him  certain 
letters-patent  for  the  agreed  price  of  $4,500.  Bishop  paid  $3,000 
on  delivery  and  gave  three  notes,  dated  March  24,  1881,  for  $500 
each,  one  due  nine  months,  one  fifteen  months  and  one  eighteen 
months  after  date,  without  interest.  June  29,  1883,  Bishop  died 
insolvent  without  having  paid  the  notes,  or  any  part  of  them.  The 
plaintiffs  tendered  the  notes  to  the  defendants,  and  on  August  22, 
1883,  brought  this  action  to  recover  the  part  of  the  purchase-price 
represented  by  the  notes,  on  the  theory  that  Bishop,  as  agent  for 
the  defendants,  bought  the  property  for  them,  without  disclosing 
his  principals  until  after  the  execution  and  delivery  of  the  notes. 
The  defendants,  in  their  answer,  denied  that  they  purchased  the 
property,  and  alleged  that  it  was  bought  by  William  B.  Bishop,  for 
the  price  and  on  the  terms  stated  in  the  complaint. 

Further  facts  appear  in  the  opinion. 

FoLLETT,  Ch.  J. — When  goods  are  sold  on  credit  to  a  person 
whom  the  vendor  believes  to  be  the  purchaser,  and  he  afterwards 
discovers  that  the  person  credited  bought  as  agent  for  another,  the 
vendor  has  a  cause  of  action  against  the  principal  for  the  purchase- 
price.  The  defendants  concede  the  existence  of  this  general  rule, 
but  assert  that  it  is  not  applicable  to  this  case,  because,  while  Bishop 
and  the  plaintiffs  were  negotiating,  they  stated  they  would  not  sell 
the  property  to  the  defendants,  and  Bishop  assured  them  he  was 
buying  for  himself  and  not  for  them.  It  appears  by  evidence,  which 
is  wholly  uncontradicted,  that  the  defendants  directed  every  step 
taken  by  Bishop  in  his  negotiations  with  plaintiffs ;  that  the  prop- 
erty was  purchased  for  and  delivered  to  the  defendants,  who  have 
ever  since  retained  it ;  that  they  paid  the  $3,000  towards  the  pur- 
chase-price, and  agreed  with  Bishop,  after  the  notes  had  been  de- 
livered, to  hold  him  harmless  from  them.  Notwithstanding  the  as- 
sertion of  the  plaintiffs  that  they  would  not  sell  to  the  defendants, 
they,  through  the  circumvention  of  Bishop  and  the  defendants,  did 
sell  the  property  to  the  defendants,  who  have  had  the  benefit  of 
it,  and  have  never  paid  the  remainder  of  the  purchase-price  pursu- 
ant to  their  agreement.  Bishop  was  the  defendants'  agent.  Bishop's 
mind  was,  in  this  transaction,  the  defendants'  mind,  and  so  the  minds 
of  the  parties  met,  and  the  defendants  having,  through  their  own 
and  their  agent's  deception,  acquired  the  plaintiffs'  property  by  pur- 
chase, cannot  successfully  assert  that  they  are  not  liable  for  the 
remainder  of  the  purchase-price  because  they,  through  their  agent, 
succeeded  in  inducing  the  defendants  to  do  that  which  they  did  not 
intend  to  do,  and,  perhaps,  would  not  have  done  had  the  defendants 
not  dealt  disingenuously. 


LIABII 


the  jiidpriT'C''"'' 
costs  to  ut. 

All  cv  ,      Mai-ht 


ed,  with 


KELI 


jSqo.     Supreme 


Black,  J. — This  is  an  art; 
following-  contract,  which 

:■:  ■-ived  of  D.  T.  Kt 
ch;'M  I'lice  of  tifty-tvvo   ; 
*     *     *     I  agree  to  ma: 
rant}'  deed  conveying  saic 
^>      (ces  without  delay,  and  as  so 

•  have  been  examined  and  appi 
'  pay  to  me  the  sum  of  $950  in  cash  and  ($664)  the  balance 
;>urchase-price  he  shall  pay  in  three  equal  annual  installments, 

•  8  per  cent,  interest,  to  be  secured  by  deed  of  trust  executed  on 
said  property.  If  I  shall  fail  to  convey,  good  title  to  said  premises 
'(i  -..ii,!  T\'!l\-  ;-is  .if, ;:-(•-:. id    iiien  ^;,id  .s;r>  >!irt1l  be  refunded  to  him. 

'  ARD  X  TOOEY, 

■\X  T.  KELL 


good  a' 

1  Kelly  i.. .     .  . 
•  abstract  of  titl. 
<i,  at  which  time  sar.! 


vnes  T.  Kelly,  claiming^  to  b 
ciKiered  to  Thuey  the  h?' 

''  'i  may  certainly  be  '  ~" 
iversy,  that  if  an 
without  di?closin.L,   .  . 
unknown  to  the  other 
.L-  may  be  rt  cove  red  ' 
own  name,  the  a._ 
;;  who   emp]o5'5   hi 
r,th,  66  Pa.  St.  340. 
•  "1  evidence  j.s  adn: 
!  a  written  con 
N.  H.  561.    C' 

■;irke  iv   ' 
;s  the  wr.' 

.:■■,:,.     on     '■    - 

her  by  i 

;ince  ■•'  ' 

I  lie  meiTv 


i  purchaser, 
payment 


470 


rong-bt 

pnce  aliegt 
r'   fcnd^ints. 

e  17th  day  ot  Marct 
,  ,  ,,   ,  .am  B.  Bishof^  .,-^T.■■ 
letters-patent  for  tlv 
on  delivery  and  gav 
each,  one  due  nine 
months  after  d  .' 
insolvent  withor. 
plaintiffs  tendei 
1883,  hrou.sfbt  ■' 
represented  ' 
the  defr-   ■• 
his  orin 
Th.■^• 
T^r' 


triKen  b\ 
erty  wa 
ever  siii^ 
chase-p) ; 
livered,  to  i- 
section  of  t! 


ch; 

ren 111 ■.'.■.,(.;■   "■   wiv  i-.- 

succeeded  in  inducin 

intend  to  do 

not  dealt  d'; 


'he  purchase- 
■lintiffs  to 

delivered 

..m  certain 

M>  paid  $3,000 

-i,  /881,  for  $500 

and  one  eighteen 

.'  ),   1883,  Bishoi?  died 

-■\y  part  of  them.    The 

:(iants,  and  on  August  22. 

l>art  of  the  purchase-price 

that  Bishop,  as  agent  for 

.  ■  1.     i«y{    them.,  without  disclosing; 

cution  and  delivery  of  the  notes. 

,   •'  '         '  :y  purchased  the 

•  I  ■:  ni  ]\.  Bishop,  for 

■  in  ihe  cumplanit. 

Muion. 

:;^  are  sold,  on  credit  to  a  person 
^" '"  purchaser,  and  he  afterwards 
light  as  agent  for  another,  the 
i>rincipal  for  the  purchase 
ence  of  tins  general  ruk. 
lo  ihis  case,  because,  while  Bishop 
•  ]g,  they  stated  they  would  not  sell 
and  Bishop  assured  them  he  wa  • 
cm.     ^'    "■••'trs  by  evidence,  whicli 
y.  directed  .every  stej; 
i  ;''Ts ;  that  the  prop 

:idants,  who  hav\ 
towards  the  pur 
*c.->  had  been  de 
iding  the  as 
e'  defendants, 
fendants,  did 
he  benefit  of 
<  -price  pursu- 
ent.   Bishop's 
so  the  minds 
'.;"h  their  own 
...    ,  .    perty  by  pur- 
re  tiot   liable  for  the 
M>  V,  through  their  agent, 
lo  that  which  tht^y  did  not 
e  done  had  the  defendants 


LIABILITY    PRINCIPAL    TO    THIRD    PARTY.  47I 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with 
costs  to  abide  the  event. 

All  concur,  except  Haight,  J.,  not  sitting. 
Judgment  reversed.^ 


KELLY  V.  THUEY  et  al. 

1890.     Supreme  Court  of  jMissourl     102  Mo.  522. 

Black^  J. — This  is  an  action  for  the  specific  performance  of  the 
following  contract,  which  is  dated  the  i6th  of  December,  1885  : 

"Received  of  D.  T.  Kelly  $50,  being  in  part  payment  of  the  pur- 
chase-price of  fifty-two  feet  by  fifty  off  the  west  end  of  lot  No. 
*  ^:  *  I  agree  to  make  and  deliver  a  g'ood  and  sufficient  war- 
ranty deed  conveying  said  premises  to  said  Kelly  free  of  all  incum- 
brances without  delay,  and  as  soon  as  the  abstract  of  title  thereto 
shall  have  been  examined  and  approved,  at  which  time  said  Kelly 
shall  pay  to  me  the  sum  of  $950  in  cash  and  ($664)  the  balance  of 
the  purchase-price  he  shall  pay  in  three  equal  annual  installments, 
with  8  per  cent,  interest,  to  be  secured  by  deed  of  trust  executed  on 
said  property.  If  I  shall  fail  to  convey  good  title  to  said  premises 
to  said  Kellv  as  aforesaid,  then  said  $50  shall  be  refunded  to  him. 

"RICHARD  X  TOOEY, 
"BRIDGET  X  TOOEY, 
"D.  T.  KELLY." 

James  T.  Kelly,  claiming  to  be  the  real  purchaser,  in  due  time 
tendered  to  Thuey  the  balance  of  the  cash  payment  and  offered  the 

^  "It  may  certainly  be  now  regarded  as  a  point  settled,  beyond  all  possible 
controversy,  that  if  an  agent,  duly  authorized,  makes  a  contract  in  his  own 
name,  without  disclosing  his  principal,  and  even  when  such  principal  is  en- 
tirely unknown  to  the  other  contracting  party,  he  is  nevertheless  bound,  and 
damages  may  be  recovered  of  him  in  an  action  for  its  breach.  By  contract- 
ing in  his  own  name,  the  agent  only  adds  his  personal  obligation  to  that  of 
the  person  who  employs  him."  Sharswood,  J.,  in  Youghiogheny  Iron  Co. 
V.  Smith,  66  Pa.  St.  340,  343. 

Parol  evidence  is  admissible  to  establish  the  liability  of  an  undisclosed  prin- 
cipal upon  a  written  contract  executed  by  the  agent  in  his  own  name.  Chandler 
V.  Coe,  54  N.  H.  561.  On  page  572,  Hibbard,  J.,  quotes  the  following  from  the 
opinion  of  Baron  Parke  in  Higgins  v.  Senior,  8  M.  &  W.  834:  "This  evidence 
in  no  way  contradicts  the  written  agreement.  It  does  not  deny  that  it  is  bind- 
ing on  those  whom,  on  the  face  of  it,  it  purports  to  bind,  but  shows  that  it 
also  binds  another  by  reason  that  the  act  of  the  agent,  in  signing  the  agree- 
ment, in  pursuance  of  his  authority,  is  in  law  the  act  of  the  principal." 

Where  the  memorandum  of  agreement,  required  by  the  Statute  of  Frauds, 
was  signed  in  his  own  name  by  the  agent  of  an  undisclosed  principal,  parol 
evidence  is  admissible  to  establish  the  identity  of  the  principal,  who  will  be 
liable  upon  the  agreement.    Roehl,  Adm'r,  v.  Haumesser,  114  Ind.  311. 


472  UNDISCLOSED    PRINCIPAL. 

contract  by  executing  his  notes  and  deed  of  trust  for  the  deferred 
payments. 

Two  or  three  days  after  the  execution  of  the  contract,  Thuey 
sold  and  conveyed  the  entire  lot  to  the  defendant.  Bush,  who  pur- 
chased with  full  knowledge  of  the  outstanding  contract.^  *  *  * 
3.  The  further  defense  is  that  the  defendant  Thuey  made  no  con- 
tract whatever  with  the  plaintiff,  James  T.  Kelly.  The  evidence 
of  D.  T.  Kelly  is,  that  Thuey  asked  him  to  find  a  purchaser  for  a 
part  of  the  lot,  and  that  he  mentioned  the  matter  to  his  brother, 
James  T.  Kelly,  who  concluded  to  buy  the  fifty-two  feet ;  and  that 
he,  D.  T.  Kelly,  then  entered  into  the  contract  in  question.  The 
first  contract  was  informal,  and  James  T.  Kelly,  the  plaintiff,  had 
a  more  fonnal  one  prepared,  which  is  the  one  now  in  question,  and 
D.  T.  Kelly  signed  it  and  then  had  it  signed  by  Thuey.  James  T. 
Kelly  furnished  the  $50  paid  at  the  time  the  contract  was  executed. 
As  between  the  two  Kellys,  it  is  clear  that  the  property  was  pur- 
chased for  James  T. ;  but  he  had  the  contract  made  in  the  name  of 
his  brother.  The  other  evidence  does  not  show  that  Thuey  knew 
James  T.  Kelly  had  any  interest  in  the  transaction  ;  so  far  as  the 
evidence  goes,  it  would  seem  he  had  no  such  knowledge.  The  an- 
swer of  Thuey,  however,  states  that  D.  T.  Kelly  said  a  man  for 
whom  he  was  acting,  but  whose  name  he  did  not  give,  would  pur- 
chase the  property,  and  that  by  false  statements  he  induced  defend- 
ant to  agree  to  sell  the  property  to  the  party  for  whom  Kelly  was 
acting. 

We  must  take  this  verified  answer  as  an  admission  that  Thuey 
knew  D.  T.  Kelly  was  buying  the  property  for  an  unnamed  person. 
The  other  evidence  shows  that  he  was  acting  for  plaintiff,  but  this 
Thuey  did  not  know.  The  contract  was  taken  in  the  name  of  the 
agent  by  the  directions  of  the  plaintiff,  for  he  had  it  prepared.  Un- 
der these  circumstances,  can  the  plaintiff  compel  specific  perform- 
ance? 

Where,  as  here,  the  contract  is  not  imder  seal,  if  it  can  be  gath- 
ered from  the  whole  instrument  that  one  party  acted  as  agent,  the 
principal  will  be  bound,  or  he  may  sue  thereon  in  his  own  name. 
Indeed,  if  the  instrument  is  so  uncertain  in  its  terms  as  to  leave  it 
in  doubt  whether  the  principal  or  agent  is  to  be  bound,  such  uncer- 
tainty may  be  obviated  by  the  production  of  parol  evidence.  Hart- 
zell  v.  Crumb,  90  Mo.  630 ;  Klostermann  v.  Loos,  58  Mo.  290.  But 
these  principles  cannot  aid  the  plaintiff  in  this  case,  for  there  is 
nothing  whatever  on  the  face  of  this  contract  to  show  that  D.  T. 
Kelly  acted  as  agent  for  any  one. 

The  plaintiff  insists  that  a  much  more  comprehensive  doctrine 
should  be  applied,  and  he  refers  to  the  often  cited  case  of  Higgins 
V.  Senior,  8  Mees.  &  Wei.  843,  which  was  a  contract  for  the  sale 

^  A  portion  of  the  opinion  is  omitted. 


A'  that 


i     !  proof,  i 

'oi  evidence  will 

:,fr;-..i-  lii^caiise  it 

eason  c 

L  :o  his  aiiti; 

•uroval  bv  t! 

...    ;■!'._:■  Story  (•■ 

'ih  ed.),  <j  lOoa  ,   W  nan.  un  Agents,  §  40,<;  t   Spec.  Pert. 

;  18  :  riunliiji/iyn;   \-    Tr;i.)>:.  '^  r'n>h.    Vr  i  :  l  P.irfrir!p-p    f< 


n  name  only,  ti 

I'd  thereon,  may  Yrc  ..p;jli. 


the  prmcip:- 
^'^  ...•  c  cases  whet 
of  the  parties  to  V. 


ruai.     il  <:X]jrcSbcs.  jum 
ixoress.     The  plaintiff 

.ected  it  to  be  m-adc  in  ! 
11  name.    In  short,  the  c^ 

'Uv,  and  was  so  inLerde<!  . 


vidence  to  show 

:"     -i,,!    11-,-n     ^-,1\^ 


by  executing'  i:-  •  deferrc' 

s. 
\  v<  ■■  or  t,   Thue 

-    :■::.'    ■-•  ■.]]r,   mi 


-1  ■;•:■    TO!' 

f  );i :  brothe 

i.'irr.i  -    i  .  J  and  th:i 

i^:.  y'    T.    ■  .     ion.     Tb 

111  ■  tne  plaintiff,  ha 

ri  V!;   :  'n    !"<"stion,  an  : 

1).  ']'.   i  fames  'I 

'  '■""  .a>  executei; 

rty  was  pur 

(.:  in  the  name  o 

l""tt  Thuey  knc\' 

so  far  as  tb' 

li;e.    The  ai. 

.    said  a  man  fo 

.  ■  -t  give,  would  pui 

'ts  he  induced  defend 

uiy  for  whom  Kellv 

.         .    as  an  admission  that  'i 
' :   ■     .    pcrtv  for  nn  iinnamed  pi' 

plaintiff,  but  thi 

.,  ..I  the  name  of  tf- 

had  it  prepared.    Un 

-'  --•  ,-rij^r  perform 

can  be  gatb 
ere  as  ag^ent,  tb 

j.rinciir  s  own  name 

'•<-■"'■' '  '  as  to  leave  [' 

:,  such  uncer 
lence.     Har\ 
lO.  290.     Br' 
for  there  i- 
A'  that  D.  1 

ichensive  doctrin 
should  be  applied,  a-.  ■    ■.ited  case  of  Higgii- 

>         ~,-Ti;,  ,r       y      Vr,-  ,'.c  .,-.■^tr■^rt     tr.i-     rV,,--     <a' 


LIABILITY    PRINCIPAL    TO    THIRD    PARTY.  473 

of  goods.  The  question  presented  there  was  whether  the  defend- 
ant could  discharge  himself  by  proviog  that  the  agreement,  though 
made  in  his  own  name,  was  really  made  by  him  as  the  agent  of  a 
third  person,  and  this  was  known  to  the  plaintiff  when  the  contract 
was  signed.  "There  is  no  doubt,"  says  the  court,  "that  where  such 
an  agreement  is  made,  it  is  competent  to  show  that  one  or  both  of 
the  contracting  parties  w'ere  agents  for  other  persons,  and  acted 
as  such  agents  in  making  the  contract  so  as  to  give  the  benefit  of 
the  contract  on  the  one  hand  to,  and  charge  with  liability  on  the 
other  the  unnamed  principal ;  and  this,  whether  the  agreement  be 
or  be  not  required  to  be  in  writing  by  the  statute  of  frauds." 

Such  proof,  it  is  said,  does  not  violate  the  rule  of  law,  which  says, 
parol  evidence  will  not  be  received  to  vary  the  terms  of  a  written 
contract  because  it  only  shows  that  the  agreement  binds  another 
person  by  reason  of  the  act  of  the  agent  in  signing  the  agreement 
pursuant  to  his  authority.  The  doctrine  of  that  case  has  been  quoted 
with  approval  by  this  court  on  two  occasions.  Briggs  v.  Munchon, 
56  Mo.  467 ;  Higgins  v.  Bellinger,  22  Mo.  397.  The  following  and 
many  other  authorities  are  to  the  same  effect :  Story  on  /\gency 
(9th  ed.),  §  i6oa  ;  Whart.  on  Agents,  §403;  Fry  on  Spec.  Perf., 
§  148;  Huntington  v.  Knox,  7  Cush.  371;  Briggs  v.  Partridge,  64 
N.  Y.  357. 

This  broad  doctrine,  that,  when  an  agent  makes  a  contract  in  his 
own  name  only,  the  known  or  unknown  principal  may  sue  or  be 
sued  thereon,  may  be  applied  in  many  cases  with  safety,  and  espe- 
cially in  cases  of  informal  commercial  contracts.  But  it  is  certain 
that  it  cannot  be  applied  where  exclusive  credit  is  given  to  the  agent, 
and  it  is  intended  by  both  parties  that  no  resort  shall  be  had  by  or 
against  the  principal  (Story  on  Agency,  §  i6oa),  nor  does  it  apply 
to  those  cases  where  skill,^  solvency  or  any  personal  quality  of  one 
of  the  parties  to  the  contract  is  a  material  ingredient  in  it.  Fry 
on  Spec.  Perf.,  §  149. 

Now,  in  this  case,  the  written  contract  is  full,  complete  and  for- 
mal. It  expresses  just  what  the  parties  thereto  intended  it  should 
express.  The  plaintiff  had  it  prepared,  and  must  be  taken  to  have 
directed  it  to  be  made  in  the  name  of  D.  T.  Kelly  and  not  in  his 
own  name.  In  short,  the  contract  is  one  between  Thuey  and  D.  T. 
Kelly,  and  was  so  intended  by  all  parties.  It  contains  agreements  to 
be  performed  by  both  parties.  Thuey  agreed  to  sell  the  land  to 
D.  T.  Kelly  and  agreed  to  take  the  latter's  notes  and  deed  of  trust 
for  the  deferred  payments.  He  did  not  agree  to  take  the  notes  and 
deed  of  trust  of  the  plaintiff  for  the  deferred  payments.  To  admit 
parol  evidence  to  show  that  D.  T.  Kelly  acted  as  an  agent  of  the 
plaintiff,  and  then  substitute,  or  add,  the  plaintiff  as  a  party,  is  sim- 

"  Regarding  the  right  of  a  client  to  the  personal  services  of  an  attorney  re- 
tained by  him  see  Eggleston  v.  Boardman,  t,"]  Mich.  14,  19. 


II 


474  UNDISCLOSED    PRINCIPAL. 

ply  to  make  a  new  contract  for  the  parties.  To  say  that  the  admis- 
sion of  such  evidence  does  not  alter  the  written  contract,  in  a  case 
like  the  one  in  hand,  is  a  doctrine  too  subtle  and  refined  to  be  com- 
prehended. D.  T.  Kelly  contracted  for  the  warranty  deed  of  Thuey, 
and  he  is  entitled  to  Thuey's  covenant  of  warranty,  and  could  not 
be  required  to  take  the  covenants  of  some  person  to  whom  Thuey 
should  sell  the  property.   Steiner  v.  Zwickey,  43  N.  W.  376. 

So,  on  the  other  hand,  Thuey  contracted  for.  and  is  entitled  to 
have,  the  notes  and  deed  of  trust  of  D.  T.  Kelly,  and  he  cannot  be 
compelled  to  take  the  notes  of  another  person.  Whatever  the  rights 
may  be  as  between  the  Kellys,  the  plaintiff  is  not  a  party  to  the  con- 
tract with  Thuey,  and  he  cannot  enforce  specific  performance  of  it 
and  thereby  compel  Thuey  to  accept  his  obligations  for  the  deferred 
payments. 

The  right  to  enforce  specific  performance  of  this  contract  exists 
in  D.  T.  Kelly  and  not  the  plaintiff.  D.  T.  Kelly  must  make  the  note 
and  deed  of  trust,  and  to  that  end  the  title  must  be  vested  in  him, 
and  he  is,  therefore,  a  necessary  and  indispensable  party  to  this  suit. 
The  judgment  is,  therefore,   reversed  and  the  cause  remanded. 

All  concur. 


WATTE AU  V.  FENWTCK. 
1892.     Queen's  Bench  Division.     L.  R.    (1893)    O.  B.  D.  346. 

Appeal  from  the  decision  of  the  county  court  judge  of  Middles- 
borough. 

From  the  evidence  it  appeared  that  one  Humble  had  carried  on 
business  at  a  beerhouse  called  the  Victoria  Hotel,  at  Stockton-on- 
Tees,  which  business  he  had  transferred  to  the  defendants,  a  firm 
of  brewers,  some  years  before  the  present  action.  After  the  trans- 
fer of  the  business,  Humble  remained  as  defendants'  manager ;  but 
the  license  was  always  taken  out  in  Humble's  name,  and  his  name 
was  painted  over  the  door.  Under  the  terms  of  the  agreement  made 
between  Humble  and  the  defendants  the  former  had  no  authority 
to  buy  any  goods  for  the  business  except  bottled  ales  and  mineral 
waters ;  all  other  goods  required  were  to  be  supplied  by  the  defend- 
ants themselves.  The  action  was  brought  to  recover  the  price  of 
goods  delivered  at  the  Victoria  Hotel  over  some  3'ears,  for  which 
it  was  admitted  that  the  plaintiff  gave  credit  to  Humble  only ;  they 
consisted  of  cigars,  bovril,  and  other  articles.  The  learned  judge 
allowed  the  claim  for  the  cigars  and  bovril  only,  and  gave  judginent 
for  the  plaintiff  for  22/  12s  6d.    The  defendants  appealed. 

WiLLS_,  J. — The  plaintiff  sues  the  defendants  for  the  price  of 
cigars  supplied  to  the  Victoria  Hotel,  Stockton-upon-Tees.  The 
house  was  kept,  not  by  the  defendants,  but  by  a  person  named  Hum- 


LIABILl  : 


475 


hn^e  name  was  ovt.  redit  to 

and  to  him  alon-  'ndants. 

ess.  however,  wr  '^  put 

ri  it  to  mana;^e  i;  buv 

Ht.     The     • 
y  and  d': 
art  judg-e  I' 
>.at  he  was  n,. 
There  seems  to  be  less  of 
die  would  expect.     But  I  thi: 
the  argument  laid  down  the  < 
'  that  the  defendant 
as  to  principal  and 
A  the  acts  of  the 
led  to  an  agent  i 
s  h>etween  the  principal  and  /  ;  upon  that  :>.. 

■ 'd  that  it  is  onJy  so  wh'^'>^  ' '  — :  a  holding  oiu  _ . 

which  cannot  be  sai  where  the  person  su 

-  knew  nothing  of  tliu  -.MMmc  of  a  principal.  But  I  ii^j  h'jl 
so.  Otherwise,  in  every  case  of  undisclosed  principal,  or  at 
every  case  where  the  fact  of  .there  being-  a  principal  was  un- 
sed,  the  secret  limitation  of  authority  would  prevail  and  de- 
:he  action  of  the  person  dealing  with  the  agent  and  then  dis- 
ing  that  he  was  an  agent  and  had  a  principal. 
t  in  the  case  of  a  dormant  partner  it  is  clear  law  that  no  lim- 
ii  of  authority  as  between  the  '  •  ■'*  -nd  active  part;-  -  ■•■"^ 
the  dormant  partner  as  to  i  rhe  ordinan 

a  partner.    The  law  '  ' 

at  a  branch  of  the  l 
rs  to  me  to  be  undisputed  and  coi 
iscussion. 

e  principle  laid  down  by  ' ' 
0  learned  county  conn  ' 
•  iated  in  the  judgmc 
'  .  v.  Bushell  (i), 
xal  with  those 
.s  no  holding  ou: 
I  appreciate  the 
-,  but  the  principle  Iff  to, 

;,  abund?--'''    '■  ^■'•'•-  iittt 

'  has  e  \  i; 

ind  that   v^•r^    ni'.-v;'  den   re- 

it  principle  were  not 

this  api"  .^ts. 

d.i 


UNDISCLOSED    PKI 


j<€  a  new  contract  for  the  parties, 
ich  evidence  does  not  alter  &■• 
lie  in  hand,  is  a  doctrine  too 
■  ided.    D.  T.  Kelly  contracted  for  tli«- 
i-e  is  entitled  to  lliuey's  covenant  of 
be  required  to  take  the  covenants  of  soni< 
-I'  "Id  sell  the  property.   Steiner  v.  Zwickc; 
.  on  the  other  hand,  Thuey  contract'. 
i!  ive,  the  notes  and  deed  of  tnist  of  D.  T.  i 
compelled  to  take  the  notes  of  another  person 
may  be  as  between  the  Kellys,  the  plaintiff  ' 
tract  with  Thuey,  and  he  cannot  enforce 
and  thereby  compel  Thuey  to  accept  hi 
payments. 

The  right  to  enforce  specific  perfor 
in  D.  T.  Kelly  and  not  the  plaintiff.  D. 
and  deed  of  trust,  and  to  that  end  tht 
and  he  is,  therefore,  a  : 
The   JTidcfment  is,  th- 


that  the  admis- 

'  t,  in  a  case 

lo  be  com- 

dccd  of  Thuey, 

ind  could  not 

hom  Thuey 

id  is  entitled  to 

;_v,  iuid  he  cannot  be 

Whatever  the  rights 

-   \  to  the  con- 

inance  6i  it 

llie  deferred 

contract  exists 

t  make  the  note 

vested  in  him, 

V  to  this  suit. 

remanded. 


ihc  couniy  court  judge  ot  Middles- 


From  tne  cvid' 

busine><s  at  n  ^vn  , 

Tees,   \\-liicl'i  ■ 

-fen 

of  brewers,  - 

ii^L-  pre 

ier  of  the  bu 

mained 

the  license  w 

i\:;'-  ri3.inted    • 

en  Humble 

y  any  gocxis 
rs ;  all  other  : 

•'■■"nselves. 

^        'ivered  ;  i 

■  a'd  thai 

'igars,  I. 
'dm  for 

,lt  for  2^. 

v\  li.i.::.   J. — The   plamt: 

cigars   sr.pplied   to  the 

\ 

Imhi'-'c  \\.'\.;  ''(.'pL,  not  by 

the 

Humble  had  carried  on 

a  Hotel,  at  Stockton-on- 

-ferred  to  the  defendants,  a  firm 

•^'    -  •  ^n.    After  the  trans- 

tants'  manager;  but 

.ame,  and  his  name 

the  rt^^aeement  made 

-.0  authority 

and  mineral 

the  defend- 

.,    the  price  of 

.^ars,  for  which 

'  iiunble  only  ;  they 

The  learned  judge 

•>e  judgment 

,  ^  _.  ...  a.  .. 

lefendants   for   the  price   of 

'^"^ioi  lfon-u}K)n-T€es.    'The 

oerson  named  Hum- 


LIABILITY    PRINCIPAL    TO    THIRD    PARTY.  475 

ble,  whose  name  was  over  the  door.  The  plaintiff  gave  credit  to 
Humble,  and  to  him  alone,  and  had  never  heard  of  the  defendants. 
The  business,  however,  was  really  the  defendants',  and  they  had  put 
Humble  in  it  to  manage  it  for  them,  and  had  forbidden  him  to  buy 
cigars  on  credit.  The  cigars,  however,  were  such  as  would  usually 
be  supplied  to  and  dealt  in  at  such  an  establishment.  The  learned 
county  court  judge  held  that  the  defendants  were  liable.  I  am  of 
opinion  that  he  was  right. 

There  seems  to  be  less  of  direct  authority  on  the  subject  than 
one  would  expect.  But  I  think  that  the  Lord  Chief  Justice  during 
the  argument  laid  down  the  correct  principle,  viz.,  once  it  is  estab- 
lished that  the  defendant  was  the  real  principal,  the  ordinary  doc- 
trine as  to  principal  and  agent  applies — that  the  principal  is  liable 
for  all  the  acts  of  the  agent  which  are  within  the  authority  usually 
confided  tO'  an  agent  of  that  character,  notwithstanding  limitations, 
as  between  the  principal  and  the  agent,  put  upon  that  authority.  It 
is  said  that  it  is  only  so  where  there  has  been  a  holding  out  of  author- 
ity— which  cannot  be  said  of  a  case  where  the  person  supplying 
goods  knew  nothing  of  the  existence  of  a  principal.  But  I  do  not 
think  so.  Otherwise,  in  every  case  of  undisclosed  principal,  or  at 
least  every  case  where  the  fact  of  there  being  a  principal  was  un- 
disclosed, the  secret  limitation  of  authority  would  prevail  and  de- 
feat the  action  of  the  person  dealing  with  the  agent  and  then  dis- 
covering that  he  was  an  agent  and  had  a  principal. 

But  in  the  case  of  a  dormant  partner  it  is  clear  law  that  no  lim- 
itation of  authority  as  between  the  dormant  and  active  partner  will 
avail  the  dormant  partner  as  to  things  within  the  ordinary  author- 
ity of  a  partner.  The  law  of  partnership  is,  on  such  a  question,  noth- 
ing but  a  branch  of  the  general  law  of  principal  and  agent,  and  it 
appears  to  me  to  be  undisputed  and  conclusive  on  the  point  now  un- 
der discussion. 

The  principle  laid  down  by  the  Lord  Chief  Justice,  and  acted  upon 
by  the  learned  county  court  judge,  appears  to  be  identical  with  that 
enunciated  in  the  judgments  of  Cockburn,  C.  J.,  and  Mellor,  J.,  in 
Edmunds  v.  Bushell  (i),  the  circumstances  of  which  case,  though 
not  identical  with  those  of  the  present,  come  very  near  to  them. 
There  was  no  holding  out,  as  the  plaintiff  knew  nothing  of  the  de- 
fendant. I  appreciate  the  distinction  drawn  by  Air.  Finlay  in  his 
argument,  but  the  principle  laid  down  in  the  judgments  referred  to, 
if  correct,  abundantly  covers  the  present  case.  I  cannot  find  that 
any  doubt  has  ever  been  expressed  that  it  is  correct,  and  I  think  it 
is  right,  and  that  very  mischievous  consequences  would  often  re- 
sult if  that  principle  were  not  upheld. 

In  my  opinion  this  appeal  ought  to  be  dismissed  with  costs. 

Appeal  dismissed.^ 

^  See  discussion  of  the  principal  case  in  7  Harv.  Law  Rev.  49. 
Compare  Schendel  v.  Stevenson,  153  Mass.  351. 


476  UNDISCLOSED    PRINCIPAL. 

BROOKS  V.  SHAW. 
1908.   Supreme  Judicial  Court  of  Massachusetts.    197  Mass.  376. 

Contract  or  tort  to  recover  the  value  of  goods  of  the  plaintiff 
alleged  to  have  been  lost  by  the  defendants  who,  being  engaged  in 
business  under  the  name  of  "Sawin's  Express,"  accepted  them  for 
transportation  to  the  plaintiff.  Writ  in  the  municipal  court  of  the 
city  of  Boston  dated  April  9,  1906. 

RuGG,  J. — ^  *  *  *  The  trial  judge  found  that  for  a  period  of 
many  years  prior  to  September  i,  1904,  one  M.  M.  Sawin  carried  on 
an  express  business  between  Boston  and  Cambridge  under  the  name 
of  "Sawin's  Express,"  and  that  Herbert  E.  Sawin  was  assistant 
manager.  The  defendants  acquired  the  business  in  September,  1904, 
and  continued  to  carry  it  on  under  the  name  of  "Sawin's  Express" 
in  the  same  manner  in  which  it  had  been  carried  on  theretofore 
without  change  in  the  name,  lettering  on  wagons,  or  billheads,  and 
Herbert  E.  Sawin  was  continued  as  the  agent  at  Cambridge  in  charge 
of  the  business.  In  November,  1905,  a  dress  belonging  to  the  plain- 
tiff was  lost  while  being  transported  by  Sawin's  Express  from 
Boston  to  Cambridge,  it  having  been  received  from  the  consignor 
on  a  contract  limiting  liability  in  case  of  loss  to  $50.  The  defend- 
ants were  unable  to  find  the  package,  and  Herbert  E.  Sawin  in  a 
conversation  with  an  agent  of  the  plaintiff  said,  in  substance,  that 
he  preferred,  rather  than  to  pay  for  the  one  that  was  lost,  that  the 
plaintiff  should  get  a  new  dress  and  that  he  would  settle  for  it.  At 
the  time  of  this  conversation  neither  the  plaintiff  nor  her  agent  had 
any  knowledge  of  the  transfer  of  Sawin's  Express  to  the  defend- 
ants, but  believed  that  it  was  being  carried  on  by  the  same  persons 
as  before  the  sale.  Herbert  E.  Sawin  disclosed  no  agency,  and  pur- 
ported to  act  as  principal,  but  in  fact  had  no  authority  to  bind  the 
defendants  by  the  proposition  made.  His  instructions  being  to  refer 
all  claims  in  excess  of  $3  to  the  Boston  office.  No  notice  of  this 
limitation  of  authority  was  brought  home  to  the  plaintiff  or  her 
agent.  The  judge  further  found  that  Herbert  E.  Sawin  in  dealing 
with  the  plaintiff  and  her  agent  was  in  fact  agent  for  the  defend- 
ants, who  were  undisclosed  principals,  and  ruled  that  the  plaintiff 
had  a  right  of  action  against  the  defendants,  and  that  they  could 
not  set  up  the  limitation  which  they  had  imposed  upon  the  authority 
of  Sawin  and  found  for  the  plaintiff.  The  judge  also  refused  to 
rule  that  if  at  the  time  of  the  promise  the  plaintiff  and  her  agent 
supposed  that  M.  M.  Sawin  was  the  owner  of  the  Sawin's  Express, 
and  did  not  know  or  understand  that  Herbert  E.  Sawin  was  acting 
for  the  defendants,  then  the  plaintiff  was  bound  by  the  actual 
authority  of  Herbert  E.  Sawin.     The  defendants'  exception  to  the 

^A  portion  of  the  opinion  is  omitted. 


LiAnii.i 


47; 


give  this  rr  nally  made 

'lings  tile  case  ucfore  u?. 
'['lie  defendants  held  out  ns- 

eir  business  in  Caml  r  'tie 

^  not  exceeding  $3.  '■- 

lay  be  charged  with  and  ava 

■1  of  the  acts  of  his  agci;i.  ■:-,  ^>  ''■  ■   m-i;  ■. . 

lass.  169..    It  follows  from  thi  'elation 

.■^i'di  and  agent  is  found  to  exist,  the 
^v  of  the  principal  to  third  pef^on?   ' 
^shed.     The  principal  is 
...a:  the  apparent  scope  of  ' 
Jr.  Justice  Holmes  in  5  Harvard  Law  Review, 
imistances  known  to  him,  the  ol>vious  consequv..!..-^  ■■ 
i.d's  own  conduct  in  employing  the  agent  is  that  the  |)^ 
'  him  to  have  given  the  ag<  «wers,  he  gives  it 

powers.     *     *     *     ^ii^  isible  powers    (ai^ 

)Owers.''  Limitations  as  IxLuccn  principal  and  agent  of  a.i 
ently  general  authority,  not  brought  to  the  knowledge  of  third 
ns,  do  not  affect  the  rights  of  the  latter.  One  of  the  usual  inci- 
..i.->  of  carrying  on  business  is  to  settle  the  losses  that  occur  in  con- 
icction  with  that  business.  By  an  arrangement  between  the  defend- 
and  Herbert  E.  Sawin.  the  agent's  authority  as  to  losses  was 
d  to  $3,  but  his  ostensible  power=  ^^ve  no  notice  of  any  lim- 
n  upon  the  extent  of  his  autl  this  respect.     Therefore 

i  laintiff  was  not  bound  by  it.  .\i  v.  Fenwick  CtSo:^)    i 

>.  H.  346:  Edmunds  v.  Bushell,  L  "■.  97;  S]  ss. 

■\.  R.  5,  Q.  B.  656;  Irvine  -  '^v-,,  r.    1 ,  1 

Exceptions  overruled." 


thoma: 


SuPREJr 


lit,  j. — This  suit  was  br 
t.     The  complaint  states, 
ice  twenty   thousand,   eight 
......  walnut  lumber,  for  which  aj 

)ay  at  the  rate  of  thirty-three  doll;; 

Hubbard  v.  Tenbrook,  124  ; 

■:-wi  •    "TV..^  rule  so  v'C"'-' 
with  an 


ap- 

rhe 

of 

-  d  to 

t  three 

:hat  case 
aintiff  in 
nthority. 
rule  that 
:cs  dealing  on 


47* 


.\  UIM.  LU,^ 


]jROOK: 


1908.  Supreme  Judicial  Court 


Contract  or 
alleged  to  have 
business  under 
transportation  ti»  lli 
city  of  Bostr-i   -'latc 

R(JGG,  J. 

many  year?  1 
an  express  ' 
of    ■         ■ 
ma 

ail''- 

in. 

wit' 


nit  aei 
"Sawin  - 
f.  Writ 
>,  1906. 
trial  jii 
r  I,  19'- 
fioston  ; 


ported  to  a. 
defendants  ' 
all  claims  ; 
limitation  <.■ 
agent,    Tlic 

:io  wer«* 
J  I....   c;  right  of  . 
noi  set  up  the  li.i 
of  Sawin  and  font; 
rule  that  if  at  the  t 
iUfjfxii^ed  that  M.  ]\' 
and  liid  not  know  O' 
for  the   defendants, 
authority  of  Herber. 

''  A  portion  of  the  opinior 


'  97  Mass.  37< 

f  the  plaintii 

.  p.  gaged  i.i 

-    -  them  f«. 

ia  liie  inuuiui>^l  court  of  th 

•I  that  for  a  period  < 
"■'.  Sawin  carried  o' 
,-;•  under  the  nam 
''■:'.    ■fni.ji.    r..    -awin  was  assistai 
le  business  in  September,  190^; 
uiidcr  the  v.  Sawin's  Expres:- 

;ch   it  had  h-  d   on  theretofore 

or  billheads,  aii' 
'.nbridge  in  charp 
iging  to  the  plaii' 
:i!i5^    n.M  -,  1-. ill's    Express    fro'^ 

it  having  s   d  from  the  consigm 

■    •  ■■  ioss  to  $50.     The  defen'' 

xid  lierbert  E.  Sawin  in 
•I'  tiic  jjlaintiff  said,  in  substance,  th. 
•;n   for  the  one  that  was  lost,  that  tl 
ind  that  he  would  settle  for  it.    A 
.ivuher  the  plaintiff  nor  her  agent  ha 
fer  of  Sawin's  Express  to  the  defen(' 
'    "  '1  by  the  same  person 

1  no  agency,  and  pu' 
iaci  iiad  no  authority  to  bind  tli , 
■\c.    His  instructions  being  to  ref< 
-ton  office.     No  notice  of  th^ 
i.r.i;,.-  t  >  the  plaintiff  or  h'.; 
Sawin  in  dealin 
I  for  th«  defen; ; 
that  the  plainti; 
.uid  that  they  coul' 
■ed  upon  the  authorit . 
■  also  refused  1 
liff  and  her  age:- 
the  Sawin's  Expres; 
E.  Sawiii  was  actin;: 
Ijound   by   the   actua 
ciidants'  exception  to  the 


LIABILITY    PRINCIPAL    TO    THIRD    PARTY.  477 

judge's  refusal  to  give  this  ruling  and  to  the  ruling  actually  made 
brings  the  case  before  us. 

The  defendants  held  out  Herbert  E.  Sawin  as  their  agent  to  trans- 
act their  business  in  Cambridge.  He  had  express  authority  to  settle 
claims  not  exceeding  $3.  The  doctrine  that  an  undisclosed  princi- 
pal may  be  charged  with  responsibility  for  and  avail  himself  of  the 
benefit  of  the  acts  of  his  agent  is  well  settled.  Byington  v.  Simpson, 
134  Mass.  169.  It  follows  from  this,  that,  when  the  relation  of  prin- 
cipal and  agent  is  found  to  exist,  the  ordinary  rules  of  responsibil- 
ity of  the  principal  to  third  persons  for  the  act  of  his  agent  are 
established.  The  principal  is  responsible  for  all  acts  of  the  agent 
within  the  apparent  scope  of  his  authority,  or,  to  use  the  phrase  of 
Mr.  Justice  Holmes  in  5  Harvard  Law  Review,  i,  "If,  under  the  cir- 
cumstances known  to  him,  the  obvious  consequences  of  the  princi- 
pal's own  conduct  in  employing  the  agent  is  that  the  public  under- 
stand him  to  have  given  the  agent  certain  powers,  he  gives  the  agent 
those  powers.  *  *  *  An  agent's  ostensible  powers  (are)  his 
real  powers.''  Limitations  as  between  principal  and  agent  of  an 
apparently  general  authority,  not  brought  to  the  knowledge  of  third 
persons,  do  not  affect  the  rights  of  the  latter.  One  of  the  usual  inci- 
dents of  carrying  on  business  is  to  settle  the  losses  that  occur  in  con- 
nection with  that  business.  By  an  arrangement  between  the  defend- 
ants and  Herbert  E.  Sawin,  the  agent's  authority  as  to  losses  was 
limited  to  $3,  but  his  ostensible  powers  gave  no  notice  of  any  lim- 
itation upon  the  extent  of  his  authority  in  this  respect.  Therefore 
the  plaintiff  was  not  bound  by  it.  Watteau  v.  Fenwick  (1893)  i 
O.  B.  346 ;  Edmunds  v.  Bushell,  L.  R.  i  Q.  B.  97 ;  Spurr  v.  Cass, 
L.  R.  5,  O.  B.  656;  Irvine  v.  Watson,  5  Q.'^B.  D.  414. 

Exceptions  overruled. - 


THOMAS  V.  ATKINSON. 

1871.     Supreme  Court  of  Indiana.     38  Ind.   248. 

Pettit,  J. — This  suit  was  brought  by  the  appellee  against  the  ap- 
pellant. The  complaint  states,  that  the  appellant  purchased  of  the 
appellee  twenty  thousand,  eight  hundred  and  sixty-four  feet  of 
black-walnut  lumber,  for  which  appellant  agreed  and  promised  to 
pay  at  the  rate  of  thirty-three  dollars  per  thousand  feet ;  that  three 

^Accord:  Hubbard  v.  Tenbrook,  124  Pa.  St.  291.  On  page  296  of  that  case 
Mitchell,  J.,  said :  "The  rule  so  vigorously  contended  for  by  the  plaintiff  in 
error,  that  those  dealing  with  an  agent  are  bound  to  look  to  his  authority, 
is  freely  conceded,  but  this  case  falls  within  the  equally  established  rule  that 
those  clothing  an  agent  with  apparent  authority  are,  as  to  parties  dealing  on 
the  faith  of  such  authority,  conclusively  estopped  from  denying  it." 


4/8  UNDISCLOSED    PRINCIPAL. 

hundred  and  eig-hty  dollars  had  been  paid,  leaving  due  and  unpaid 
three  hundred  and  fifty  dollars,  for  which  judgment  was  demanded. 

Answer,  first,  general  denial ;  second,  payment.  Reply  of  gen- 
eral denial  to  second  paragraph  of  the  answer.  Trial  by  the  court; 
finding  for  the  plaintiff,  appellee,  in  the  sum  of  three  hundred  and 
eight  dollars  and  thirty-seven  cents. 

Motion  for  a  new  trial,  for  the  following  reasons : 

First.     The  finding  is  contrary  to  law. 

Second.     The  finding  of  the  court  is  contrary  to  the  evidence. 

Third.  The  finding  of  the  court  is  not  sustained  by  sufficient 
evidence. 

Fourth.  For  error  of  law  occurring  at  the  trial,  and  excepted  to 
by  the  defendant  at  the  time,  in  this,  to  wit :  first,  the  court  allowed 
improper  evidence  over  the  objection  pointed  out  at  the  time  to  the 
court;  second,  the  court  rejected  proper  evidence  offered  by  the  de- 
fendant ;  third,  the  court  refused  to  receive  material  and  proper  evi- 
dence offered  by  the  defendant. 

This  motion  was  overruled;  exception;  and  judgment  on  the 
finding  was  rendered. 

The  whole  evidence  given,  offered,  and  refused,  is  as  follows. 
For  plaintiff : 

Josephus  Atkinson,  the  plaintiff,  testified  that  some  time  during 
the  latter  part  of  November,  1868,  one  William  H.  Munday  came 
to  him  and  stated  that  he  wished  to  buy  some  walnut  lumber,  and 
would  pay  the  plaintiff  thirty-three  dollars  per  thousand  feet;  that 
he  accepted  the  offer,  and  agreed  to  deHver  the  lumber  to  Munday 
at  the  railroad ;  that  he  did  not  know  the  defendant  at  that  time ; 
that  Munday  advanced  him  one  hundred  dollars  on  the  lumber ;  that 
in  accordance  with  his  contract  with  Munday  he  afterward  de- 
livered to  Munday  twenty  thousand  eight  hundred  and  sixty- 
four  feet,  for  which  Munday  had  paid  him  in  all  three 
hundred  and  eighty  dollars,  leaving  a  balance  due  of  three 
hundred  and  eight  dollars ;  that  soon  after  the  lumber  had 
been  delivered  at  the  railroad,  he  met  the  defendant,  told  him  the 
bargain  he  had  made  with  Munday,  and  requested  the  defendant 
to  tell  Munday  when  he  should  see  him  that  the  lumber  was  there, 
which  the  defendant  agreed  to  do ;  that  in  a  few  days  Munday  went 
and  measured  the  lumber  and  shipped  it  to  the  defendant  at  Toledo, 
Ohio ;  that  Munday  then  told  the  plaintiff  to  go  to  Delphi,  and  he 
would  pay  him  for  the  lumber,  but  it  was  agreed  that  Munday 
should  send  the  money  by  express  in  a  day  or  two;  that  about  the 
middle  of  May,  1869,  Munday  having  failed  to  send  the  money  as 
he  agreed  to  do,  the  plaintiff  went  to  Delphi  to  know  the  reason  of 
Munday's  failure  to  send  the  money ;  that  previous  to  going  he  had 
received  a  letter  from  Munday,  stating  that  the  defendant  had  not 
paid  him,  Munday,  for  the  lumber ;  that  while  at  Delphi  the  plain- 
tiff met  the  defendant  and  stated  to  him  that  Munday  had  written, 


Out    Oi 

i  iant,  he  ' 
ins  pa}'',  because  it 
..ame;  and  that  i^' ■   '^ 
int  in  Delphi,  \\\ 
lay  in  full  for  the  :'i 
•   cross-examination 
■d  with  Munday 
iefendant;  that  Iv 
-cause  he  then  had  : 
long  time ;  that  he  \ 
imber;  that  the  def.: 
>r  the  lumber;  that 
Say,  he  told  the  defei 
imber,  the  defei'  ' 
ware  that  the  dc; 


^feridai 


itiflf  lest 


or  prom: 
g-et  his  puj 
him  respon -. 
liable;  that  he 

:d  Munday  as  h 


id  that  he  had  made  no  mqmnes  on  tiiat  point  of  any  one ;  that 
if.  r  'm-  had  failed  to  get  the  balance    ^i<-  him  from  Munday,  he  had 
a  letter,  dated  June  7,  1^  e  defendant,  stating  that 

r  \s.Liiccd  his  money,  and  that  the  u-  ^  :  i.nt,  as  an  honorable  man, 
ught  to  see  that  he  got  his  pav :  in  answer  to  which  the  defendant 
maintained  that  he  was  n.  ■  ' 

George  W.  Hubbard  i- 
id  met  the  defendant  ii- 
tfendant  stated  that  he 
j.mber,  but  he  did  not  sta 
or  it. 
David  E.  Emely  testifie 
Alunday  went  t'>  ; 

•it  tolfl  i^,Iunda\    '.  .,  >c 

\  Ohio,  ^  re- 

r  told  Ml   .  .  ,[- 

r  the  lumber  was  measir. 
William  M.  ^[undn-  -- 
:•  told  the  defcndani 

■,  ould  advanc'.  _  la 

'ced  him,  M  :  .-.vs  ; 

:  as  the  ,  of 

■  ;  that  h:  !ol- 

;  that  when  the  1  at  the 

'■'■  'i--r.-'..i'.nt  I,.-  ...,^j  he,  the 

-ured  it  and 


is  never  the 


'lar 


M>!SCLO'>En   PRINCTPAl.. 


.  and  eig]:._    

hundred  and  fifty  d' 
.swer,  first,  genc"' 
Jeniai  to  second 

'  ^r  the  p: 

irs  and 

Mutiun  for  a  r 

The  Hi' 


Plrst. 

Second 

Third, 
evidence 

Fourti^ 
hv  tlie  ('• 


This 

findin:- 


Ti 


Mi     i) 

livered    •. 
tour    fev 
hundred 
hundred 
been  delt 


;  mat  iViuno 
■'   ''Hy  him  i ., 
!id  the  mon- 

■):u,  lie  !.f  May,  1869. 

he  agreed  to  do,  the  1 

Munday's  failure  to  ? 

i"e'^^iv'?d  rt  Ipt^T  fror 


;  unpaid 

aanded. 

^>ij    of  gen- 

y  the  court ; 

Mindred  and 


■  V  to  the  evidence. 

. :!-.i;,i,-'-i  v.\-  ci-.-fiT.-ient 

'  ■  ■.;;i,  aiui  cxcqaed  to 

t    the  court  allowed 

time  to  the 

'!  by  the  de- 

'  proper  evi- 

dgment  on  the 

!,  is  as  follows. 

'f^ed  that  some  time  during 

n  H.  Munday  came 

,_  walnut  lumber,  and 

per  thousand  feet;  that 

the  lumber  to  Munday 

defendant  at  that  time ; 

-  on  the  lumber;  that 

-   he  afterward   de- 

tred    and    sixty- 

1     in     all     three 

'    due    of    three 

lie    lumber    had 

tn,  told  him  the 

*'ie  defendant 

j-  was  there, 

!  unday  went 

■  t  at  Toledo, 

iJetphi,  and  he 

I  that  Munday 

;  that  about  the 

:  J  the  money  as 

w  the  reason  of 


LIABILITY    PRINCIPAL   TO    THIRD    PARTY.  479 

and  the  defendant  said  it  was  not  true,  as  he  had  paid  Munday  in 
full  for  the  hnnber;  when  the  plaintiff  went  to  see  Munday,  but 
could  get  nothing  out  of  him  for  the  lumber ;  that  the  next  time 
he  met  the  defendant,  he  told  the  defendant  that  he  should  look  to 
him  for  his  pay,  because  it  was  measured,  marked,  and  shipped 
in  his  name ;  and  that  this  was  several  days  after  he  met  the  de- 
fendant in  Delphi,  when  the  defendant  told  him  that  he  had  paid 
Munday  in  full  for  the  lumber. 

On  cross-examination,  the  plaintiff  testified  that  when  he  con- 
tracted with  Munday  for  the  sale  of  the  lumber,  he  did  not  know 
the  defendant;  that  his  contract  with  Munday  was  not  in  writing, 
because  he  then  had  great  confidence  in  him,  as  he  had  known  him 
a  long  time ;  that  he  made  no  charge  against  the  defendant  for  the 
lumber;  that  the  defendant  never  agreed  or  promised  to  pay  him 
for  the  lumber ;  that  when,  after  failing  to  get  his  pay  from  Mun- 
day, he  told  the  defendant  he  should  hold  him  responsible  for  the 
lumber,  the  defendant  denied  that  he  was  liable ;  that  he  was  not 
aware  that  the  defendant  had  ever  recognized  Munday  as  his  agent, 
and  that  he  had  made  no  inquiries  on  that  point  of  any  one;  that 
after  he  had  failed  to  get  the  balance  due  him  from  Munday,  he  had 
addressed  a  letter,  dated  June  7,  1869,  to  the  defendant,  stating  that 
he  wanted  his  money,  and  that  the  defendant,  as  an  honorable  man, 
ought  to  see  that  he  got  his  pay ;  in  answer  to  which  the  defendant 
maintained  that  he  was  not  indebted  to  him. 

George  W.  Hubbard  testified  that  he  was  in  the  lumber  trade, 
and  met  the  defendant  in  the  winter  of  1868  and  1869,  when  the 
defendant  stated  that  he  was  to  get  from  Munday  the  plaintiff's 
lumber,  but  he  did  not  state  how,  or  with  whom  he  had  contracted 
for  it. 

David  E.  Erhely  testified  that  he  was  in  Rockfield  the  morning 
that  Munday  went  to  measure  the  lumber  in  question,  when  the  de- 
fendant told  Munday  to  go  and  measure  the  lumber  and  ship  it  to 
him  at  Toledo,  Ohio,  and  he  would  take  it  at  Munday's  measure- 
ment, and  also  told  Munday  to  tell  the  plaintiff  to  go  to  Delphi,  af- 
ter the  lumber  was  measured,  and  get  his  pay  from  Munday. 

William  M.  Munday  testified  that  some  time  in  November,  1868, 
he  told  the  defendant  he  could  buy  the  plaintiff's  lumber  if  the  de- 
fendant would  advance  him,  Munday,  money  on  it,  and  the  defend- 
ant advanced  him,  Munday,  one  hundred  and  twenty-five  dollars ; 
that  he  was  acting  as  the  agent  of  the  defendant  in  the  purchase  of 
this  lot  of  lumber ;  that  he  advanced  the  plaintiff  one  hundred  dol- 
lars on  it ;  that  when  the  lumber  was  ready  to  be  measured  at  the 
railroad,  the  defendant  told  him  to  go  and  measure  it,  and  he,  the 
defendant,  would  pay  him,  Munday,  for  it ;  that  he  measured  it  and 
had  it  shipped  to  the  defendant  at  Toledo. 

On  cross-examination,  this  witness  testified  that  he  was  never  the 
agent  of  the  defendant  except  in  the  purchase  of  this  particular 


480  UNDISCLOSED    PRINCIPAL. 

lumber ;  that  he  did  not  know  what  facts  were  necessary  to  consti- 
tute an  agency ;  that  he  had  a  written  contract  with  the  defendant 
for  lumber,  and  that  the  following  was  a  copy  of  the  contract : 

"Camden,  Carroll  County,  Ind.,  Nov.  26,  1868. 

"W.  M.  Munday,  of  Rockfield,  Indiana,  contracts  to  A.  J. 
Thomas  and  E.  C.  Rice,  of  Camden,  Carroll  county,  Indiana,  two 
hundred  thousand  feet  of  black  walnut  lumber,  said  lumber  to  be 
from  one  to  four  inches  thick,  or  as  the  said  Thomas  and  Rice  may 
direct,  and  from  ten  to  sixteen  feet  long,  and  six  inches  and  up- 
wards in  width ;  to  be  free  from  hearts,  shakes,  and  rotten  knots, 
and  good  merchantable  lumber,  subject  to  Wheelock  and  Tuttle's 
inspection,  at  Toledo,  Ohio.  The  said  Munday  agrees  to  deliver 
one  hundred  thousand  feet  of  said  lumber  on  cars  at  Rockfield  or 
vicinity,  at  his  own  expense,  by  the  first  of  June,  1869,  and  one 
hundred  thousand  feet  by  the  first  of  October,  1869.  The  said 
Thomas  and  Rice  agree  to  pay  the  said  Munday  thirty-five  dollars 
per  thousand  feet,  when  said  lumber  is  delivered  aboard  of  cars. 

"WilHam  M.  Munday." 

That  on  this  contract  the  defendant  advanced  to  him  the  one 
hundred  and  twenty-five  dollars ;  that  he  told  the  defendant  he 
wanted  to  advance  this  one  hundred  and  twenty-five  dollars  to  the 
plaintiff ;  that  he  only  gave  the  plaintiff  one  hundred  dollars  of  it, 
and  the  balance  he  kept ;  that  the  contract  was  a  sham ;  that  he  did 
not  know  that  Rice  had  anything  to  do  with  it;  that  he  read  it 
carefully  before  signing ;  that  he  did  not  know  that  Rice  was  a 
partner  of  the  defendant ;  that  he  did  not  know  what  compensa- 
tion he  was  to  receive  for  his  services  as  agent ;  that  the  defendant 
never  held  him  out  to  the  world  as  an  agent ;  that  he  never  bought 
any  other  lumber  as  the  agent  of  the  defendant ;  that  the  defendant 
never  authorized  him  to  represent  to  the  plaintiff  that  he  was  the 
defendant's  agent ;  that  the  defendant  did  not  authorize  him  to  buy 
lumber  on  the  credit  of  the  defendant ;  and  that  the  plaintiff  had 
not  threatened  him  with  a  criminal  prosecution  in  the  event  of  his 
failure  to  obtain  a  judgment  against  the  defendant. 

Defendant's  evidence : 

Andrew  J.  Thomas,  the  defendant,  testified  that  Munday  was 
never  his  agent  for  the  purchase  of  lumber  from  the  plaintiff  or 
any  other  person,  nor  was  ever  Munday  his  agent  for  the  transac- 
tion of  any  business  of  any  character ;  that  he  did  not  know  that 
Munday  was  representing  himself  as  his  agent,  or  that  he  claimed 
to  be  his  agent,  until  after  the  plaintiff  had  informed  him  that  Mun- 
day had  failed  to  pay  him ;  that  the  only  contract  he  ever  had  with 
Munday  was  the  written  contract  executed  on  the  26th  day  of  No- 
vember, 1868,  about  which  Munday  testified;  that  the  contract  was 
not  a  sham,  but  was  made  in  good  faith,  and  the  lumber  sold  by 
the  plaintiff  to  Munday  was  applied  by  Munday  on  that  contract ; 
that  Rice  and  the  witness,  at  the  time  of  the  execution  of  the  con- 


tract,   were.   :n  :p   m   ". 

knew  the'  fa''t  wrote  f 

ar.  unie, 

v,'j:  ,,  ,,  .  .  f.rm 

(•i   1  v. mas  &  Rice;  that  at  '  ne  did  not  k  ':, 

'V  made  his  acquaint  '■^^■'.  1869,  • 

:  1  him  that  he  shoulc:  iday,  wl; 

v'.c  ma-i,  that  he  had  some  iunH'vi    .  ""ilroau  i' 

day),  and  he  agreed  to  do  so;  that  t  er  was 

'  to  their  firm,  at  Toledo,  Ohio;  liv 
c  met  Munday  at  De^'''^  -^c!  v,- 
he  met  the  plaintiff  there, 

whereabouts  of  IMunday,  sU  .     _,    __:  . 

as  he  had  agreed  to  send  the  money  by  express;  tha 
did  not  ask  or  intimate  that  the  witness  should  pa\ 
lumber;  the  first  intimation  that  the  witness  had  of  s.; 
tation  being  entertained  was  in  the  1<  n  the  planii; 

on  the  7th  of  June,  1869;  that  in  a  -  after  that  "; . 

received  he  met  the  plaintiff,  who  infi:/rmed  him  that  Munda 
deceived  him,  and  he  could  not  get  his  money;  that  he  ;i 
promised,  directly  or  indirectly,  that  he  would  pay  the  plaintiff  or 
see  that  he  was  paid ;  for  he  had  no  dealings  with  him  in  any  shape ; 
and  that  he  had  stated  to  the  witness  Hubbard  that  he  would  get 
the  plaintiff's  lumber  from  Munday,  who  had  contracted  with  the 
plaintiff  for  it. 

Here  the  defendant  offered  to  te-    '  '   on  the 

May,  1869,  before  the  plaintiff  had  v  -urn  th?; 

acted  in  ba"d  faith  and  had  fail 
Munday  made  a  complete  settle 
between  them,  which  included  t' 
'  r;as  found  there  was  due  ~^' 
-.  and  fifty-four  cents,  wl 
,  which  closed  the  a< 
account  had  not  sir- 
the  court,  and  t' 
:lijah  C.  Rice  tc 
and  was  in  November,  . 
"  ''^ness  Munday  and  the 
contract  in  the  presence 

'lis;  and  that  Munda v  n:  ■'! 

desired  to  mak**  sut^b  0 
new  of  ?* 

it  of  thr  .0 

ntiff  for  his  lui^  with  the 


:.t  on  said 


r;  that  he  did  not  kuow  what  i.: 

to  consti- 

dti  agency;  that  he  had  a  written 

defendant 

tor  i umber,  and  tliat  the  following  was 

iitract : 

"Lamden,  Carroll  C" -i'^    Ji"''...  Vi- 

•^W.    M.    Munday. 

.    to    A.    J. 

Thomas  and  E.  C    '                   c  ^    ,1. 

'•-na,  two 

hundred  thousan<l                        ■:  wahir. 

r  to  be 

from  one  to  four  i                       ur  as  tb 

i  Kice  may 

direct,  and  fron't                           n  feet  ]■ 

es  and  up- 

wards  in  wid' 

otten  knots, 

and  good  m<: 

and  Tuttle's 

inspection,  ai                                 ihe  said  iVJ 

.,rces  to  deliver 

one  hundr-^''                                 said  lumber 

at  Rockfield  or 

vicinity,                                         uy  the  first 

1869,  and  one 

hundred                                      rue  fir  •      ;'   ' 

' ''i.     The  said 

Thomas  ..                                pay  th 

five  dollars 

per  thousaiii'                               lumber  is 

■d  of  cars. 

i  unday." 

Tb:                                           iefendar 

■.0  him  the  one 

'■' .•  ..    .^.-..ars;   »•' 

.'   defendant  he 

-  one  hmidj' 

c  dollars  to  the 

.  e  the  pi 

;i;.!red  dollars  of  it, 

hat  the  . 

a  sham ;  that  he  did 

it ;  that  he  read  it 

w  that  Rice  was  a 

pairr                  ^                        that  h' 

.  'W  what  compensa- 

lion  ;                                        ■  '^  servr... 

;  that  the-  defendant 

ncvt  ■                                            •  Id  as  an 

lat  he  never  bought 

'tuy  uui'                                           of  the  dci-.  :■ 

M  ;  that  the  defendant 

;iever  au,                                      sent  to  the  ; 

ji.ii/itiff  that  he  was  the 

defendant                                           'iint  did  > 

i  irize  him  to  buy 

lumber  0,.                                          'idant:  a^ 

ne  plaintiff  had 

not  threateuc*: 

jvent  of  his 

failure  to  obt:;. 

Defendant" - 

■'• 'idrew  J.                                         ..,  ,.    u.. 

i.       .-imiviciv        vvcx^>                        ■ 

his  ag<-                                      of  lum! 

rhe  plaintiff  or 

-  ■  persoi!,                                   ' 

•  the  transac- 

nv  busJP' 

know  that 

:  he  claimed 

,ii  that  Mun-           1 

day  had  failed  to  pay 

Iitract  he  ever  had  with           1 

Munday  was  the  writt 

on  the  26th  day  of  No-         j| 

vember,  1868,  about  \> 

d :  that  the  contract  was         H 

not  a  sham,  but  was  in.f 

and  the  lumber  sold  by         fl 

the  plaintiff  to  Munday  \                              1 

unday  on  that  contract ;        H 

that  Rice  and  the  witness, 

le  execution  of  the  cor.          H 

LIABILITY    PRINCIPAL   TO   THIRD    PARTY.  48 1 

tract,  were  in  partnership  in  the  lumber  business,  and  Munday 
knew  the  fact,  for  Rice  wrote  the  contract  in  Munday's  presence, 
and  assisted  in  arranging  its  terms ;  that  he  was  not  at  that  time, 
nor  since,  engaged  in  any  business  except  as  a  member  of  the  firm 
of  Thomas  &  Rice ;  that  at  that  time  he  did  not  know  the  plaintiff, 
and  only  made  his  acquaintance  in  May,  1869,  when  the  plaintiff 
requested  him  that  he  should  inform  Munday,  when  he  should  next 
see  him,  that  he  had  some  lumber  at  the  railroad  for  him  (Mun- 
day), and  he  agreed  to  do  so;  that  this  lumber  was  measured  and 
shipped  to  their  firm,  at  Toledo,  Ohio;  that  on  the  12th  day  of  May, 
1869,  he  met  Munday  at  Delphi,  and  in  about  a  week  afterward 
he  met  the  plaintiff  there,  when  the  plaintiff  inquired  as  to  the 
whereabouts  of  Munday,  stating  that  Munday  had  not  paid  him, 
as  he  had  agreed  to  send  the  money  by  express ;  that  the  plaintiff 
did  not  ask  or  intimate  that  the  witness  should  pay  him  for  the 
lumber ;  the  first  intimation  that  the  witness  had  of  such  an  expec- 
tation being  entertained  was  in  the  letter  from  the  plaintiff  to  him, 
on  the  7th  of  June,  1869;  that  in  a  few  days  after  that  letter  was 
received  he  met  the  plaintiff,  who  informed  him  that  Munday  had 
deceived  him,  and  he  could  not  get  his  money;  that  he  never 
promised,  directly  or  indirectly,  that  he  would  pay  the  plaintiff  or 
see  that  he  was  paid ;  for  he  had  no  dealings  with  him  in  any  shape ; 
and  that  he  had  stated  to  the  witness  Hubbard  that  he  would  get 
the  plaintiff's  lumber  from  Munday,  wdio  had  contracted  with  the 
plaintiff  for  it. 

Here  the  defendant  offered  to  testify  that  on  the  12th  day  of 
May,  1869,  before  the  plaintiff  had  informed  him  that  Munday  had 
acted  in  bad  faith  and  had  failed  to  pay  him,  the  defendant  and 
Munday  made  a  complete  settlement  of  all  accounts  and  demands 
between  them,  which  included  the  lumber  from  the  plaintiff;  when 
it  was  found  there  was  due  Munday  two  hundred  and  eight  dol- 
lars and  fifty-four  cents,  which  sum  the  defendant  then  paid  Mun- 
day, which  closed  the  account  between  them ;  and  that  the  state  of 
the  account  had  not  since  changed.  This  testimony  was  excluded 
by  the  court,  and  the  defendant  excepted  to  the  ruling. 

Elijah  C.  Rice  testified  that  he  was  a  partner  of  the  defendant, 
and  was  in  November,  1868,  when  the  contract  referred  to  by  the 
witness  Munday  and  the  defendant  was  executed ;  that  he  wrote 
the  contract  in  the  presence  of  Munday,  and  assisted  in  arranging 
its  terms ;  and  that  ^Munday  first  spoke  to  him  about  it,  and  said 
that  he  desired  to  make  such  a  contract  for  lumber ;  that  he  never 
heard  or  knew  of  Munday  claiming  to  be  the  agent  of  their  firm, 
or  the  agent  of  the  defendant,  until  after  ^Nlunday  had  failed  to 
pay  the  plaintiff  for  his  lumber ;  and  that  he  was  present  with  the 
defendant  and  Munday  on  the  12th  day  of  May,   1869. 

Here  the  defendant  offered  to  prove  by  this  witness  that  on  said 
31 — Reinhard  Cases. 


482  UNDISCLOSED    PRINCIPAL. 

I2th  day  of  May,  1869,  Munday,  the  defendant,  and  the  witness 
had  a  full  settlement  of  all  their  business  transactions,  including 
the  lumber  from  the  plaintiff,  when  a  balance  of  two  hundred  and 
eight  dollars  and  fifty-four  cents  due  Munday  was  then  paid  him, 
which  closed  the  account  between  them,  and  the  state  of  the  ac- 
count has  not  since  changed,  and  the  lumber  from  the  plaintiff  was 
applied  on  the  contract  referred  to  without  objections.  This  testi- 
mony was  also  excluded  by  the  court,  and  proper  exceptions  taken 
by  the  defendant. 

This  was  all  the  evidence  given  or  offered  in  the  case.  In  an 
able  and  learned  brief  for  the  appellant,  a  reversal  of  the  judgment 
is  asked  and  urged,  for  two  reasons ;  first,  because  the  finding 
of  the  court  was  not  sustained  by  the  evidence ;  second,  because 
the  court  rejected  material  and  proper  evidence  offered  by  the 
appellant.  Upon  a  mere  preponderance  of  evidence  we  cannot  re- 
verse a  judgment  below.  This  is  well  settled  by  a  long  line  of  de- 
cisions of  this  court;  and  for  the  reasons,  among  others,  that  we 
only  see  the  evidence  as  it  is  written,  in  a  bill  of  exceptions,  while 
the  jury  and  court  below  meet  and  see  the  witnesses  face  to  face, 
see  and  observe  their  actions  and  may  have  divined  their  motives, 
prevarication,  readiness  or  hesitancy  in  answering  questions ;  but 
when,  as  in  this  case,  there  is  absolutely  no  evidence  to  support 
the  finding  upon  any  known  rule  or  law  of  evidence,  it  is  our  duty 
to  reverse  the  judgment. 

The  whole  evidence  taken  together  thoroughly  and  effectually 
excludes  the  idea  of  Munday's  agency.  But,  assuming  all  that  is 
claimed  by  the  appellee  to  be  true,  Munday  was  only  an  agent  for 
the  purchase  of  this  particular  lumber,  and  was  therefore  a  special 
agent,  with  no  authority,  according  to  his  own  testimony,  to  buy 
the  lumber  on  credit.  Upon  this  theory  of  the  case,  the  appellant 
was  clearly  not  liable,  for  the  agent  in  buying  on  credit  exceeded 
his  authority,  as  he  himself  testified.  In  support  of  this  position,  we 
refer  to  the  familiar  principle  governing  this  class  of  agencies.  The 
principle  is  thus  stated  by  Judge  Story,  in  his  Commentaries  on  the 
Law  of  Agency,  §  126: 

"Before  quiting  this  subject  of  the  nature  and  extent  of  the  au- 
thority of  agents,  it  seems  proper  to  refer  again  to  what  has  been 
already  incidentally  stated,  the  distinction  commonly  taken  be- 
tween the  case  of  a  general  agent  and  that  of  a  special  agent,  the 
former  being  appointed  to  act  in  his  principal's  affairs  generally, 
and  the  latter  to  act  concerning  some  particular  object.  *  *  *  In 
the  latter  case,  if  the  agent  exceeds  the  special  and  limited  author- 
ity conferred  on  him,  the  principal  is  not  bound  by  his  acts ;  but 
they  become  nullities,  so  far  as  he  is  concerned ;  unless,  indeed,  he 
has  held  him  out  as  possessing  a  more  enlarged  authority." 

The  author  further  says,  §  133,  that  "where  the  agency  is  not 
held  out  by  the  principal,  by  any  acts,  or  declarations,  or  implica- 


LI^BJLMV    PRINCIPAL   TO   THIRD  PARTY.  4S3 

:  to     be     geri  rcj^ard     to     th 

i'-    ',...-'     't   'u:i-.t  frOiii  : 
r:i!"v-    '-..•:  ^  ■\-Mt',  and 

•ound  to  inquire  inn.'  tnc 

:   conferred.     In  such  a  i:  J 

the  principal  ought  to  be  b  ot  the  agent,  be- 

i.d  what  he  has  apparently  aui.  . ......    w,...w_.^  he  has  noi:  ''^"'■-- 

ied  the  confidence  of  the  other  partyj  who  has  dealt  with  the  ;: 

*    *    *    The  duty  of  inquiri        ''  '      ' 

since  the  principal  has  never 

era!    Mthority  what?- 

inq'i'r;, ,  he  trusts  t  ■ 

of  the  principal," 

And  in  Smith  Mercantile  ^-  nfter  discussii 

of  a  general  agent  to  bind  his  pr:  rill  matters  ■ 

the  general  scope  of  his  implied  .  the  author 

rule  is  directly  the  reverse  cone  particular  a 

agent  employed  specially  in  <  transaction;  icr  iL  . 

of  the  p.'irty  (]eaiuig  with  ^•  ae  to  ascertain  the  ': 

of  liis  authority ;  and  if  he  do  not,  he  niust  abide  the  conseque- 
The  same  doctrine  has  been  held  by  our  supreme  court,  in  ; 
ley  V.  Morrison,  7  Ind.  356,  where  the  court  say:     '"'Where  parties 
are  sought  to  be  charged  for  the  ■^'^^  ^  +  -  special,  and  not  a. general 
agent,  it  must  be  shown  that  th-  done  within  the  scope  of 

the  agency." 

The  case  of  Reitz  v.  Marti  306,  v 

"laser   certain    pr 
of  the  plaintiff, 
from  one  place  to  another. 
'  '-'  to  travel,  and  the  agent  ' 
nt  had  no  power  to  sell  . 
>ver  the  property  fror;  " 
of  the  court:   '"The 
atever  ^ " 
•,  if  his  ::, 
le  principal  has  neve-- 
ority  whatever  in  tbi 
irom  him  to  inquire 
'^ood  faith  of  the  agi 
is  no  conflict  in  the 
'    •'  view  of  the  ev: 
is  not  liable  fo*-  : 
iant  cor, 
V)!"'  >:"■■'■ 
agent  ■ 
which  : 
his  defc 


had  a  full  settlement  of  all  their  bi 
rh  .  lumber  from  the  ■  ''   ••'-^    ■  ^-  • 
:.'vi;*-  :[■  ■  ai's  and  fif' 
V.  :nch  close >:     ' 
count  has  n 
applied  on  the.  ^ 
mony  was  also  . 
by  the  defendai 
■  This  was  "" 
able  and  les 
is  askeo 
of  the 
the 


agei: 

the 

wa': 

his  auth  : 

refer  to   ' 

principk 

Law  of  -••,.■ 

'   "i'et^ire  ^    • 

thority  of  a.t 

■  ■'^^'<\6x   inci.i'.- 

';e  case  c; 

... .    being  ap- 

and  the  latter  to 
the  latter  case,  if  ui 
ity  conferred  on  hir 
thc'  nullitici 

has  :  out  ??  ' 

The  autaor  f^ 
held  out  bv  the 


including 
dred  and 
jjaid  bin 
f  the  ac- 
.iitiff  wzs 
This  testi- 
Dtions  taken 


of  the  judgmen 

;iuse   the   finding 

second,  because 

offered   by  the 

e  we  cannot  re- 

.        -  long  line  of  de- 

Llu:  i\:ai./  others,  that  we 

written,  in  exceptions,  while 

et  and  see  V  -ses  face  to  face, 

and  mav  Iv  •  :d  their  motives, 

lestions;  but 

e  to  support 

.  idence,  it  is  our  duty 

r  thoroughly  and  effectually 

^"'•n,  assuming  all  that  is 

i!  ras  only  an  agent  for 

liber,  an  1  was  therefore  a  special 

ng  to  hi-  '■•M-f!  testimony,  to  buy 

theory  se,  the  appr' 

:'ent  in  b,  'U  credit  excc';.  :• 

.    d.    In  support  of  this  position,  we 

erning  this  class  of  agencies.    The 

Story,  in  his  Commentaries  on  the 

it  of  the  au- 
liat  has  been 
' ,'    taken    be 
■  and  ti  :  il  agent,  the 

In'c  pri:  ..., ,-;rs  generally. 

particular  object.    *    *    *    Ir, 

:e  special  and  limited  author- 

^  not  bound  by  his  acts ;  but 

'   ^,  indeed,  he 

.ty." 

c  the  agency  is  not 

larations,  or  implica- 


LIABILITY    PRINCIPAL   TO   THIRD   PARTY.  483 

tions,  to  be  general  in  regard  to  the  particular  act  of 
business,  it  must  from  necessity  be  construed  according  to  its  real 
nature  and  extent;  and  the  other  party  must  act  at  his  own  peril, 
and  is  bound  to  inquire  into  the  nature  and  extent  of  the  authority 
actually  conferred.  In  such  a  case,  there  is  no  ground  to  contend 
that  the  principal  ought  to  be  bound  by  the  acts  of  the  agent,  be- 
yond what  he  has  apparently  authorized,  because  he  has  not  mis- 
led the  confidence  of  the  other  party,  who  has  dealt  with  the  agent. 
*  *  *  The  duty  of  inquiring,  then,  is  incumbent  on  such  party, 
since  the  principal  has  never  held  the  agent  out  as  having  any  gen- 
eral authority  whatsoever  in  the  premises ;  and,  if  he  trusts  without 
inquiry,  he  trusts  to  the  good  faith  of  the  agent,  and  not  to  that 
of  the  principal." 

And  in  Smith  Mercantile  Law,  173,  after  discussing  the  powers 
of  a  general  agent  to  bind  his  principal  in  all  matters  coming  within 
the  general  scope  of  his  implied  authority,  the  author  says  that  "the 
rule  is  directly  the  reverse  concerning  a  particular  agent,  that  is, 
an  agent  employed  specially  in  one  single  transaction ;  for  it  is  the 
duty  of  the  party  dealing  with  such  an  one  to  ascertain  the  extent 
of  his  authority ;  and  if  he  do  not,  he  must  abide  the  consequences." 

The  same  doctrine  has  been  held  by  our  supreme  court,  in  Purs- 
ley  V.  j\'Iorrison,  7  Ind.  356,  where  the  court  say :  "Where  parties 
are  sought  to  be  charged  for  the  act  of  a  special,  and  not  a  general 
agent,  it  must  be  shown  that  the  act  was  done  within  the  scope  of 
the  agency." 

The  case  of  Reitz  v.  Martin,  12  Ind.  306,  was  an  action  to  recover 
of  the  purchaser  certain  personal  property  which  had  been  sold 
by  an  agent  of  the  plaintiff,  who  had  been  employed  to  drive  stock 
from  one  place  to  another.  The  stock  became  foot-sore  and  un- 
able to  travel,  and  the  agent  made  the  sale.  The  court  held  that  the 
agent  had  no  power  to  sell  the  stock,  and  that  the  owner  might 
recover  the  property  from  the  purchaser.  We  quote  from  the  opin- 
ion of  the  court :  "The  general  rule  is,  that  the  authority  of  the 
agent,  of  whatever  description,  must  be  strictly  pursued ;  otherwise, 
the  principal,  if  his  agent  be  a  special  one,  will  not  be  bound.  And 
if  the  principal  has  never  held  the  agent  out  as  having  any  general 
authority  whatever  in  the  premises,  it  is  the  duty  of  one  purchas- 
ing from  him  to  inquire ;  and  if  he  trusts  without  inquiry,  he  trusts 
to  the  good  faith  of  the  agent,  and  not  of  the  principal." 

There  is  no  conflict  in  the  authorities ;  and  it  is  manifest  that  in 
taking  either  view  of  the  evidence  as  to  the  pretended  agency,  the 
appellant  was  not  liable  for  the  unauthorized  acts  of  Munday. 

The  appellant  complains  of  the  ruling  of  the  court  in  rejecting 
material  and  proper  evidence  offered  by  him.  If  Munday  was  the 
agent  of  the  appellant  in  the  purchase  of  the  lumber,  then  the  facts 
which  the  appellant  offered  to  prove  were  material  in  establishing 
his  defense.    The  evidence  shows,  as  before  stated  (if  it  shows  any- 


484  UNDISCLOSED    PRINCIPAL. 

thing-) ,  that  Munday  was  merely  a  special  or  particular  agent  in  this 
single  transaction  with  the  appellee.  It  also  shows  that  the  credit 
was  given  to  Munday,  and  not  to  the  appellant ;  that  Munday  made 
two  or  three  partial  payments  on  the  lumber ;  that  he  did  not  dis- 
close his  character  as  agent  at  the  time  of  the  purchase ;  that  the 
appellee  looked  alone  to  Munday  for  his  pay,  and  only  ceased  his  en- 
deavors in  that  direction  after  it  became  manifest  that  Munday  had 
deceived  him,  and  did  not  intend  to  pay  him ;  that  the  appellee  then 
discovered  that  the  appellant  was  liable,  and  addressed  him  a  letter 
to  that  efifect,  and  informed  the  appellant  that  Munday  had  acted 
in  bad  faith,  and  he  could  get  nothing  out  of  him.  The  appellant 
then  offered  to  prove  that  before  the  appellee  had  written  him  the 
letter  referred  to,  and  before  the  appellee  had  informed  him  that  Mun- 
day had  failed  to  pay  him  for  the  lumber,  the  appellant  and  Mun- 
day had  made  a  complete  settlement  of  all  accounts  and  demands 
between  them,  which  included  the  lumber  from  the  appellee,  when 
it  was  found  there  was  a  balance  due  to  Munday,  which  the  appel- 
lant then  paid  him,  and  which  closed  the  account  between  them ; 
and  that  the  state  of  their  accounts  had  not  since  changed.  The 
court  did  not  permit  the  appellant  to  prove  these  facts,  and  we  hold 
that  such  ruling  was  error,  and  we  will  let  the  authorities  speak 
for  us. 

In  I  Parsons  Contracts  62,  it  is  said,  that  "in  the  case  of  a  simple 
contract,  an  undisclosed  principal  may  show  the  apparent  party  was 
his  agent,  and  he  may  put  himself  in  the  place  of  his  agent,  but 
not  so  as  to  aft'ect  injuriously  the  rights  of  the  other  party.  *  *  * 
By  parity  of  reasoning,  and  undisclosed  principal,  subsequently  dis- 
covered, may  be  made  liable  on  such  contract ;  but,  in  general,  sub- 
ject to  the  qualification  that  the  state  of  the  account  between  the 
principal  and  agent  is  not  altered  to  the  detriment  of  the  principal." 

The  case  of  Thompson  v.  Davenport,  9  B.  &  C.  78,  is  a  case  in 
point,  and  the  doctrine  is  very  ably  and  fully  expounded  by  Lord 
Tenterden,  who  said :  "I  take  it  to  be  a  general  rule,  that  if  a  per- 
son sells  goods  (supposing  at  the  time  of  the  contract  he  is  dealing 
with  a  principal),  but  afterwards  discovers  that  the  person  with 
whom  he  has  been  deahng  is  not  the  principal  in  the  transaction, 
but  agent  for  a  third  person,  though  he  may  in  the  meantime  have 
debited  the  agent  with  it,  he  may  afterward  recover  the  amount 
from  the  real  principal;  subject,  however,  to  this  qualification,  that 
the  state  of  the  account  between  the  principal  and  the  agent  is  not 
altered  to  the  prejudice  of  the  principal." 

In  the  same  case  Bayley,  J.,  said :  "If  the  principal  has  paid  the 
agent,  or  if  the  state  of  the  accounts  between  the  agent  here  and 
the  principal  would  make  it  unjust  that  the  seller  should  call  on  the 
principal,  the  fact  of  payment,  or  such  a  state  of  accounts,  would  be 
an  answer  to  the  action  brought  by  the  seller,  where  he  had  looked 
to  the  responsibility  of  the  agent.     *     *     *     It  is   said  that  the 


r.i..i:i:Tv.    ri<.  4^5 

i-T  ought  to  have  asked  <  charged 

with  the  price  of  th<  iie  might 

c  lost  his  right  to  cla^  1  the  lat- 

.'  the  agent,  or  1  ; 

'  and  the  agent 
'.'u,  'd  be  called  upoii  L(, 

. r  ^d  as  this  is,  where  i) 

•  has  had  the  goods  has  not  paid  I 

case?     That  he  should  pay  for 

solvent  agent,  or  to  the  estate  of  the 

no  payment  in  respect  to  "' —  '  v.:  j;.i, 

as  it  seems  to  me,  all  o  /,  that 

I,  and  the  buyer  ;3e  the  p' 

.'ided  he  has  not 
The  case  cited  is  appj  i  Story  on  /' 

where,  after  discussing  l,.  ...ane  of  the  Ik...  . 

,  •  ncipal  in  such  cases,  it  is  'lat  "there  is  this  qua 

'.ever,  annexed  to  such  liaii   ;:}     i  the  principal  that  nor 
'.he  meantime,  passed  between  the  principal  and  the 
t'U-  the  state  of  their  accounts,  or  otherwise  to  operate  inju. ' 
'     the  principal,  if  he  has  acted  in  the  confidence  that  inclusive  < 

given  to  the  agent;  and,  moreover,  that  there  has  been  no 
'es  on  the  part  of  the  creditor." 

hat  the  evidence  in  the  case  at  bar  not  only  tends  to  establish, 
does  conclusively  establish  the  fa-'        •  "be  credit  was     '■    "  ' 
iday,  there  can  be  no  question.     '  e  evidence  f 

lat  conclusion,  it  was  error  f '  ■ 
•ed,  if  the  authorities  cited  ■: 
le  with  Munday,  who  did  not 
!e  against  the  appellant;  th-    , 
strangers  to  each  other ; 
..■  tuiday,"  whom  he  had  kno- 
he  looked  to  Munday  alone 
'  •  '   never  held  Munday  oi  ■ 
ged  with  his  acts ;  and,  .■ 
-elf,  the  legal  and  n 
\\  to  Munday.    In  si  j^ 
American  note  to  the  ca: 
•'•"'th  Lead.  Cas.  358,  wIil,. 
v  ■        rs  made  by  an  agent  as  ^ 
auiiiunty,  are  binding  on  the  :  " 
results  from  the  natural  inf' 
o<i  i.rb  ,}{  of  the  others  do  n* 
•  •;:-  ■(-  JL'le,  anr"  th.it  the  hw 

,'»ds  are 
'""•i;^'  ',    ■  .   .uT  an  un- 

known prn;  iially  natural 


484 


rDISCL</.--'JL.u'    ii\xi><^i 


\\    :^  g'iven  to  ivlundj 
1-^  j  or  three  part'n' 

.    -e  his  characi 
appellee  looked  . 
deavors  in  that 
deceived  hii: 
discovered- 1 
to  that  effect,  a 
in  bad  faith,  anu 
then  offered  to  1 
letter  referred  t 
dav  had  fail 


•  special 

■c.     It 

;U  in  thi- 
,he  credi' 

.r.e  of  V 

lay  mad'; 
.  :  not  di^ 
ase;  that  th; 
eased  his  en- 
Mi  iinday  had 

r  the  h- 

liuday  iiad    ■ 

The  appe'    ■ 
written  him  th 
edhim  that  Mun 
pliant  and  Mur 

11  V, 

lant 


nor 


prr 

The  . 
point,  a. 
Tenterden, 
son  sells  gO' 
with  a  prin 
whom  he  has  . 
but  agrent  for  a 


tiA'  btatc  of  the 
altered  to  the  pn 

In  the  same  case 
agent,  or  if  the  stai 
the  principal  would 
principal,  the  fact  of 
an  answer  to  the  ac. 
to  the   n^-r»onsibilit\ 


vViiich    LiiC    i.  : 

t  between  t' 
e  changed.     Tli' 
cts,  and  we  hoi 
authorities  speak 

e  of  a  simple 
.iiiL,w  tiiC  apparent  party  w?. 
^  the  place  of  his  agent,  bi; 
other  party.     *     * 
.11' ..c.  .  pal,  subsequently  dis 

on  such  :  but,  in  general,  sub 

the  stat^;    '1      .;    account  between  th- 
:red  to  the  detriment  of  the  principal 
*?,  is  a  case  in 
Tided  by  Lord 
lO  be  a  gciiCiai  rule,  that  if  a  per 
tim.^  of  \\\t  Cv'.ntract  he  is  dealin;; 
the  person  witr 
::  iii  the  transaction 
in  the  meantime  hav 
T  the  amour 
iftcation,  th;i 
agent  is  nc- 

"If  the  principal  has  paid  dv 
•etween  the  agent  here  an 
'e  seller  should  call  on  tlv 
'-'-'■  of  accounts,  -       ■     ' 
where  he  h 
It  is   said   that   ti; 


LIABILITY    PRINCIPAL   TO   THIRD    PARTY.  485 

seller  ought  to  have  asked  the  name  of  the  principal,  and  charged 
him  with  the  price  of  the  goods.  By  omitting  to  do  so,  he  might 
have  lost  his  right  to  claim  payment  from  the  principal,  had  the  lat- 
ter paid  the  agent,  or  had  the  state  of  the  accounts  between  the 
principal  and  the  agent  been  such  as  to  make  it  unjust  that  the 
former  should  be  called  upon  to  make  the  payment.  But,  in  a  case 
circumstanced  as  this  is,  where  it  does  not  appear  but  that  the  man 
who  has  had  the  goods  has  not  paid  for  them,  what  is  the  justice  of 
the  case?  That  he  should  pa}^  for  them  to  the  seller,  or  to  the 
solvent  agent,  or  to  the  estate  of  the  insolvent  agent,  who  has  made 
no  payment  in  respect  to  these  goods?  The  justice  of  the  case  is 
as  it  seems  to  me,  all  on  one  side,  namely,  that  the  seller  shall  be 
paid,  and  the  buyer  (the  principal)  shall  be  the  person  to  pay  him, 
provided  he  has  not  paid  anybody  else." 

The  case  cited  is  approvingly  quoted  in  Story  on  Agency,  §  291, 
where,  after  discussing  the  general  doctrine  of  the  liabilit}^  of  the 
principal  in  such  cases,  it  is  added,  that  "there  is  this  qualification, 
however,  annexed  to  such  liability  of  the  principal  that  nothing  has, 
in  the  meantime,  passed  between  the  principal  and  the  agent  to 
alter  the  state  of  their  accounts,  or  otherwise  to  operate  injuriously 
to  the  principal,  if  he  has  acted  in  the  confidence  that  inclusive  credit 
was  given  to  the  agent;  and,  moreover,  that  there  has  been  no 
laches  on  the  part  of  the  creditor." 

That  the  evidence  in  the  case  at  bar  not  only  tends  to  establish, 
but  does  conclusively  establish  the  fact  that  the  credit  was  given  to 
]\Iunday,  there  can  be  no  question.  But  if  the  evidence  even  tends 
to  that  conclusion,  it  was  error  for  the  court  to  reject  the  testimony 
offered,  if  the  authorities  cited  mean  anything.  The  contract  was 
made  with  ]\Iunday,  who  did  not  disclose  his  agency ;  no  charge  was 
made  against  the  appellant ;  the  appellee  and  the  appellant  were  en- 
tire strangers  to  each  other;  the  appellee  "had  great  confidence  in 
Munday,"  whom  he  had  known  for  a  long  time,  and  for  a  long  time 
he  looked  to  Munday  alone  for  the  balance  due  him ;  the  appellant 
had  never  held  ]\Iunday  out  as  his  agent,  whereby  he  could  be 
charged  with  his  acts ;  and,  aside  from  the  testimony  of  the  appellee 
himself,  the  legal  and  natural  presumption  is  that  the  credit  was 
given  to  Munday.  In  support  of  this  position,  we  refer  to  the  very 
able  American  note  to  the  case  of  Thompson  v.  Davenport,  supra,  in 
2  Smith  Lead.  Cas.  358,  where  it  is  said  that,  "as  a  general  rule, 
contracts  made  by  an  agent  as  such,  and  within  the  scope  of  his 
authority,  are  binding  on  the  principal,  and  not  on  the  agent.  This 
results  from  the  natural  inference  that  those  who  merely  stipulate 
on  behalf  of  the  others  do  not  mean  to  make  themselves  personally 
answerable,  and  that  the  burden  of  the  contract  ought  to  be  borne 
by  him  who  is  to  reap  the  benefit.  When,  however,  goods  are 
bought,  or  stipulations  of  any  sort  made  by  an  agent  for  an  un- 
known principal,  this  inference  is  repelled  by  the  equallj^  natural 


486  UNDISCLOSED    PRINCIPAL. 

presumption  that  the  other  party  to  the  transaction  rehed  on  the 
solvency  of  the  agent,  whom  he  knew,  rather  than  on  that  of  the 
principal,  of  whose  character  and  condition  he  was  ignorant." 

But  we  refrain  from  a  further  citation  of  authorities.  Does  the 
justice  of  the  case  at  bar  require  that  the  appellant  shall  again  pay 
for  what  he  bought,  under  a  written  contract,  from  Munday?  He 
did  no  act  which  was  calculated  to  deceive  the  appellee,  who  was  a 
stranger  to  him.  If  the  appellee  was  deceived  at  all,  it  was  by 
Munday,  in  whom  he  had  such  great  confidence,  and  whom  he  had 
favorably  known  so  long.  In  good  faith,  the  appellant  had  paid 
Munday ;  and  upon  the  theory  of  the  appellee  in  seeking  to  hold  the 
appellant  liable  for  a  debt  which  Munday  contracted,  the  court 
ought  to  have  permitted  the  appellant  to  prove  the  state  of  the  ac- 
counts between  himself  and  Munday. 

If  the  court  committed  no  error,  then  the  authorities  cited  and 
the  reasons  of  the  law  are  no  longer  useful,  and  should  be  consigned 
to  oblivion  and  forgetfulness. 

It  was  error  to  find  as  the  court  did  and  to  overrule  the  motion 
for  a  new  trial. 

The  judgment  is  reversed,  at  the  costs  of  the  appellee,  with  in- 
structions to  grant  the  motion  for  a  new  trial. 

J.  H.  Gould,  for  appellant.^ 

^Accord:  Fradley  v.  Hyland,  37  Fed.  49.  On  page  50,  Wallace,  J., 
said :  "The  general  rule  is  familiar  that,  when  goods  are  bought  by  an  agent, 
who  does  not  at  the  time  disclose  that  he  is  acting  as  agent,  the  seller,  al- 
though he  has  relied  solely  upon  the  agent's  credit,  may,  upon  discovering  the 
principal,  resort  to  the  latter  for  payment.  But  the  rule  which  allows  the  seller 
to  have  recourse  against  an  undisclosed  principal  is  subject  to  the  qualification 
stated  by  Lord  Mansfield  in  Railton  v.  Hodgson,  4  Taunt.  576,  and  by  Tenter- 
den,  C.  J.,  and  Bayley,  J.,  in  Thomson  v.  Davenport,  g  Barn.  &  C.  78.  As 
stated  by  ]Mr.  Justice  Bayley,  it  is,  'that  the  principal  shall  not  be  prejudiced 
by  being  made  personally  liable  if  the  justice  of  the  case  is  that  he  should  not 
be  personally  liable.  If  the  principal  has  paid  the  agent,  or  if  the  state  of  the 
accounts  between  the  agent  here  and  the  principal  would  make  it  unjust  that 
the  seller  should  call  on  the  principal,  the  fact  of  payment  or  such  a  state  of 
accounts  would  be  an  answer  to  the  action  brought  by  the  seller,  where  he  has 
looked  to  the  responsibility  of  the  agent.'  The  principal  must  respond  to  and 
may  avail  himself  of  a  contract  made  with  another  by  an  undisclosed  agent. 
When  he  seeks  to  enforce  a  bargain  or  purchase  made  by  his  agent  the  rule 
of  law  is  that,  if  the  agent  contracted  as  for  himself,  the  principal  can  only 
claim  subject  to  all  equities  of  the  seller  against  the  agent.  In  the  language  of 
Parke,  B. :  'He  must  take  the  contract  subject  to  all  equities,  in  the  same  way 
as  if  the  agent  were  the  sole  principal,'  (Beckham  v.  Drake,  9  M.  &  W.  98) 
and  accordingly  subject  to  any  right  of  set-ofif  on  the  part  of  the  seller 
(Borries  v.  Bank,  29  L.  T.  N.  S.  689).  Thus  the  rights  of  the  principal  to 
enforce,  and  his  liability  upon,  a  contract  of  sale  or  purchase  made  by  his 
agent,  without  disclosing  the  fact  of  the  agency,  are  precisely  co-extensive,  as 
regards  the  other  contracting  party,  if  the  limitation  of  his  liability  is  accurately 
stated  in  the  earlier  cases.  The  qualification  of  the  principal  s  liability  to 
respond  to  his  agent's  contract,  as  stated  in  the  earlier  authorities  mentioned, 
was  narrowed  by  the  interpretation  adopted  in  Heald  v.  Kenworthy,  10  Exch. 
739,  to  the  efifect  that  the  principal  is  not  discharged  from  full  responsibility 


48? 


MAPLE  y.  RaIjL. 

T.;:'v     Supreme  Court  Commission. 

■tANGER,  _  ^.ic's  pe*^tion  in 

one  John  U.  Gennett,  , 
r>i.a  Dayton  Railroad  Company,  . 
and  April  5,  1876,  collected  fron: 
p-;;:;/,  S307.80  more  than  v,:, 
said  ag"e.nt,  "frandnlpntlv  ov( 


presented  to  ihe 
s  of  said  compaii_, ..  . 
i  he  never  had  any  1 
pril,  1876."  The  aci. 
'  defense  in  the  answ 
3.  Said  defendant  furt 
tcfore,  to  wit,  at  the  Sen 


lie  has  bee: 


'0'  h}-  the  conduLi 

doctrine  of  lI 
inland  and  in 
hmi^^il,  but  as  a  '^■^ 
.1.     One  of  the  m< 

,  Q.  B.  r 

:,  the  vc 


the  true 

'•^"duleiii 

.lUd  ' 

.  I 

'Ulli 

■it    Six 

-i  ^ 

:'i  th 

e  <  ■ 

rcitc 

iiiie 

;d  Hi  n: 

lany 

lt?rp 

'he 

potent 

did 

agent,  5- 
ipal  is  11'.;". 
him  lu  bo  tJie  priacipi: 
"n  the  fc''"'-  still  gave  ■ 
.n.  L.  K 
onpf  V. 

s:    "It  • 


think  the  ju 

Tin   *c   ^"^   p" 


uni   r.iiai   cue  or'  <.o  \ue                                ,1  oti  the 

of  the  agent,  w  new,  m                              i.i  of  the 

piK,.,,pai,  of  \vho?e  c:  i/' 

Bat  we  refrain  ir-  ^oes  the 

:e  of  the  case  at  .ain  pay 

:  .   what  he  bou9"li'  ...jay?    He 

did  no  act  whicli  :    who  was  a 

stratv   ..<,.;..,  •    j^   ^^^  jL,y 

Mu  .horn  he  had 

iiit  had  paid 
;;  to  hold  the 
1,  the  court 
te  of  the  ac- 


COUi 


..  u., ,  .  ..;es  cited  and 

onger  u;  uld  be  consigned 

c  the  motion 

;>pellee,  with  in- 


;):';:•  c    '0.    Wallace,    J., 

'  t  by  an  agent, 

the  seller,  al- 

■ou  discovering  th.' 

i.-.h  allows  the  scll'jr 

to  the  qualification 

76,  and  by  Tenier- 

--    &  C.  78.     As 

be  prejudiced 

r,,.  cn.-.,,;,i  not 

i  the 

..  that 

'■■■  '  uch  a  state  of 

'•.;  .  where  he  has 

id  to  Uie  .:-L  respond  to  and 

nvail  bin  nndisrlosed  agent. 

r.  \.(  i.    it  the  rule 

can  only 

.  •■  :  :.'£;e  of 

■    .    way 

,     .  •    ..  ■  ,  V   .'•i-  -iv  W.  98) 

r/    on    the   part  of  the    seller 

-    ;!"bis  .  f  rhc  principal  to 

'  made  by  his 

'-extensive,  a; 

L  Otiier  C'  •   '"■    :        ':-  '{-■'". 

rhp    ear!;.  .   '         •        '       •       •    •  • 


:;ni   luu  re"rj. liisiyiii; 


LIABILITY    PRINCIPAL   TO   THIRD   PARTY.  48/ 

MAPLE  V.  RAILROAD  COMPANY. 
1883.     Supreme  Court  Commission  of  Ohio.    40  Ohio  St.  313. 

Granger,  C.  J. — Maple's  petition  in  the  common  pleas  averred 
that  one  John  D.  Gennett,  as  agent  for  the  Cincinnati,  Hamilton 
and  Dayton  Railroad  Company,  at  times  between  January  14,  1870, 
and  April  5,  1876,  collected  from  him,  on  freight  bills  of  the  com- 
pany, $307.80  more  than  was  due  thereon;  that  the  company,  by 
said  agent,  "fraudulently  overcharged  above  the  regular  and  special 
rates  for  said  freight,  all  without  the  knowledge  and  consent  of  the 
said  plaintiff,  by  adding  a  percentage  of  pounds  of  weight  to  the 
bills  presented  to  the  plaintiff,  in  excess  of  the  true  weights  upon  the 
books  of  said  company,  all  of  which  was  fraudulently  done."  And, 
"that  he  never  had  any  knowledge  of"  said  fraud  "until  the  month 
of  April,  1876."  The  action  was  begun  September  30th,  1878.  The 
third  defense  in  the  answer  as  amended  read  as  follows : 

3.  Said  defendant  further  answering  says  that  said  plaintiff  here- 
tofore, to  wit,  at  the  September  terms,  1876,  of  the  court  of  com- 

unless  he  has  been  led  by  the  conduct  of  the  seller  to  make  payment  to  or 
settle  with  the  agent ;  and  the  doctrine  of  this  case  has  been  reiterated  in  many 
subsequent  cases,  both  in  England  and  in  this  country,  where  the  agent  did 
not  contract  as  for  himself,  but  as  a  broker,  or  otherwise  as  representing  an 
undisclosed  principal.  One  of  the  more  recent  English  cases  of  this  class  is 
Davison  v.  Donaldson,  9  Q.  B.  Div.  623.  But,  as  is  shown  in  Armstrong  v. 
Stokes,  L.  R.  7  Q.  B.  599,  the  version  of  Heald  v.  Kenworthy,  while  a  correct 
interpretation  of  the  rule  of  the  principal's  liability,  when  applied  to  cases 
in  which  the  seller  deals  with  the  agent  relying  upon  the  existence  of  an 
undisclosed  principal,  is  not  to  be  applied  in  those  in  which  the  seller  has  given 
credit  solely  to  the  agent,  supposing  him  to  be  the  principal.  This  case  de- 
cides that  the  principal  is  not  liable  when  the  seller  has  dealt  with  the  agent 
supposing  him  to  be  the  principal,  if  he  has  in  good  faith  paid  the  agent  at 
a  time  when  the  seller  still  gave  credit  to  the  agent,  and  knew  of  no  one  else. 
See  also,  Irvine  v.  Watson,  L.  R.  5  Q.  B.  D.  414."  In  Irvine  v.  Watson  the 
court  discredited  Armstrong  v.  Stokes,  supra,  and  affirmed  the  doctrine  of 
Heald  v.  Kenworthy,  supra.  On  page  417  of  Irvine  v.  Watson,  Bramwell,  L. 
J.,  says :  "It  is  true  that  in  Thompson  v.  Davenport  both  Lord  Tenterden 
and  Bayley,  J.,  suggest  in  the  widest  terms  that  a  seller  is  not  entitled  to  sue 
the  undisclosed  principal  on  discovering  him,  if  in  the  meantime  the  state  of 
account  between  the  principal  and  the  agent  has  been  altered  to  the  prejudice 
of  the  principal.  But  it  is  impossible  to  construe  the  dicta  of  those  learned 
judges  in  that  case  literally;  it  would  operate  most  unjustly  to  the  vendor  if 
we  did.  I  think  the  judges  who  uttered  them  did  not  intend  a  strictly  literal 
interpretation  to  be  put  on  their  words.  But  whether  they  did  or  no,  the 
opinion  of  Parke,  B.,  in  Heald  v.  Kenworthy  seems  to  me  preferable ;  it  is  this, 
that  'If  the  conduct  of  the  seller  would  make  it  unjust  for  him  to  call  upon  the 
buyer  for  the  money,  as  for  example,  where  the  principal  is  induced  by  the 
conduct  of  the  seller  to  pay  his  agent  the  money  on  the  faith  that  the  agent 
and  seller  have  come  to  settlement  on  the  matter,  or  if  any  representation  to 
that  effect  is  made  by  the  seller,  either  by  words  or  conduct,  the  seller  cannot 
afterwards  throw  off  the  mask  and  sue  the  principal.'  That  is  in  my  judgment 
a  much  more  accurate  statement  of  the  law." 


488  UNDISCLOSED   PRINCIPAL. 

mon  pleas  of  Putnam  county,  Ohio,  recovered  a  judgment  against 
the  said  J.  D.  Gennett  upon  proceedings  thereinbefore  had  in  said 
court  in  a  certain  action  wherein  said  Simon  Maple  was  plaintiff 
and  J.  D.  Gennett  was  defendant,  and  which  said  judgment  was 

for  the  sum  of  $307.80  principal  and  dollars  interest  and 

costs  of  suit,  and  said  defendant  avers  that  said  judgment  so  ren- 
dered was  for  the  same  subject-matter  and  cause  of  action  as  the 
first  cause  of  action  in  the  plaintiff's  petition  herein  set  forth.  That 
said  judgment  remains  in  full  force  and  effect,  wherefore  said  plain- 
tiff has  no  right  to  have  or  maintain  his  suit  against  the  said  de- 
fendant upon  said  first  cause  of  action. ^    *    '-^    * 

The  third  defense  presents  an  interesting  question.  In  presenting 
and  collecting  the  freight  bills  Gennett  acted  "within  the  scope  of 
his  authority."  The  company  held  him  out  to  its  customers  as  its 
representative  in  that  matter.  So  long  as  the  bills  he  presented  did 
not  by  the  weights  of  prices  noted  therein  furnish  fair  reason  to 
question  their  truth,  a  customer  of  the  company  had  full  right  to 
rely  upon  them  as  being  the  demands  of  the  company  upon  him.  On 
these  pleadings  we  must  presume  that  the  bills  gave  no  indication 
of  the  fraud. 

This  defense  admits  that  the  fraud  was  the  act  of  the  company 
by  its  agent.  If  they  conspired  together  to  commit  the  fraud  they 
were  joint  tort  feasors;  could  be  sued  jointly  or  severally.  In  such 
a  case  a  judgment,  without  satisfaction,  against  one,  could  not  be 
pleaded  in  bar  by  the  other.  Is  the  rule  different  because  the  com- 
pany was  ignorant  of  the  fraud,  and  is  liable  only  because  Gennett 
was  acting  within  the  scope  of  his  authority?  Was  Maple  bound 
to  elect  between  agent  and  principal,  and  having  carried  his  election 
to  judgment  against  Gennett  did  he  thereby  release  the  company? 
No  case  precisely  in  point  has  been  cited  and  we  have  found  none. 
We  are  referred  by  counsel  for  the  company  to  Priestly  v.  Fernie, 
3  Hurlstone  &  Coltman  Ex.  997;  Patterson  v.  Gandesquin,  15  East 
62 ;  Jones  v.  /Etna  Ins.  Co.,  14  Conn.  501 ;  Meeker  v.  Claghorn,  44 
N.  Y.  359;  Seeley  et  al.  v.  Ryan  &  Co.,  2  Gin.  Sup.  Ct.  158,  and 
a  case  in  i  Disney.  The  case  in  Disney  gives  no  aid  here.  The  one 
in  Gin.  Rep.  decides  that  the  principal  and  agent  were  not  jointly 
liable  in  that  suit,  and  required  the  plaintiff'  to  elect  which  one  he 
would  pursue  in  that  action,  so  that  the  other  might  be  stricken  out. 
The  other  cases  cited  were  suits  upon  contracts  so  made  by  the 
agent  that  the  contractee  might  elect  whether  the  agent,  or  the 
principal,  should  be  considered  the  party  with  whom  he  had  a  con- 
tract; and  the  courts  held  that,  having  carried  the  election  as  far 
as  a  judgment,  the  creditor  had  fixed  the  contract,  and  the  parties 
thereto,  permanently.  Bramwell,  J.,  in  the  case  in  3  H.  &  C.  997, 
places  his  decision  upon  the  ground  just  stated  and  upon  the  addi- 

^A  portion  of  the  opinion  is  omitted. 


LITY   PR 

deration  that  th^ 


Itered  the 

ie  the 


I 


)?SP 


ilie  author  cites  Priestly  v.  tt 
he  states,  but  adds  "there  is  mu... 
mere  taking  judi^mcrt  a.i;ainst  the  ?i 
(as  in  the  case  cited;  "should  not, 
fied,  extinguish  the  debt."     The  cv 
reasons  than  the  one  r-/' 
liability'  of  the  princip.-v 
Gennett  alfected  the  r; 
reason  for  holding  tha.  . 
Gennett  wholl)^  fails  to  pay 
no  collection  thereon.  (    ■  ■ 
the  company  the  damag 
Nothing  but  satisfaction  ^  , 
of  limitations,  can  release  ii 


■■ferred  . 
T  the  pooi.. 
'^r  such  circ 


uway  comp. 

^-'-'in    its    L.. 

■->  long  a- 
liable  to  mk 
fiisconduct  a-. 
^rty;  or  tiie 
nt  of  his  pri 


le 


We  hold  that  the  demurrer  to  this  deieuse  should  have'  been  sus 

tained." 


1904.       SUPRE.M."   CciUi: 

^  >y  Syckel,  J. — Ti  , 
court  of  Newark,  r 
band  for  horses  o\ 
brought,  sued  the  husband 
claim. 

After  judgment  against  t' 


•  ^  I  :■;    .i[»peal. 
dcHveriiig  the  1 
'li*  is    Mven  to  a; 


'(1. 
A"  here 


Bevmcr  v.  u'l:!-;,'! 
;     On  p:r. 


aSS 


rauas  en    tiitnau).  Ci..";nr:y. 

.aid  J.  D.  Gennelt  upon 
court  in  a  certain  ac' 
anri  J.  D.  Gennett  '■ 

'he  sum  of  ^ 
. .    .^  of  suit,  .fill 
dered  was  fc 
first  cause  of 
said  judgmer. 
tiff  has  r 
lendant  . 
The  tL 
and  lA)]^ 
his  < 
rept'. 
not  ' 


against 
in  said 
piaintifT 
cnt  was 
:  est  and 
.-.it  so  ren- 
ction  as  the 
i-arth.    That 
e  said  plain- 
est the  said  de- 

In  presenting 
'.:■■■-■  m  the  scope  of 

held  hi  <:ustomers  as  its 

■^'^  '-ivj    -.    trii.  .    i    he  presented  did 
jerein  furnish  fair  reason  to 
t-f  ot  lii  i\ad  full  right  to 

nands  o.  upon  him.    On 

ime  thac  lo  indication 


to   jU'„^. 

No  case 
We  are  rci< 
3  Hurlstone  '• 
62 ;  Jone.':- 
N.  Y.  35.. 
a  case  in  i  Di 
(I;  Cin.  Rep.  v 
:  in  that  suit. 
'  ^'irsue  in  u 

r  cases  . 

..t  the   conL.r. 

,  should  be  c, 
tract,  and  the  courts 
as  a  judgment,  the  cro 
thereto,  permanently. 
,i]':rps  lii^  'decision  upoi 


at  the  f'  die  act  of  the  company 

'^'  -  ■  '-'TTimit  the  fraud  they 

'.  severally.    In  such 

!;    >i!.usja.i;i.;H;  ;tgain.st  one,  could  not  be 

:•.    Is  the  rule  different  because  the  com- 

'id,  and  is  liable  only  because  Gennett 

:^f  his  authority?     Was  Maple  bound 

.ncipal,  and  having  carried  his  election 

lid  he  thereby  release  the  company? 

been  cited  avul  we  have  found  none. 

-  "-he  compn'      ■      '-riestly  v.  F^rnie, 

Patterso:  lesquin,  15  East 

'im.  501 ;  ^.ictkcr  v.  Claghorn,  44 

8z  Co..  ?.  C\r\_.  Sup.  Ct.  158,  and 

ret.    The  one 

r  not  jointly 

hich  one  he 

'-■■  v^M.  .  M..;^in.  uc:  stricken  out. 

n  contract.^  so  made  by  the 

whether   the  agent,  or  the 

'.V  with  whom  he  had  a  con- 

'  the  election  as  far 

■I act,  and  the  parties 

'.  case  in  3  H.  &  C.  997, 


LIABILITY    PRINCIPAL   TO   THIRD   PARTY.  489 

tional  consideration  that  the  judgment  against  the  agent  altered  the 
situation  of  the  principal.  But  Gennett  has  no  right  to  sue  the 
company  because  of  Maple's  judgment  against  him.  He  can  base 
no  action  upon  the  result  of  his  own  wilful  fraud. 

We  are  also  cited  to  Wharton  on  Agency  and  Agents,  §  473. 
The  author  cites  Priestly  v.  Fernie,  above  referred  to,  for  the  rule 
he  states,  but  adds  "there  is  much  reason  for  the  position  that  the 
mere  taking  judgment  against  the  agent  under  such  circumstances" 
(as  in  the  case  cited)  "should  not,  when  the  judgment  is  unsatis- 
fied, extinguish  the  debt."  The  case  before  us  presents  stronger 
reasons  than  the  one  referred  to  by  Wharton  for  holding  that  the 
liability  of  the  principal  continues.  Unless  Maple's  recovery  against 
Gennett  affected  the  rights  of  the  railway  company,  we  can  see  no 
reason  for  holding  that  recovery  a  bar  in  its  favor.  So  long  as 
Gennett  wholly  fails  to  pay  that  j  udgment ;  so  long  as  Maple  makes 
no  collection  thereon,  Gennett  must  remain  liable  to  make  good  to 
the  company  the  damage  occasioned  by  his  misconduct  as  its  agent. 
Nothing  but  satisfaction  by  him,  or  by  his  property;  or  the  statute 
of  limitations,  can  release  him  without  the  consent  of  his  principal. 
We  hold  that  the  demurrer  to  this  defense  should  have  been  sus 
tained.^ 


GREENBURG  v.  PALMIERI. 
1904.     Supreme  Court  of  New  Jersey.     71  N.  J.  L.  83. 

Van  Syckel,  J. — This  is  a  suit,  instituted  in  the  second  district 
court  of  Newark,  against  a  wife  for  supplies  purchased  by  her  hus- 
band for  horses  owned  by  her.  The  plaintiff,  before  this  suit  was 
brought,  sued  the  husband  and  recovered  a  judgment  for  the  same 
claim. 

After  judgment  against  the  husband,  the  plaintiff  learned  that  the 
husband,  in  making  the  purchases,  acted  as  the  agent  of  his  wife  in 
lier  business,  and  then  this  suit  was  commenced. 

From  the  judgment  recovered  against  the  wife  the  case  is  in  this 
court  by  appeal.  In  Elliott  v.  Bodine,  30  Vroom  567,  Judge  Nixon, 
in  delivering  the  opinion  of  the  court  of  last  resort,  says :  "Where 
credit  is  given  to  an  agent,  the  fact  of  agency  being  unknown  at  the 

'Accord:  Beymer  v.  Bonsall,  79  Pa.  St.  298;  Tew  v.  Wolfsohn,  77  App.  Div. 
(N.  Y.)  454.  On  page  457  of  the  latter  case  Laughlin,  J.,  says:  "I  see  no 
sound  basis  for  the  application  of  the  doctrine  of  election  in  cases  of  this  char- 
acter until  there  has  been  not  only  a  recovery  against  either  the  principal  or 
agent,  but  a  satisfaction  of  the  judgment  as  well." 

Contra:  Priestly  v.  Fernie,  3  H.  &  C.  977;  Kingsley  v.  Davis,  104  ]\Iass.  178; 
Codd  V.  Parker,  97  Md.  319. 


490  UNDISCLOSED    PRINCIPAL. 

time,  the  party  giving  credit  may  elect  which  he  will  hold  responsible, 
the  principal  or  the  agent ;  and  that  a  husband  may  act  as  the  agent 
of  his  wife." 

In  Yates  v.  Repetto,  36  Vroom  294,  Judge  Adams,  in  expressing 
the  views  of  the  court  of  errors  and  appeals,  says :  "The  authorities 
are  uniform  in  maintaining  the  doctrine  that  when  the  principal  is 
unknown  to  the  vendor  at  the  time  of  the  sale,  he  may,  upon  discov- 
ering the  principal,  resort  to  him  or  to  the  agent  with  whom  he  dealt 
at  his  election." 

To  make  an  election  binding,  the  party  electing  must  have  in- 
formation of  the  name  of  the  principal  in  addition  to  the  fact  of  the 
agency,  for  in  the  absence  of  such  knowledge  there  could  not  be  an 
election. 

In  this  case  the  plaintiff  had  notice  neither  of  the  agency  nor  of 
the  name  of  the  principal. 

If  the  plaintiff  sues  after  he  is  advised  of  the  agency,  it  is  an  elec- 
tion from  which  he  cannot  recede  ;^  but  where,  as  in  this  case,  he  re- 
covers a  judgment  against  the  agent  when  he  is  in  ignorance  of  the 
existence  of  a  principal,  an  action  will  lie  against  the  principal  unless 
he  discharges  the  judgment  against  the  agent.  Story  Ag.,  §  296; 
Mech.  Ag.,  §§  695,  700;  Beymer  v.  Bosnall,  79  Pa.  St.  298. 

The  judgment  below  should  be  afifirmed,  with  costs. 


BARRELL  et  al.  v.  NEWBY. 

1904.     Circuit  Court  of  Appeals.  Seventh  Circuit. 
127  Fed.  Rep.  656. 

Baker,  J. — If  a  merchant  parts  with  his  goods  to  one  whom  he 
knows  to  be  an  agent,  fails  tO'  require  a  disclosure  of  the  principal, 
and  charges  the  account  to  the  agent,  ordinarily  the  question  might 
be  raised  whether  the  merchant  has  not  deliberately  chosen  the  agent 
for  his  debtor,  and  thereby  precluded  himself  from  afterwards  pur- 
suing the  principal.  Patapsco  Ins.  Co.  v.  Smith,  6  Har.  &  J. 
(]\Id.)  166,  14  Am.  Dec.  268 ;  Ins.  Co.  of  Pa.  v.  Smith,  3  Whart.  520, 
But  the  ninth  averment  of  the  answer,  to  the  effect  that,  though 

^Cotitra:    Ferry  v.  Moore,  18  111.  App.  135.  , 

See  Raymond  v.  Crown  &  Eagle  Mills,  2  Met.  (Mass.)  319. 
"Knowledge  of  the  right  to  recover  from  the  principal  is  essential,  before 
suit  against  the  agent  may  be  regarded  as  an  election  to  look  to  the  latter 
alone  for  payment ;  without  knowing  who  the  principal  was,  or  the  fact 
of  agency,  an  intelligent  election  was  impossible.  To  constitute  an  election, 
there  must  be  something  to  indicate  an  intention,  with  full  knowledge  of  the 
facts,  to  give  sole  credit  to  the  agent  and  to  abandon  all  claim  against  the 
principal."   Ladd,  J.,  in  Smith  Groc.  Co.  v.  Potthast,  109  la.  413,  418. 


V   PRINCIPAL   TO   THIRD   PARTY. 


plaintiffs  knew  1  cd-i  \\ 


pnri- 

....  in  the 

suggested 

—  as  ad- 

f  that 


s  never  required  to  elect 
.  has  concurrent  rights  ■  .f 
of  a  satisfaction  bv  on, 

-.c-- tn  Fn-'-?''  -■  ■'    -   ■ 


H:, 


If  T 
that  h^ 

ve  accepted  the  order  a; 
vLirred  no  liabiHty;  or  tliey 
their  debtor  and  have  infer 
and,  if  Todd  had  made  i 
defendant  not ;  bnt,  in  <'■■ 

■?y  could  not 

is  true  that  j;. 
on  the  joint  and  several  conirai 
no  pretense  of  such  a  cnfi  r   ■ 
that  they  accepted  and 
'--^.nsaction 

"■3  not  >; 
a.nd  princi; 
rr'*dit,  one 


disco\ 

nsidcr  his  debtor ; 

an.1  that  nothing 

♦:  one  (ac- 


Mist  iV..'. 
(1     of    C'   . 

OS. 

On  the  other  hand     ]•  f'-r; ': 

>;  I'i^  isls  that  such  a  sello: 

:)g.the  principal 
iipare  the  standi; 
lose  whom  he  v 

Ac  time  to  • 

'-•■  ••'t,  and  th^.. 
;  abandon  b 
i.    And  defencia: 

'/",""■''■                ' 

•  nt. 

lodd  would  have  in- 


r  the  seller  asce. 
. .  ■  1  s  the  goods  and 
e  he  seeks  to  exact  ■ 


t  that  t! 


the  principal  or  the  age 
of  hi.-      ••"    '• 

Iri    '  Repetto. 

\Vi>  of  the  CO!' 
Iform  in  m?. 
iink-nown  to  the  ve- 
ering the  princ!'-,i1 
at  his  election. 

To  niake  ar 
formation  nf  t 


that  a  h 


the  ag-ent 


expressing 

lorities 

I  ipal  is 

upon  discov- 


'•■!U'j.i  have  m- 
thc  fact  of  the 
.'uld  not  be  an 


l<)0. 


Appea 


agency  nor  of 

is  an  elec- 

ase,  he  re- 

.nce  of  the 

.rincipal  unless 

V  Ag.,  §  296; 

!.    298. 


and  charge 
1-e  raised  wt'Cii 
"^r  his  debtor, 


JJut  :. 


>  to  one  whom  he 

:o  of  the  principal, 

the  question  might 

:    the  agent 

-vards  pur- 

Har.   &   J. 

\'\  hart.  520. 

•  -ttect  that,  thougfh 


;  ;'a :   i^  erry  v. 


>{  agency,  •. 


vTnss.)  3Jij 

:I  is  trstciiiiai,  before 

to  look  to  the  latter 

■vas,   or   the  fact 

tiite  an  election, 

of  the 

jst  the 


LIABILITY    PRINCIPAL   TO   THIRD   PARTY.  49I 

plaintiffs  knew  Todd  was  acting  as  an  agent  for  an  undisclosed  prin- 
cipal, the  custom  of  the  trade  authorized  them  to  look  to  him  in  the 
first  instance,  prevents  defendant  from  claiming  that  the  suggested 
question  is  available  here,  and  leaves  plaintiffs  in  a  position  as  ad- 
vantageous as  that  of  a  merchant  who  sells  on  credit  in  the  belief  that 
the  purchaser  is  acting  for  himself. 

Plaintiffs'  contention  is  that  such  a  seller,  on  discovering  the  prin- 
cipal, is  never  required  to  elect  whom  he  will  consider  his  debtor ; 
that  he  has  concurrent  rights  of  action  against  both  ;  and  that  nothing 
short  of  a  satisfaction  by  one,  or  at  least  a  judgment  against  one  (ac- 
cording to  English  cases,  which  seem  to  be  based  on  the  English  rul- 
ings that  a  judg-ment  against  one  joint  tort  feasor  is  a  satisfaction  as 
to  all),  will  exhaust  his  right  to  pursue  the  other.  In  support  of  this 
proposition,  and  of  collateral  arguments,  plaintiffs  adduce  many 
cases. 

On  the  other  hand,  defendant  insists  that  such  a  seller,  on  discov- 
ering the  principal,  may  take  a  reasonable  time  to  investigate  and 
compare  the  standings  of  principal  and  agent,  and  thereupon  must 
choose  whom  he  will  hold  as  his  debtor  and  abandon  his  right  to 
choose  the  other ;  and  that  he  cannot  hold  both.  And  defendant  cites 
numerous  authorities  as  a  basis  for  his  argument. 

If  Todd,  when  placing  the  order  with  plaintiffs,  had  informed  them 
that  he  was  simply  acting  as  agent  for  defendant,  plaintiffs  could 
have  accepted  the  order  as  defendant's,  and  Todd  would  have  in- 
curred no  liability ;  or  they  could  have  refused  to  take  defendant  as 
their  debtor  and  have  informed  Todd  that  they  would  look  to  him. 
and,  if  Todd  had  made  no  objection,  he  would  have  been  bound  and 
defendant  not ;  but,  in  dealing  with  the  agent  of  a  disclosed  principal, 
they  could  not  have  held  both  without  an  agreement  to  that  effect. 
It  is  true  that  plaintiff's  could  have  declined  to  take  the  order  except 
on  the  joint  and  several  contract  of  Todd  and  defendant;  but  there  is 
no  pretense  of  such  a  contract,  for  the  averment  of  the  complaint  is 
that  they  accepted  and  acted  on  defendant's  order ;  and  the  bare 
transaction  of  a  merchant's  selling  to  the  agent  of  a  known  principal 
does  not  establish  a  joint  and  several,  or  several  liability  of  agent 
and  principal,  but  evidences  only  one  contract,  one  liability,  one 
credit,  one  debtor,  whose  indentity  is  determined  by  the  seller's  elec- 
tion, which  he  must  make  at  the  time. 

Respecting  election,  what  difference  in  reason  does  it  make 
whether  the  seller  ascertains  the  identity  of  the  principal  before  he 
delivers  the  goods  and  extends  the  credit,  or  after  delivery  but  be- 
fore he  seeks  to  exact  payment?  In  the  first  place,  we  understand 
plaintiffs  to  agree  that  the  seller  must  elect.  In  the  second,  the  seller 
manifestly  has  passed  on  the  credit  of  but  a  single  person.  If,  before 
payment,  he  finds  out  who  the  principal  is.  it  is  just  that  he  should 
be  able  to  hold  the  agent,  for  the  agent  offered  his  own  credit  and  it 
was  accepted.     It  is  also  just  that  the  seller  should  be  permitted  to 


492  UNDISCLOSED    PRINCIPAL. 

abandon  the  right  that  he  had  in  the  first  instance  to  pursue  the 
ag-ent,  and  to  hold  the  principal,  for  the  contract  of  purchase  was  in 
reality  the  principal's.  When,  after  delivery,  but  before  seeking  to 
exact  payment,  the  seller  learns  the  identity  of  the  principal,  he  has 
an  opportunity  for  investigating  and  comparing  the  standings  of 
agent  and  principal,  just  as  he  would  have  had  if  he  had  known  the 
principal  before  delivery.  We  apprehend  no  rule  of  law  that  war- 
rants the  conclusion  that  the  seller  must  elect  in  the  one  case  and  not 
in  the  other.  We  perceive  no  solid  reason  why  the  law,  in  behalf  of 
the  seller,  who  in  both  cases  has  really  contemplated  and  contracted 
for  a  single  credit  only,  should  in  the  one  case  more  than  the  other 
create  a  contract  under  which  the  agent  and  principal  stand  as  joint 
and  several,  or  several,  obligors.  The  decision  in  Beymer  v.  Bon- 
sall,  79  Pa.  298,  and  expressions  in  some  other  cases,  to  the  effect 
that  one  who  sells  to  the  agent  of  an  undisclosed  principal  may,  on 
discovery  of  the  principal,  pursue  either  or  both  until  he  has  obtained 
satisfaction  (as  though  they  were  joint  tort  feasors),  do  not  meet 
our  approval. 

Objection  is  made  to  the  answer  on  the  ground  that  the  issue  of 
election  or  no  election  is  one  that  must  be  determined  by  the  jury 
from  the  evidence  and  the  instructions  of  the  court.  If  it  were  per- 
missible for  a  defendant  to  tender  the  issue  by  the  naked  averment 
that  plaintiff  elected  to  hold  the  contract  as  the  agent's,  and  if,  under 
such  an  answer,  the  uncontradicted  evidence  establish  acts  of  the 
plaintiff  from  which  but  one  conclusion  could  legally  be  deduced, 
then  the  court  would  have  the  right  to  direct  the  verdict ;  and,  if  the 
same  acts  be  set  forth  in  an  answer  and  confessed,  we  think  the  court 
may  likewise  draw  the  conclusion. 

bo  plaintiffs'  acts  constitute  an  election  ?  In  two  instances  plain- 
tiffs procured  conditional  executions  in  advance  on  their  solemn  dec- 
laration to  the  courts  that  the  broken  contract  was  Todd's — not 
Todd's  and  the  defendant's,  but  Todd's.  In  another  instance  plain- 
tiffs acted  as  court  and  sheriff,  and  turned  Todd's  money  into  their 
own  till.  Now  they  declare  with  equal  solemnity  that  the  same 
broken  contract  was  defendant's — not  defendant's  and  Todd's,  but 
defendant's.  We  do  not  mean  to  assert  that  the  mere  bringing  of _  an 
action  against  Todd  would  be  inconsistent  with  their  proceeding 
later  against  defendant.  If  the  action  were  begun  before  they 
learned  of  defendant's  principalship,  certainly  they  should  be  per- 
mitted to  dismiss,  and  sue  defendant.  And  if  they  proceeded  against 
Todd  by  reason  of  mistake  or  fraud,  or  the  like,  they  might  seek  re- 
lief from  their  act,  give  up  the  chase  they  had  entered  upon,  and 
return  to  the  cross-roads.  But  here,  under  no  misapprehension  of 
comparative  standings,  but  with  full  knowledge  of  the  whole  truth 
of  the  situation,  plaintiffs  not  merely  seized  Todd's  money 
on  the  basis  that  the  contract  was  his,  but  they  insist  upon  their 
right  to  retain  it,  and  to  say  that  the  contract  is  Todd's,  throughout 


LIABIL 

lie  in  which 

;      ,;rr'.s  but  one  Ui, 
, '  ■.      'is  urge  that, 
f  '    I  with  T 

1  require    . 
lib.  arc  confusing  el 
•  er  of  remedies  or  of  > ; . 
of  the  defendant,  but  is  found 
plaiiitiflf  to  trifle  with  the  courL..     ..  , ' 
hnn^'.  grows  out  of. a  consideration  of 
are  distinct  defenses,  :;'   '  '        '        ' 
it  would  be  inequitabU 

if  he  shows  that  the  [  law  tlic 

f  two  courses,  has  ta'i  iiie  one  t; 

i'im.^ 
Til  A  i^vlgment  1=  :-<tT;v.r..-:i 


493 
To 

be 
'iqt 


.ection  3. — Liability  of  Third  Party  to  Agent. 
CARTER  V.  SOUTHER>'  '■  ''' 
ipcxD,     Supreme  Cou; 

Cobb,  J. — Carter  sued  tlie  r;;  ly  for 

rom  the  breach  of  a  contr"  *  'i^r^'n  whir' 

ntered  into  with  the  plai^^  the  trial  tb. 

1  evidence  a  receipt  signe  ■  '  ' 

he  following  is  a  copy :  ": 
rticles  in  apparent  good  o 

jupon  attached,  to  be  trci 
etting  forth  the  articles  sh 
mce  from  the  point  from 

nation  was  thirty  miles : 
wenty-four  hours,  which  ^ 

ew  and  in  good  conditit: 

*  "Election  implies  a  delibe'- 

1",  or  a  particular  n  •  ■ 
Co.  V.  Colombian  L: 

discussion   of  doctrnir 
'^ee  also  Miss.  Valley  C 

note  in  17  Harv    Law  Rev.  414,  enti 

nr  TTpnisr!'"-.-;!    P:  'vc'ii.'l  " 


OMPANY 


'  cept  one" 

>,  .1., ' 

ii2   Ky. 
Rep.  894, 

?medy  against 


T''NDI?Cr,OSFr>   rRIK 


.  .....   >ig-ht  that 

i:_.. -liij   the 

and  to  hold  the  ; 

ise  was  in 

•'  :;'r.   the  principal's. 

seeking  to 

exact  payment,  the  <ie]i 

jial,  he  has 

an  opportanity   fo^ 

-•  and  V 

m  dings  of 

at^ent  and  principal 

■  o-!d  b;. 

1  known  the 

[■rincipal  before  de 

iaw  that  war- 

rants  the  conchi'.i^ 

le  case  and  not 

in  the  other.    ^^ 

^v,  in  behalf  of 

the  seller,  who 

■  cMiiy   '."'.•  iii.  ■ 

.md  contracted 

for  a  single  cr 

'n  the  one  c; 

than  the  other 

create  a  cm 

;c  agent 

stand  as  joint 

and  sever.' 

■.    The  . 

:ymer  v.  Bon- 

sail,  79  P. 

■IS  in  soj 

^■,  to  the  effect 

tluit   riiic 

''F  an  \\ 

ncipal  may,  on 

le  has  obtained 

lo  not  meet 

-  answer  oa  '■. 

■i  that  the  issue  of 

■ne  that  mnsi 

mined  by  the  jury 

from  Lt. 

iistructi: 

rt.  ■  If  it  were  per- 

missih 
that  pi. 
such  ai.  -. 
plaintiff  f: 


i>H  r  ;he  naked  averment 

';  acrent's,  and  if,  under 
UI-.  ..vv,  ,  v.uviice  establish  acts  of  the 
conclusion  could  legally  be  deduced, 
'  ight  to  direct  the  verdict ;  and,  if  the 
« er  and  confessed,  we  think  the  court 


tiffs  proci^ 
laration  to   c.. 
Todd's  and  thv 
tiffs  acted  as  c 
own  till.     Nov 
broken  contrac 
defendant's.    \  > 
action  against  To 
'  '■'  '    'ri gainst  defer 
'  of  defenda: 
;:'i.n  a  to  dismiss,  arui 
i'odd  by  reason  of  mi  si 
'  ^m  their  act,  give  i. 
to  the  cross-roads, 
comparative  standings,  bu' 
of    the    situation,    plaintit:.  . 

on  the  basis  that  the  contract  wa 


n  election?    Tn  two  instances  plain- 
ions  in  advance  on  their  solemn  dec- 
broken   contract  was  Todd's — not 
Todd's.    In  another  instance  plain- 
•  turned  Todd's  money  into  their 
equal  solemnity  that  the  same 
lefendant's  and  Todd's,  but 
'i:;t  the  mere  bringing  of  an 
'  '-ir  proceeding 


11   before   they 

should  be  per- 

"     ded  against 

^ht  seek  re- 

icd  upon,  and 

..pprehension  of 

of  the  whole  truth 

ed    Todd's    money 

V  insist  upon  their 


LIABILITY   THIRD   PARTY    TO   AGENT.  493 

the  time  in  which  they  assert  that  the  contract  is  defendant's.  To 
our  minds  but  one  interpretation  can  be  given  to  this  conduct. 

Plaintiffs  urge  that,  inasmuch  as  the  answer  fails  to  aver  that  de- 
fendant settled  with  Todd  before  they  sued  defendant,  it  would  be 
no  hardship  to  require  defendant  to  pay  them.  It  seems  to  us  that 
plaintiffs  are  confusing  election  with  equitable  estoppel.  Election, 
whether  of  remedies  or  of  defendants,  has  no  regard  to  the  situation 
of  the  defendant,  but  is  founded  on  a  public  policy  that  forbids  a 
plaintiff  to  trifle  with  the  courts.  Equitable  estoppel,  on  the  other 
hand,  grows  out  of  a  consideration  of  the  defendant's  state.  They 
are  distinct  defenses,  and  he  who  pleads  election  need  not  show  that 
it  would  be  inequitable  to  permit  the  plaintiff  to  recover  ;  it  is  enough 
if  he  shows  that  the  plaintiff,  having  by  law  the  right  to  take  either 
of  two  courses,  has  taken  and  holds  to  the  one  that  leads  away  from 
him.^ 

The  judgment  is  affirmed. 


Section  3. — Liability  of  Third  Party  to  Agent. 

CARTER  V.  SOUTHERN  RAILWAY  COMPANY. 

1900.     Supreme  Court  of  Georgia,     hi  Ga.  38. 

Cobb,  J. — Carter  sued  the  railroad  company  for  damages  resulting 
from  the  breach  of  a  contract  of  shipment  which  the  defendant  had 
entered  into  with  the  plaintiff.  On  the  trial  the  plaintiff  introduced 
in  evidence  a  receipt  signed  by  an  agent  of  the  defendant,  of  which 
the  following  is  a  copy :  "Received  from  W.  R.  Carter  the  following 
articles  in  apparent  good  order,  contents  and  value  unknown,  as  per 
coupon  attached,  to  be  transported  to  W.  R.  Carter,  McRae,  Ga.," 
setting  forth  the  articles  shipped.  The  plaintiff  testified  that  the  dis- 
tance from  the  point  from  which  the  goods  were  shipped  to  their  des- 
tination was  thirty  miles ;  that  they  should  have  been  delivered  in 
twenty-four  hours,  which  was  a  reasonable  time ;  that  the  goods  were 
new  and  in  good  condition  when  delivered  to  the  defendant ;  that 

^  "Election  implies  a  deliberate  intention, — a  definite  purpose  to  accept  one 
debtor,  or  a  particular  remedy,  in  lieu  of  another."  Wallace,  Cir.  J.,  in  Atlas 
S.  S.  Co.  V.  Colombian  Land  Co.,  102  Fed.  Rep.  358,  360. 

See  discussion  of  doctrine  of  election  in  Hoffman  v.  Anderson,  112  Kj'. 
893.  See  also  Miss.  Valley  Const.  Co.  v.  Abeles  (Ark.),  112  S.  W.  Rep.  894, 
896. 

See  note  in  17  Harv.  Law  Rev.  414,  entitled  "Election  of  Remedy  against 
Agent  or  Undisclosed  Principal." 


494  UNDISCLOSED    PRINCIPAL. 

they  were  not  delivered  by  it  at  the  point  to  which  they  were  shipped 
until  twenty-five  days  had  elapsed  from  the  time  they  were  delivered 
to  the  defendant ;  and  that  when  delivered  some  of  the  goods  were  in 
such  a  damaged  condition  that  they  were  rendered  worthless,  and  all 
of  them  were  more  or  less  damaged.  Just  before  leaving  the  wit- 
ness-stand the  plaintiff  stated :  "The  goods  belonged  to  my  wife, 
Mary  Carter.  She  owned  them,  and  I  had  the  goods  in  my  charge 
as  her  agent."  There  being  no  further  evidence  for  the  plaintiff, 
the  court,  upon  motion  of  defendant's  counsel,  granted  a  non-suit  on 
the  ground  that  the  goods  alleged  to  have  been  damaged  did  not  be- 
long to  the  plaintiff  but  to  his  wife.  To  this  judgment  the  plaintiff 
excepted.  The  question,  therefore,  presented  for  decision  is  whether 
or  not  the  plaintiff  could  maintain  the  action  in  his  own  name.  It  is 
an  elementary  principle  that  an  action  on  a  contract  must  be  brought 
in  the  name  of  the  party  in  whom  the  legal  interest  is  vested ;  and 
that  the  legal  interest  in  a  contract  is  in  the  person  to  whom  the 
promise  is  made  and  from  whom  the  consideration  passes.  15  Enc. 
P.  &  P.  499,  500 ;  Civil  Code,  §  4939.  In  the  present  case  the  plain- 
tiff, although  in  reality  he  occupied  the  relation  of  agent  of  his  wife 
to  take  charge  of  the  goods  shipped,  was  named  both  as  the  con- 
signor and  consignee  in  the  contract  of  shipment,  with  no  reference 
whatever  therein  to  the  fact  of  his  agency.  Under  such  circum- 
stances the  action  could  be  maintained  in  his  own  name.  Generally, 
it  is  true,  an  agent  has  no  right  of  action  upon  a  contract  made  by 
him  in  behalf  of  his  principal,  but  he  has  a  right  of  action  in  his  own 
name  "where  the  contract  is  made  with  the  agent  in  his  individual 
name,  though  his  agency  be  known."  Civil  Code,  §  3037  (3).  Cer- 
tainly the  action  could  be  maintained  where  the  fact  of  agency  and 
the  name  of  the  principal  are  both  concealed  by  the  agent.  In  such 
a  case  the  agent  is,  in  contemplation  of  law,  the  real  contracting 
party,  to  whom  the  promise  of  the  other  party  was  made  and  who  is 
entitled  to  enforce  it.     Mechem  Ag.,  §  755;  Story  Ag.   (9th  ed.), 

§  393- 

But  the  plaintiff  was  the  consignor  of  the  goods  shipped.  The 
contract  was  made  with  him,  and  he  is  primarily  liable  for  the  trans- 
portation charges.  The  carrier  dealt  with  him  as  the  owner  of  the 
goods,  and  could  not,  in  an  action  by  the  plaintiff  to  recover  the 
goods,  dispute  his  title,  unless  the  title  of  the  real  owner  was  sought 
to  be  enforced  against  the  carrier.  Civil  Code,  §  2286.  In  the  case 
of  Haas  v.  Railroad  Company,  81  Ga.  792,  suit  was  brought  by  Haas 
upon  a  contract  or  bill  of  lading  made  by  the  defendant  with  one 
Ayres.  It  was  held  that  "the  bill  of  lading  for  the  flour  not  having 
been  indorsed  to  plaintiff  by  the  party  in  wdiose  favor  it  was  issued, 
the  former  could  not  maintain  an  action  against  the  company  upon 
it."  It  appears  from  the  record  in  that  case  that  Ayres  was  the  con- 
signor and  Haas  the  consignee.     The  present  Chief  Justice  says  in 


495 

>f  lading-  was 

' 'ne,  Haas, 

between 


lie  may  not  be  the  actual 
w.c  privity  of  contract  betww.. 
-     (cient  foundation  on  which  to  base 

'  by  the  authoritie    ''-  '      ' 
•   A  owner,  recoven- 
;';tract  of  carriag-e, 
.      1  the  consignor  i 
•  'St.    It  would  seei;  from  this,  i": 

the  consignor  for  i>t  would  h^  :. 

'     on  by  the  owner  le  him.     Tb. 

_  urts.  have,  so  far  a:   \.  -Ihered  to  .1;- 

that  an  action  for  a  bre,  '^e  made  wit! 

consignor  may  be  maintained  b}  hui;.  La  L'avu  v.  James,  5  Burr. 
2680,  a  decision  rendered  in  T770,  it  n'H'^  held  thn.t  "Action  lies 
against  carrier  in  name  of  c^  him  and  was 

to  pay  him."    The  question  .  ^  .      :  case,  and  the 

court  reached  the  conclusion  'ed.     Lord  Mansfield  said. 

in  the  opinion  which  he  ""^'  --se:    "Thi'^  '"  •"     --': 

upon  the  agreement  bei  md  the 

'  intiffs  were  to  pay  him.  '      • 

vhe  persons  who  agreed 
decision,  as  above  stated,  w^ 
courts,  and  there  being  in  t 
the  rule  therein  announced,  : 
ute,.the  law  of  this  state." 
In  Moore  V.  Wilson,  i  Tei 
case  just  referred  t^  > 
i  it  was  immaterial  v 
-^ignor  or  the  consignee, 
■  'er  for  the  hire.    In  Jos  , 

action  by  the  consignor  .  i 

Lord  Ellenborough,  who  n. 

1  lies.    Tbere  is  a  privity 


iKJt  ClCilV 

.■xx>: 

t.i-    w-l 

"y-five  da 

y.s^ 

ed  frdn 

lo  tla 

311 C ''I 

.  m  were  mo: 

.....  otand  the  nl.i; 

Mary  Carter. 

as  her  agent. 

the  court,  upoi 

the  ground  tli 

long  to  the  v 

excepted. 

or  not  fl: 

an  e.]'. 

action  ( 

'^r^-\^    flu 

(he  T) 
a  ca  ■ 
party,  u- 
entitled  t' 

-  393- 

But  the  plr, 
contract  was  r 

rlation  char.^ 
-.  and  could 
:.    ■•  -.  dispute  his 
to  be  enforced  ag:;' 
of  Haas  v.  Railroad  (. 
upon  a  contract  or  bi', 
Vyres.    It  was  held  thai. 
1)een  indorsed  to  plaintiff  • 
the  former  could  not  niaii' 
it."    It  appears  from  the  u 
signor  and  Haas  the  cotist 


•  :>  ■:  oiupped 

i'c  delivered 

in 

.  all 

ig  ilie  wit- 

mv  wife, 

charge 

v  ijlaintifif, 

non-suit  on 

did  not  be- 

Jie  plaintiff 

ision  is  whether 

vvn  name.    It  is 

riust  be  brought 

-  is  vested ;  and 

1  a  to  whom  the 

asses.     15  Enc. 

"  case  the'plain- 

of  his  wife 

as  the  con- 

nent,  with  no  reference 

Under  such  circum- 

own  name.    Grcnerally, 

•  !..  ■<    .'  ..  up<3n  a  contract  made  by 

ut  he  has  a  right  of  action  in  his  own 

lade  with  the  agent  in  his  individual 

-^wn."   Civil  Code,  §  3037  (3).    Cer- 

ihe  fact  of  agency  and 

i  by  the  agent.    In  such 

ion  of  law,  the  real  contracting 

)ther  party  was  made  and  who  is 

r-,  §  755;  Story  Ag.  (9th  ed.), 

r>{  the  goods  shipped.     The 
liable  for  the  trans- 
it- the  owner  of  the 
to  recover  the 
ner  was  sought 
<6.    In  the  case 
■  •  i-fht  by  Haas 
iit  with  one 
iiour  not  having 
ir  it  was  issued, 
I  the  company  upon 
■■'  Ayres  was  the  con- 
M  Chief  Justice  says  n 


LIABILITY   THIRD    PARTY    TO   AGENT.  495 

the  opinion :  "The  record  does  not  show  that  this  bill  of  lading  was 
assigned  or  indorsed  by  Ayres  to  Haas.  This  being-  true,  Haas, 
under  our  code,  could  not  bring  suit  on  the  contract  made  between 
the  railroad  company  and  Ayres."  The  courts  of  both  this  country 
and  England  are  now,  with  a  few  exceptions,  all  agreed  that  where 
the  consignor  makes  the  contract  of  shipment  with  the  carrier,  he 
may  bring  an  action  for  loss  of  or  injury  to  the  consignment,  al- 
though he  may  not  be  the  actual  owner  of  the  property.  In  such  a 
case  the  privity  of  contract  between  the  carrier  and  consignor  is  a 
sufficient  foundation  on  which  to  base  the  action.  It  is  also  well  set- 
tled by  the  authorities  that  where  a  consignor,  who  is  himself  not  the 
real  owner,  recovers  damages  from  the  carrier  for  a  breach  of  the 
contract  of  carriage,  the  recovery  enures  to  the  benefit  of  the  owner, 
and  the  consignor  is  regarded  simply  as  the  trustee  of  an  express 
trust.  It  would  seem  to  follow  necessarily  from  this,  that  a  recovery 
by  the  consignor  for  a  breach  of  the  contract  would  be  a  bar  to  an 
action  by  the  owner  in  tort  for  the  injury  done  him.  The  English 
courts  have,  so  far  as  we  are  aware,  uniformly  adhered  to  the  rule, 
that  an  action  for  a  breach  of  a  contract  of  carriage  made  with  the 
consignor  may  be  maintained  by  him.  In  Davis  v.  James,  5  Burr. 
2680,  a  decision  rendered  in  1770,  it  was  held  that  "Action  lies 
against  carrier  in  name  of  consignor,  who  agreed  with  him  and  was 
to  pay  him."  The  question  was  squarely  made  in  that  case,  and  the 
court  reached  the  conclusion  above  indicated.  Lord  Mansfield  said, 
in  the  opinion  which  he  rendered  in  that  case :  "This  is  an  action 
upon  the  agreement  between  the  plaintififs  and  the  carrier.  The 
plaintiffs  were  to  pay  him.  Therefore  the  action  is  properly  brought 
by  the  persons  who  agreed  with  him  and  were  to  pay  him.  "This 
decision,  as  above  stated,  was  uniformly  adhered  to  by  the  English 
courts,  and  there  being  in  this  state  no  statute  law  to  conflict  with 
the  rule  therein  announced,  it  became,  by  force  of  our  adopting  stat- 
ute, the  law  of  this  state." 

In  Moore  v.  Wilson,  i  Term.  Rep.  659,  the  doctrine  announced  in 
the  case  just  referred  to  was  reaffirmed ;  and  the  court  held  further 
that  it  was  immaterial  whether  the  hire  was  to  be  paid  by  the  con- 
signor or  the  consignee,  as  the  former,  was,  in  law,  liable  to  the  car- 
rier for  the  hire.  In  Joseph  v.  Knox,  3  Camp.  320,  it  was  held  that 
an  action  by  the  consignor  would  lie.  The  opinion  was  rendered 
by  Lord  Ellenborough,  who  said :  "I  am  of  opinion  that  this  action 
well  lies.  There  is  a  privity  of  contract  established  between  these 
parties  by  means  of  the  bill  of  lading.  That  states  that  the  goods 
were  shipped  by  the  plaintiffs,  and  that  the  freight  for  them  was  paid 
by  the  plaintiffs  in  London.  To  the  plaintiffs,  therefore,  from  whom 
the  consideration  moves,  and  to  whom  the  promise  is  made,  the  de- 
fendant is  liable  for  the  non-delivery  of  the  goods.  After  such  a  bill 
of  lading  has  been  signed  by  his  agent,  he  cannot  say  to  the  shipper 


496  UNDISCLOSED    PRINCIPAL, 

they  have  no  interest  in  the  goods,  and  are  not  damnified  by  his 
breach  of  contract.  I  think  the  plaintifTs  are  entitled  to  recover  the 
value  of  the  goods,  and  they  will  hold  the  sum  recovered  as  trustees 
for  the  real  owner."  In  Dunlop  v.  Lambert,  6  CI.  &  F.  *6oo,  the 
House  of  Lords  held :  "Though,  generally  speaking,  where  there  is 
a  delivery  to  a  carrier  to  deliver  to  a  consignee,  the  latter  is  the 
proper  person  to  bring  the  action  against  the  carrier,  yet  if  the  con- 
signor make  a  special  contract  with  the  carrier,  such  contract  super- 
sedes the  necessity  of  showing  the  ownership  in  the  goods,  and  the 
consignor  may  maintain  the  action,  though  the  goods  may  be  the 
property  of  the  consignee."  The  "special  contract"  referred  to  in  the 
above  quotation  was  simply  a  bill  of  lading  declaring  that  the  goods 
were  to  be  delivered  to  Matthew  Robson,  "freight  for  the  said  goods 
being  paid  by  William  Dunlop  &  Co.,"  the  plaintiffs.  The  case  of 
Dawes  v.  Peck,  8  Term  Rep.  330,  is  sometimes  cited  as  authority 
for  a  contrary  rule.  That  case  is  thus  commented  upon  and  distin- 
guished by  Judge  Turley  in  the  case  of  Carter  v.  Graves,  9  Yerger 
445,  450:  In  that  case  "an  action  on  the  case  was  brought  by  a  con- 
signor against  a  common  carrier  for  not  safely  carrying  according  to 
his  undertaking,  in  consideration  of  a  certain  hire  and  reward  to  be 
therefor  paid,  two  casks  of  gin  from  London  to  one  Thomas  Ady,  at 
Hillmorton,  in  Warwickshire.  The  court  determined  that,  if  a  con- 
signor of  goods  deliver  them  to  a  particular  carrier  bv  the  order  of 
a  consignee,  and  they  be  afterwards  lost,  the  consignor  cannot  main- 
tain an  action  against  the  carrier  and  that  the  action  can  only  be 
maintained  by  the  consignee.  In  this  case  there  is  no  contract  with 
the  consignor  by  the  carrier  for  the  delivery  of  the  articles ;  the 
freight  is  not  paid  by  him ;  the  property  is  delivered  to  a  carrier  spec- 
ified by  the  consignee ;  and,  more  than  all,  the  court,  in  the  opinions 
delivered,  refer  to  the  cases  of  Davis  and  Jordan,  5  Burr.  2680.  and 
Moore  and  others  v.  Wilson,  i  Term  Rep.  659,  and  recognize  them 
as  sound  authority." 

A  leading  American  case  is  Blanchard  v.  Page,  8  Gray  281,  where, 
after  an  elaborate  review  of  the  authorities.  Chief  Justice  Shaw 
reached  the  conclusion  that  "the  shipper  named  in  a  bill  of  lading 
may  sue  the  carrier  for  an  injury  to  the  goods,  although  he  has  no 
property,  general  or  special,  therein."  The  reasoning  upon  which 
this  ruling  is  based  seems  to  be  unanswerable,  and  the  decision  ought 
to  be  accepted  as  decisive  of  this  question.  It  must  not  be  lost  sight 
of  that  the  present  action  was  based  upon  a  contract.  If  the  action 
had  been  based  upon  the  tort  of  the  carrier  in  delivering  the  goods 
in  a  damaged  condition,  then  a  question  entirely  different  from  that 
involved  in  the  present  case  would  be  raised.  In  such  a  case  it  would 
seem  that  the  right  of  action  is  to  recover  for  the  injury  in  the  inter- 
est or  right  in  the  property,  and  the  shipper,  if  not  the  owner,  could 
not  brinsf  such  an  action.     The  distinction  between  such  a  case  and 


?vD    PARTY   TO   AGENT.  497 

•ne  like  the  :  as  pointed  out  in  Fi  >mpany, 

'    '   ■       "  ithorize 

'>.  there 
let'd  LfC  no  exjjiesb  couiia  t'le 

iction  may  be  maintained  ^  j-v- 

r>  an(i  receipt  of  the  goods  for  c  action  c  aas 

iieen  begun  by  the  consignee;  an>  '"nor  v -  ^  the 

■-um  recovered  in  trust  for  the  c  irter  v.  Graves, 

9  Yerg.  445,  it  was  held:  "A  consigii'^r  i,   -  "  '  """ 

the  case  for  the  loss  or  injury  of  the  prt 
showing  that  he  has  a  general  1  right  i 

all  cases  maintain  an  action  oj  -it  upon 

the  property  safely,  he  having  mani-  liie  same,  ano 
bound  for,  the;  consideration."    In  T'     i  er  v.  Raihv  j 
Wis.  81,  91,  it  was  said:  "The  si  i  party  in  iv^ 

—  ract,  and  it  does  not  lie  with  Im<-  v  -ho  made  u  v 

him,  to  say,  upon  a  breach  of  it,  t'  .ot  entitled  tc 

amages,  unless  it  be  shown  that  tr.  ee  objects  ;  for,  \.  >. 

hat,  it  will  be  presumed  that  the  ..  as  commenced  and  >; 

cuted  with  the  knowledge  and  consent  oi  the  consignee,  and  for 

enefit.  The  consignor  or  shipper  is,  by  operation  of  the  rule,  re- 

;cd  as  a  trustee  of  an  express  trust,  like  a  factor  or  other  mercan- 

:,<..-  agent  who  contracts  in  his  own  name  on  behalf  of  his  principal.'' 

rVnotiier  well-considered  case,  in  which  an  elaborate  review  of  the  au- 

ities  is  made,  is  Southern  Exr  iny  v.  Crr-"'"       -  ''•■-^ 

In  Great  Western  Railroad  C  -Comas 

ruled  :  "Where  goods  are    ' 

the  consignor  may  sue  fo 

e.    He  has  such  a  special  proi 

L  of  action.     So  may  the  rea' 

<:C.     It  was  ruled  further  in 

-^  first  obtains  damage-    ■'  ■  "" 

,e  others. 
,  e  have  not  und' 

'  this  question.     . 

(ecisions  above  referred  v 

made  in  the  present  cn'^e 

8)  ;  Dows  V.  Cobb,  12  ' 

to.  539;  Atchison  v.  Ra 

idine,  ii  Harr.  &  McH.  4 

'la.  loi  ;  Mo.  Pac.  Rwy. 

.  Co.  V.  Scott.  4  Tex.  Ci 
v.  t-.mrich,  24  111.  App.  24%: 
61    Til.  263;  Brill  V.  Rail w a 

22 — Reinhard  Ca- 


496 


UNDISCLOSED   PRINCIPAL. 


inia  tV, 


the^'  have  no  interest  in  the  goods,  and 
.ch  of  contract,    I  think  the  jlaintiffs 
vaiue  of  the  goods,  and  thev 
for  the  real  owner."     In 
House  of  Lords  held  ■     ' 
a  delivery  to  a  can 
proper  person  t(*  ' 
signor  make  a  •=> 
sedes  the  nee 
consignor  n 
property  of  t 
above  qiK^'"' 
were  to  ' 
beijv 
Dav 


lam  an  acti. 


A  leadi  .., 
after  an  ela 
reached  the 
mav  sue  the 


ti..>  i»e  accepted  a^ 
■  '  :h^t  the  prese;r 

1  based  upor' 
aged  conditi 
iin-olveci  in  the  presei^ 
seem  that  the  right  or 
est  or  right  in  tlie  pr 
not  bring  such  an  actiuu. 


'  &  Lo.,    me  piai; 
330,  is  '-rimetime'^ 


;:n^inified  by  his 

recover  the 

i  as  trustees 

600,  the 

lie  there  is 

'alter  is  the 

•  t  if  the  con- 
iitract  super- 

■  goods,  and  the 
vxis  may  be  the 
ef erred  to  in  the 
g  that  the  goods 
•r  the  said  goods 
iits.     The  case  of 
'  '♦•ed"  as  authority 
"1  and  distin- 
^  es,  Q  Yerger 
.  >n  the  case  was  brought  by  a  con- 
-   r  not  safely  carrying  according  to 
f  a  certain  hire  and  reward  to  be 
'        ■         .  one  Thomas  Ady,  at 
:  mined  tliat,  if  a  con- 
DarUciilar  carrier  bv  the  order  of 
us  lost,  the  consignor  cannot  main- 
rier  and  that  the  action  can  only  be 
In  this  case  there  is  no  contract  with 
for  the  delivery  of  the  articles ;  the 
"' '    -t\  ■■     'clivered  to  a  carrier  spec- 
die  court,  in  the  opinions 
iJavis  aiKl  Jordan,  5  Burr.  2680,  and 
Term  Rep.  659,  and  recognize  them 

liRrd  v.  Page,  8  Gray  281,  where, 

iliorities.   Chief  Justice  Shaw 

,-  ..--.^d  in  a  bill  of  lading 

.  although  he  has  no 

•  upon  which 
-•cision  ought 

not  be  lost  si 'jilt 
'xt.  If  the  acti";-  ■ 
delivering  the  goods 
V  diflferent  from  that 
•  such  a  case  it  would 
e  injury  in  the  inter- 
not  the  owner,  could 
ihc  Ki.  reen  such  a  case  and 


LIABILITY    THIRD    PARTY    TO    AGENT,  497 

one  like  the  present  was  pointed  out  in  F"inn  v.  Railroad  Company, 
112  Mass.  524,  where  it  was  ruled,  in  effect,  that  in  order  to  authorize 
an  action  by  the  consignor,  who  is  not  the  owner  of  the  goods,  there 
need  be  no  express  contract  between  him  and  the  carrier,  but  that  the 
action  may  be  maintained  upon  the  contract  implied  from  the  deliv- 
ery and  receipt  of  the  goods  for  carriage,  if  no  action  ex  delicto  has 
been  begun  by  the  consignee ;  and  that  the  consignor  will  hold  the 
sum  recovered  in  trust  for  the  consignee.  In  Carter  v.  Graves, 
9  Yerg.  z^5,  it  was  held :  "A  consignor  cannot  maintain  an  action  on 
the  case  for  the  loss  or  injury  of  the  property  consigned,  without 
showing  that  he  has  a  general  or  special  right  thereto,  but  he  may  in 
all  cases  maintain  an  action  of  assumpsit  upon  a  contract  to  deliver 
the  property  safely,  he  having  made  the  same,  and  paid,  or  become 
bound  for,  the  consideration."  In  Hooper  v.  Railway  Company,  27 
Wis.  81,  91,  it  was  said:  "The  shipper  is  a  party  in  interest  to  the 
contract,  and  it  does  not  lie  with  the  carrier,  who  made  the  contract 
with  him,  to  say,  upon  a  breach  of  it,  that  he  is  not  entitled  to  recover 
the  damages,  unless  it  be  shown  that  the  consignee  objects  ;  for,  with- 
out that,  it  will  be  presumed  that  the  action  was  commenced  and  is 
prosecuted  with  the  knowledge  and  consent  of  the  consignee,  and  for 
his  benefit.  The  consignor  or  shipper  is,  by  operation  of  the  rule,  re- 
garded as  a  trustee  of  an  express  trust,  like  a  factor  or  other  mercan- 
tile agent  who  contracts  in  his  own  name  on  behalf  of  his  principal." 
Another  well-considered  case,  in  which  an  elaborate  review  of  the  au- 
thorities is  made,  is  Southern  Express  Company  v.  Craft,  49  Miss. 
480.  In  Great  Western  Railroad  Company  v.  McComas,  33  111.  185,  it 
was  ruled :  "Where  goods  are  shipped  upon  a  railroad  for  transporta- 
tion, the  consignor  may  sue  for  their  non-delivery,  though  he  be  but  a 
bailee.  He  has  such  a  special  property  in  the  goods  as  to  give  him  a 
right  of  action.  So  may  the  real  owner  sue,  and  so  may  the  con- 
signee. It  was  ruled  further  in  that  case  that  whichever  of  these 
three  first  obtains  damages,  it  v/ill  be  in  full  satisfaction  of  the  claims 
of  the  others. 

W^e  have  not  undertaken  to  collate  here  all  of  the  cases  bearing 
upon  this  question.  ]\fany  of  them,  perhaps  nearly  all,  are  cited  in 
the  decisions  above  referred  to.  The  following  also  support  the  rul- 
ing made  in  the  present  case :  Cobb  v.  Railroad  Company,  38  Iowa 
601(8)  ;  Dows  V.  Cobb,  12  Barb.  310;  Harvey  v.  Railroad  Company, 
74  Mo.  539;  Atchison  v.  Railway  Company,  80  Mo.  213;  Moore  v. 
Sheridine,  11  Harr.  &  McH.  453 ;  Southern  Express  Co.  v.  Caperton, 
44  Ala.  loi  ;  Mo.  Pac.  Rwy.  Co.  v.  Smith,  84  Tex.  348 ;  Mo.  Pac. 
Rwy.  Co.  V.  Scott,  4  Tex.  Civ.  App.  76 ;  Ohio  &  Miss.  Railroad  Co. 
V.  Emrich,  24  111.  App.  245  ;  Northern  Line  Packet  Co.  v.  Shearer, 
61   111.  263;  Brill  V.  Railway  Co.,  20  U.  C.  C.  P.  440;  Moran  v. 

32 — Rein  HARD  Cases. 


498  UNDISCLOSED    PRINCIPAL. 

Packet  Co.,  35  Me.  55  ;  Cantrell  v.  Pacific  Express  Co.,  58  Ark.  487; 
Goodwyn  v.  Doug-less,  Cheeves  (S.  C.)  174;  3  Enc.  P.  &  P.  826; 
Hutchinson  Car.,  §  724  et  seq. ;  Parks  v.  Railway  Co.  (Tex.),  30  S. 
W.  708;  Galveston  Ry.  Co.  v.  Barnett  (Tex.),  26  S.  W.  782;  Davis 
V.  Jacksonville  South-Eastern  Line  (Mo.),  28  S.  W.  965.  There  are 
a  few  cases  which  seem  to  hold  that  the  sole  right  of  action  against 
a  carrier  for  loss  of  or  injury  to  goods  as  in  the  consignee,  notwith- 
standing a  contract  of  carriage  was  made  with  the  consignor.  It 
would  not  be  profitable  to  attempt  to  reconcile  these  decisions.  Some 
of  them,  however,  will  be  found  upon  examination  to  refer  to  actions 
ex  delicto  brought  by  the  consignee  as  the  real  owner  of  the  goods. 
Those  which  do  hold  that  the  consignor  cannot  maintain  an  action 
for  a  breach  of  contract  made  by  the  carrier  with  him  are,  as  has 
been  seen  above,  against  both  principle  and  the  great  weight  of  au- 
thority, and  ought  to  be  disregarded.  So  far,  however,  as  the  pres- 
ent case  is  concerned,  the  plaintiff  was  both  consignor  and  consignee, 
and  the  real  owner  was  a  party  entirely  unknown  in  the  transaction. 
We  prefer,  however,  to  place  our  decision  upon  the  ground  that  as 
the  plaintiflf  was  the  agent  of  the  real  owner  of  the  goods  and  had 
charge  of  the  same,  he  was  authorized  to  enter  into  a  contract  of 
shipment  with  the  carrier ;  and  that  having  entered  into  this  contract, 
the  legal  interest  therein  was  vested  in  him,  and  he  could  sue  for  its 
breach.  The  decision  of  this  court  in  Lockhart  v.  Railroad  Co.,  73 
Ga.  472,  does  not  conflict  with  anything  ruled  in  the  present  case. 
The  plaintiflf  in  that  case  had  no  contract  with  the  carrier,  and  no  in- 
terest whatever  in  the  property. 

It  was  contended  by  counsel  for  defendant  in  error  that  the  plain- 
tiff in  the  present  action  failed  to  make  out  a  prima  facie  case  of  lia- 
bility on  the  part  of  the  defendant  for  injury  to  the  goods,  and  that, 
this  being  so,  even  if  the  court  erred  in  placing  his  decision  granting 
a  non-suit  on  the  ground  indicated  in  the  order,  the  judgment  should 
be  affirmed,  as  the  right  result  was  reached,  though  the  wrong  rea- 
son may  have  been  given  for  it.  We  think  the  plaintiff  did  make  out 
a  prijiva  facie  case  of  liability;  and  consequently  the  judgment  of 
non-suit  was  in  any  view  of  the  case  erroneous,  and  a  trial  upon  the 
merits  should  be  had. 

Judgment  reversed.     All  concurring,  except  Fish,  J.,  absent.^ 

^  See  also  Georgia,  etc.,  Ry.  Co.  v.  ]Marchman,  121  Ga.  235. 

"An  agent  may  sue  in  his  own  name:  First,  When  the  contract  is  in  writing 
and  is  expressly  made  with  him,  although  he  may  have  been  known  to  act 
as  agent;  Secondly,  When  the  agent  is  the  only  known  or  ostensible  principal, 
and  is,  therefore,  in  contemplation  of  law,  the  real  contracting  party;  Thirdly, 
When,  by  the  usage  of  trade,  he  is  authorized  to  act  as  owner,  or  as  a  principal 
contracting  party,  notwithstanding  his  well-known  position  as  agent  only.  But 
this  right  of  an  agent  to  bring  an  action,  in  certain  cases,  in  his  own  name,  is 
subordinate  to  the  rights  of  the  principal,  who  may,  unless  in  particular  cases, 


I 


LIABILITY   THIRD  PARTY  TO  AGENT.  499 

COLBURN  V.  PHILLIPS  and' Others. 

1859.    Supreme  Jup^'' •    r.,.-v  ..■:-  m  ..:.-:  ..-r,-. 

Vction  of  contract  upon  the  '.-nt:     'Salem,  Oct. 

..,  1853.    Agreed  with  Jesse  Co;  ..  -,_■  .rough  to  ship  say 

two  hundred  tons  of  rough  stone,  from  one  to  two  tons 

each,  from  PhilHps'  Wharf,  to  the  p' >.  >  >■.  .Norfolk,  Va.,  at  the  rate 
of  $1.75  per  ton  of  fourteen  cubic  feet,  and  as  soon  after  they  are 
received  as  a  vessel  can  be  ',  the  measurement  to  be  made 

up  from  the  marks  upon  ea^ 

PriiLLiPS,  Goodhue  &  Bowker. 

"It  is  understood  that  Mr.  Colburn  shall  not  be  liab'  -  '"  '^  ■'>'-•'  f^--- 
penses  at  Salem,  except  the  charge  of  freight  above  - 

To  be  delivered  at  Norfolk,  Va,,  to  the  order  of  Gault  .- 

P.,  G.  C 

The  substance  of  the  declaration  and  of  the  demurrer  ti^v 
:n  which  the  case  was  argued  in  ^^Titing,  are  stated  in  the  opinion. 

iloAR,  J. — The  plaintiff  made  a  written  contract  with  the  defend- 
ants to  ship  two  hundred  tons  of  stone  from  Phillips'  Wharf  in 
Salem  to  Norfolk,  Va.,  at  the  rate  of  $1.75  a  ton,  as  soon  after  they 
were  received  as  a  vessel  could  be  procured,  lo  be  delivered  in  Nor- 
folk, to  the  order  of  Gault  &:  Brother;  the  plaintiff  r  '  '  "  'e 
for  any  expenses  at  Salem,  excer^"  the  *'reirriit  as  -  .1. 
The  plaintiff  in  his  declaration  nee  tha  e 
the  contract  on  behalf  and  for  •  ,  .^...  -^  ..e  firm  -  "i: 
Brother,  and  their  assigns,  Gault  &  LTiristy;  that  he  dt  :e 
.stone  at  Phillips'  Wharf;  but  th"  ''^'  "iefendants  did  not  -  _,.  ic  at 
the  price  agreed,  hut  at  a  higl;  ,  and  that  Gault  &  Christy 
paid  the  higher  rate,  under  pr.jtCbi,  on  a  part  of  the  stone,  and  on. 
the  rest  were  compelled  to  p;*^-  't  ^v  process  of  the  court  of  ad- 

•..    'r      •  '-      'ivers  co='  counsel  fees. 

'  ■,(    .  :■  :  .\  :nts  file  a.  ■''■  some  of  the  mate 

legations  of  the  declaration  ir  answer  a  demurrf,r, 

which  now  comes  before  us  / ..  •.  .. 

Four  causes  of  demurrer  are  i.   That  b 

own  showing  the  only  cayse  of  acL.;  ' "     '  j  ,  ai^u 

not  to  the  plaintiff.     In  support  of  m  the 

where  the  agent  has  a  lien  or  some  other  vested  r- 
thus  suspend  or  extinguish  the  right  of  Oic  . 
Rand,  TTi  Ind.  206,  2T0 

"■"'■"--        ^  ""      ■  -ie  wiv.) 

.  an  ac- 
l\ou  WT  11  m  .'I',  .^TitT  im'  [fr'um.!'.. 


'■,,ckct  Lc,  35  2\ic.  y 

.  racinc  : 

.  56  Ark.  487  : 

oo<xl\vvn  V.  Dotiirlo 

s.  r.)  T 

;.\  &  P.  826 

Hiitclnnson  Car. 

Tex.),  30  S, 

W.  708;  Gal  vest. 

,    .  782;  Davl 

V,  Jacksonville  S 

c  (iVj.O._), 

■^.    There  arc 

a  few  cases  v '■' 

.hat  the  s^ 

i  .iction  again^-■ 

a  carrier  for 

to  gx3ods  as 

nsignee,  notwith 

standing  a  c 

■■-.T-        -  ■ 

le  consignor.     It 

would  not  b- 

decisions.   Some 

of  them,  ho, 

10  refer  to  actions 

e:<  delicto  V- 

uer  of  the  goodt;. 

Those  \'  ■ 

■  consignor 

riintain  an  actior 

for  ?  1m 

ie  by  the  car 

him  are,  as  ha- 

beei 

ii  principle  ar 

at  weight  of  au- 

tho: 

— ded.    So 

ever,  as  the  pres 

eni 

was  bot 

or  and  consignee 

i.  cntirt' 

11  the  transaction. 

our  dp' 

.e  groimd  that  a 

. , "  i '  . 

>i  I 

he  goods  and  had 

.::Ler 

into  a  contract  of 

.  ing 

entered  into  this  contract, 

,  Hi  him,  and  he  could  sue  for  its 

t  in  Lockhart  \ 

.  Railroad  Co.,  73 

.    bing  ] 

"uled  in 

the  present  case. 

..  act  with  the 

carrier,  and  no  in- 

tirt  ' 
bilLl,  . 
this  beii' 
a  non-snii  < 
be  afiirmed. 
son  may  ha^  1 
a  prima  /tit/, 
non-suit  was  in 
merits  should  b< 
judgment  rev: 


i  for  defendant  in  error  that  the  plain- 

I  to  make  out  a  prima  facie  case  of  lia- 

idant  for  injury  to  the  goods,  and  that 

t  erred  in  placing  his  decision  grantin;: 

' ■:  \  ''1  !'        rder,  the  judgment  should 

I    :td,  though  the  wrong  rea- 

■   k  the  plaintiff  did  make  out 

,   •-     .  i.'-equently  the  judgment  of 

ase  erroneous,  and  a  trial  upon  th- 

^h,  J.,  absent.' 


.'so  Georgi 

rv'A  ,i'j;ent  may  .>; 

and  is  expressly  r. 


comracvmj'  yariy,  nutvv 
this  vi-jht  .^f  "V.  n-^crf-  ♦ 
sub'        ■ 


;  ^    .11    W  1  i  I  ■  1 1  ■_ 

'   known  to  act 

.^iisible  pri"-'"'' 

•  tmg  party;  T 

.er,  or  as  a  prr 

1  as  agent  only.    Bir. 

in  his  own  name,  i- 

uiicss  in  particular  casc=. 


LIABILITY   THIRD   PARTY   TO   AGENT.  499 

COLBURN  V.  PHILLIPS  and  Others. 
1859.     Supreme  Judicial  Court  of  Massachusetts.     13  Gray  64. 

Action  of  contract  upon  the  following  agreement :  "Salem,  Oct. 
6,  1853.  Agreed  with  Jesse  Colburn  of  Tyngsborough  to  ship  say 
two  hundred  tons  of  rough  stone,  weighing  from  one  to  two  tons 
each,  from  Phillips'  Wharf,  to  the  port  of  Norfolk,  Va.,  at  the  rate 
of  $1.75  per  ton  of  fourteen  cubic  feet,  and  as  soon  after  they  are 
received  as  a  vessel  can  be  procured,  the  measurement  to  be  made 
up  from  the  marks  upon  each  stone. 

Phillips,  Goodhue  &  Bowker. 

"It  is  understood  that  Mr.  Colburn  shall  not  be  liable  for  any  ex- 
penses at  Salem,  except  the  charge  of  freight  above  specified. 

P.,  G.  &  B. 

"To  be  delivered  at  Norfolk,  Va.,  to  the  order  of  Gault  &  Brother. 

P.,  G.  &  B." 

The  substance  of  the  declaration  and  of  the  demurrer  thereto, 
upon  which  the  case  was  argued  in  writing,  are  stated  in  the  opinion. 

Hoar,  J. — The  plaintiff  made  a  written  contract  with  the  defend- 
ants to  ship  two  hundred  tons  of  stone  from  Phillips'  Wharf  in 
Salem  to  Norfolk,  Va.,  at  the  rate  of  $1.75  a  ton,  as  soon  after  they 
were  received  as  a  vessel  could  be  procured,  to  be  delivered  in  Nor- 
folk, to  the  order  of  Gault  &  Brother;  the  plaintiff  not  to  be  liable 
for  any  expenses  at  Salem,  except  the  freight  as  above  specified. 
The  plaintiff  in  his  declaration  alleges  in  substance  that  he  made 
the  contract  on  behalf  and  for  the  benefit  of  the  firm  of  Gault  & 
Brother,  and  their  assigns,  Gault  &  Christy ;  that  he  delivered  the 
stone  at  Phillips'  Wharf ;  but  that  the  defendants  did  not  ship  it  at 
the  price  agreed,  but  at  a  higher  price ;  and  that  Gault  &  Christy 
paid  the  higher  rate,  under  protest,  on  a  part  of  the  stone,  and  on 
the  rest  were  compelled  to  pay  it  by  process  of  the  court  of  ad- 
miralty, with  divers  costs,  expenses  and  counsel  fees. 

The  defendants  file  an  answer,  denying  some  of  the  material  al- 
legations of  the  declaration ;  and  insert  in  their  answer  a  demurrer, 
which  now  comes  before  us  for  adjudication. 

Four  causes  of  demurrer  are  assigned,  i.  That  by  the  plaintiff's 
own  showing  the  only  cause  of  action  belongs  to  Gault  &  Christy,  and 
not  to  the  plaintiff.     In  support  of  this  it  has  been  argued  on  the 

where  the  agent  has  a  lien  or  some  other  vested  right,  bring  suit  himself  and 
thus  suspend  or  extinguish  the  right  of  the  agent."  Niblack,  J.,  in  Rowe  v. 
Rand,  11 1  Ind.  206,  210. 

In  Miller  v.  State  Bank  of  Duluth,  57  Minn.  319,  it  was  held  that  one  who 
deposited  money  as  agent  for  an  undisclosed  principal  cannot  maintain  an  ac- 
tion for  it  in  his  own  name  after  the  termination  of  the  agency. 


500  UNDISCLOSED    PRINCIPAL, 

part  of  the  defendants  that  a  promise  made  expressly  to  one  who  is 
only  the  agent  of  another,  from  whom  the  consideration  wholly 
moves,  will  not  support  an  action  in  the  name  of  the  agent.  Un- 
doubtedly some  support  to  this  doctrine  can  be  found  in  the  dicta 
of  judges  in  several  reported  cases,  and  there  seems  to  be  some 
confusion  and  inconsistency  upon  the  subject  in  the  cases  them- 
selves. But  upon  a  careful  examination  it  may  appear  that,  while 
the  reasons  given  for  some  of  the  decisions  cannot  be  well  reconciled, 
the  decisions  are  for  the  most  part  harmonious,  and  can  be  sustained 
upon  sound  principles. 

In  Gilmore  v.  Pope,  5  Mass.  491,  which  was  an  action  upon  a 
subscription  for  shares  in  a  turnpike  company,  with  a  promise  to 
pay  the  assessments  to  the  plaintiff,  who  was  an  agent  of  the  com- 
pany, the  plaintiff  was  non-suited,  and  Parsons,  C.  J.,  said:  "The 
action  cannot  be  maintained  in  the  name  of  a  mere  agent  of  the  cor- 
poration, as  in  this  transaction  the  plaintiff  has  alleged  himself  to 
be ;  there  being  no  consideration,  as  between  the  agent  and  sub- 
scribers, to  support  an  action  of  assumpsit."  This  remark  of  the 
chief  justice  would  seem  to  assume  that,  to  support  a  promise,  the 
consideration  must  always  move  from  the  party  to  whom  the  prom- 
ise is  made.  On  examining  the  case,  the  promise  is  found  to  be  a 
part  of  a  contract  to  take  and  pay  for  shares  in  the  turnpike  road, 
in  consideration  of  being  admitted  as  associates  in  the  corporation. 
This  is  very  clearly  a  contract  with  the  corporation.  The  promise 
is  to  pay  the  assessments  to  Gilmore  or  order ;  but  there  is  not  in 
terms  any  promise  to  Gilmore  himself.  The  apparent  purport,  then, 
as  well  as  the  legal  effect  of  the  instrument,  was  an  agreement  with 
the  corporation  from  whom  the  consideration  proceeded.  It  would 
therefore  stand  as  a  promise  to  A,  upon  a  consideration  received 
from  A,  to  pay  a  sum  of  money  to  B ;  upon  which  it  is  now  well 
settled  in  this  commonwealth  that  B  can  maintain  no  action,  except 
under  certain  peculiar  and  limited  conditions.  Mellen  v.  Whipple, 
I  Gray  317;  Field  v.  Crawford,  6  Gray  116;  Dow  v.  Clark,  7  Gray 
198. 

In  Buffum  v.  Chad  wick,  8  Mass.  103,  the  court  decided  that 
where  a  note  was  made  to  the  plaintiff,  describing  him  as  agent  of 
the  Providence  Hat  Manufacturing  Company,  the  action  cauld  be 
maintained  by  him,  although  the  objection  was  suggested  that  he 
was  a  mere  agent,  and  that  the  consideration  moved  from  the  com- 
pany alone.  They  distinguish  the  case  of  Gilmore  v.  Pope,  which 
was  cited  by  the  defendant's  counsel,  and  observe  that  in  that  case 
"the  contract  was  directly  with  the  corporation." 

In  the  case  of  Commercial  Bank  v.  French,  21  Pick.  486,  it  was 
decided,  that  a  promissory  note  made  to  "the  cashier  of  the  Com- 
mercial Bank,"  the  note  being  the  property  of  the  bank,  was  a  con- 
tract with  the  bank,  on  which  the  corporation  might  sue.     Gilmore 


LIABILITY    TUl! 


CJ    AGK.\ 


V.   i\rp-    1    c/ •.;  as  sustaining-  ti 

the  doctiiue  u.at,  by  a  just  con...   .      . 

terms  of  description,  the  contract  was  made 

In  Eastern  Railro.i'  -■    ■'     "'ict,  5  Gray 
that  upon  an  order  i-  A.  Neale.  1 

"R.'silr.-.ad  Company/'  tne  <__ 
est.  r.iig-ht  sue  in  its  own  na 
ine<]  aiid  discussed,  and  we  are  ■ 
decision  ;  but  no  question  arose  i' 
not  have  been  maintained,  if 

In  Gunn  v.  Cantine,  i'^  ^ 
given  to  an  attorney,  ui 
upon  a  contract  belc" 
fact  that  there  wa? 
to  the  attorney ;  and  oiil  v   ' 
irom.  the  instrument  was  t' 
that  which  we  have  sul 
Pope. 

There  is  a  class  of  cases  i 
10  a  public  officer,  in  his  ofh' 


ists  upon 
used,  as 


:,-.  >.ieter^i 
.f  the  E. 


,:,  proiii;  ■ 
al ;  a  vi>. 
.  to  the  case 

has. been  held  that  a  p; 
dcity,  must  be  enforced  by 


in  the  name  of  the  public  body  for  which  he  acts.  Pigott  v.  Thomp- 
son, 3  Bos.  &  Pul.  147;  Irish  v.  ""'  '  "I.  171 ;  Garland  v. 
Reynolds,  20  Me.  45.  The  ^m  '.1?  to  that  which 
holds  that  one  who  signs  a  ■  not  per- 
sonally responsible  upon  it ;  •  '  it  is  D'Jt 
is,  that  a  just  construction  of  th 
the  principal. 

In  Thatcher  v.  Winslow . 
that  an  agent,  not  Ir 
sory  note,  cannot  su 
he  names  in  support  ->i 
more  v.  Pope,  before  C( 
this,  that  putting  a  pron 
dorsed  in  blank,  withov. 

tO"  bring  a  suit  upon  it:,  .e 

;k^:  to  him  as  will 
:     ci  jbt  of  its  corr 

But  in  Stor}'  or. 
note  is  endorsed  m  "r 

collection,  the  agent  lua 
'  nd  in  §  161,  that  "if  a;. 

.  his  own  name,  for  th  U 

a;,  the  principal,  may  sm:  i 
doctrine  is  stated  in  the  brrj  c 


who  is 

wholly 

:!1  not  ^:. 

vion  in  t 

L    Un- 

-r.iiif-    - 

doctri ! 

...  :;ie  dicta 

cases,  ;• 

to  be  some 

1  ■  >■  1  i.ii-in.ii;     .lau     il 

..-„      iU, 

i^ases  them- 

selves.     But  iipoi 

that.  while 

■  ;:ed. 

:ned 

upon  bOuilu  p 

In  Gilmor. 

Mass.  491,  whi 

1  action  upon  a 

subscripi: 

a  turnpike 

Il  a  promise  to 

pay  the  r^ 

'■'■•-intiff,  wl 

<nt  of  the  com- 

pany,  thv 

ted,  an^i 

[..  said:    "The 

'  t  of  the  cor- 

i  himself  to 

be;   i.r 

:it  and  sub- 

scriV.^                          :     , 

'viark  of  the 

the 


certain 


In  Buftun. 
■  '  rr^  a  note  w,, 
Yovidence  1 


'  rne  contract  was  air' 
In  the  case  of  Cow. 
decided,  that  a  promi 
"  '     ial  Bank,"  the  nou.  .,■ 
vvith  the  bank,  on  w' 


'pon  a  promise,  the 

to  whom  the  prom-  • 

ise  is  found  to  be  a 

in  the  turnpike  road, 

V  in  the  corporation. 

;  poration.     The  promise 

>.ier ;  but  there  is  not  in 

,iirnbcif.     1  he  apparent  purport,  then, 

e  instruT'-.!  't     vr^s  an  agreement  with 

le  consi(]  roceeded.     It  would 

to  A,  ui-   •   a  ■.uusideration  received 

ey  to  B;  upon  which  it  is  now  well 

■"'  aintain  no  action,  except 

.IS.     Mellen  v.  Whipple, 

' ;  Dow  v.  Clark,  7  Gray 

Mass.   103,  the  court  decided  that 
•''^ing  him  as  agent  of 
the  action  cauld  be 
■ted  that  he 
.  n  the  com- 
which 
at  case 

.:.  .  •    I'ick.  486,  it  was 
he  cashier  of  the  Com- 
;  .y  of  the  bank,  was  a  con- 
oration  might  sue.    Gilmore 


,t-;tT  ,-1. 


LIABILITY   THIRD    PARTY   TO   AGENT.  50I 

V.  Pope  is  cited  as  sustaining  the  decision ;  but  the  case  rests  upon 
the  doctrine  that,  by  a  just  construction  of  the  language  used,  as 
terms  of  description,  the  contract  was  made  with  the  bank. 

In  Eastern  Railroad  v.  Benedict,  5  Gray  561,  it  was  determined 
that  upon  an  order  payable  "to  D.  A.  Neale,  president  of  the  Eastern 
Railroad  Company,"  the  corporation,  being  the  real  party  in  inter- 
est, might  sue  in  its  own  name.  The  authorities  were  fully  exam- 
ined and  discussed,  and  we  are  satisfied  with  the  correctness  of  the 
decision ;  but  no  question  arose  in  that  case  whether  the  action  might 
not  have  been  maintained,  if  brought  in  the  name  of  the  payee. 

In  Gunn  v.  Cantine,  10  Johns.  387,  the  action  was  upon  a  receipt 
given  to  an  attorney,  upon  an  undertaking  to  collect  the  money  due 
upon  a  contract  belonging  to  his  principal ;  but  the  court  notice  the 
fact  that  there  was  no  express  promise  to  pay  the  money  collected 
to  the  attorney ;  and  only  decide  that  the  promise  implied  by  law 
from  the  instrument  was  to  the  principal ;  a  view  consistent  with 
that  which  we  have  suggested  in  regard  to  the  case  of  Gilmore  v. 
Pope. 

There  is  a  class  of  cases  in  which  it  has  been  held  that  a  promise 
to  a  public  officer,  in  his  official  capacity,  must  be  enforced  by  a  suit 
in  the  name  of  the  public  body  for  which  he  acts.  Pigott  v.  Thomp- 
son, 3  Bos.  &  Pul.  147;  Irish  v.  Webster,  5  Greenl.  171 ;  Garland  v. 
Reynolds,  20  Me.  45.  The  principle  is  analogous  to  that  which 
holds  that  one  who  signs  a  contract  as  a  public  officer  is  not  per- 
sonally responsible  upon  it ;  though  the  ground  upon  which  it  is  put 
is,  that  a  just  construction  of  the  contract  makes  it  the  contract  of 
the  principal. 

In  Thatcher  v.  Winslow,  5  Mason  58,  Air.  Justice  Story  held 
that  an  agent,  not  having  any  legal  or  equitable  interest  in  a  promis- 
sory note,  cannot  sue  as  endorsee  upon  it.  The  only  authorities  which 
he  names  in  support  of  the  doctrine  are  Gunn  v.  Cantine  and  Gil- 
more  v.  Pope,  before  cited.  If  the  effect  of  the  decision  is  merely 
this,  that  putting  a  promissory  note  into  the  hands  of  an  agent,  en- 
dorsed in  blank,  without  any  authority  express  or  implied  to  him 
to  bring  a  suit  upon  it,  will  not  constitute  such  a  transfer  of  the 
note  to  him  as  will  support  an  action  upon  it  in  his  name,  we  have 
no  doubt  of  its  correctness.    Sherwood  v.  Roys,  14  Pick.  172. 

But  in  Story  on  Agency,  §  394,  it  is  said  that  "if  a  negotiable 
note  is  endorsed  in  blank,  and  sent  by  the  owner  to  his  agent  for 
collection,  the  agent  may  sue  thereon  in  his  own  name  as  endorsee ;" 
and  in  §  161,  that  "if  an  agent  should  procure  a  policy  of  insurance 
in  his  own  name,  for  the  benefit  of  his  principal,  the  agent,  as  well 
as  the  principal,  may  sue  thereon."  In  §§  392,  393,  395,  396,  the 
doctrine  is  stated  in  the  broadest  terms,  that  whenever  the  contract 
is  made  in  writing  expressly  with  the  agent,  and  imports  to  be  a 
contract  personally  with  him,  and  also  where  he  is  the  only  kno^vn 


502  UNDISCLOSED    PRINCIPAL. 

or  ostensible  principal,  and  therefore  is,  in  contemplation  of  law,  the 
real  contracting  party,  he  may  sue  in  his  own  name.  And  such  is 
the  general  current  of  the  authorities ;  and  we  are  satisfied  that,  to 
support  an  action  upon  an  express  promise,  it  is  in  general  imma- 
terial whether  the  consideration  move  from  the  promisee  or  from 
another. 

In  Baxter  v.  Read,  cited  in  Dyer,  272b,  note,  it  was  "adjudged 
that  where  Baxter  had  retained  Read  to  be  miller  to  his  aunt,  at  ten 
shillings  per  week,  this  will  support  an  action  on  the  case ;  for  al- 
though it  is  not  beneficial  to  Baxter,  it  is  chargeable  to  Read." 

In  Goodwin  v.  Willoboughby,  Pop.  178,  Doderidge,  J.,  says:  "If 
a  stranger  saith,  'Forbear  such  a  debt  of  J.  S.,  and  I  will  pay  it,'  it 
is  a  good  consideration  for  the  loss  to  the  plaintiff." 

In  Sargent  v.  Morris,  3  B.  &  Aid.  277,  it  was  held,  that  the  con- 
signee could  not  sue  for  damage  to  goods  shipped  on  board  the  de- 
fendant's vessel,  the  consignee  being  only  the  agent  of  the  consign- 
ors, and  having  no  present  interest  in  the  goods  at  the  time  of  the 
injury.  But  there  the  bill  of  lading  stated  the  reciept  of  goods  from 
the  consignors,  and  undertook  "to  deliver  the  same  to  you,  and  in 
your  name,  according  to  custom  and  usage,  to  Mr.  Sargent  or  his  as- 
signs, paying  freight,"  etc. 

In  Sims  v.  Bond,  5  B.  &  Ad.  393,  and  2  Nev.  &  Man.  616,  Lord 
Denman  asserts  that  "it  is  a  well-established  rule  of  law  that  where 
a  contract,  not  under  seal,  is  made  with  an  agent  in  his  own  name, 
for  an  undisclosed  principal,  either  the  agent  or  the  principal  may 
sue  upon  it." 

In  the  case  at  bar,  the  contract  was  with  the  plaintiff  in  his  own 
name,  no  other  principal  was  disclosed,  and  it  was  executed  on  his 
part.  We  think  the  promise  of  the  defendants  was  upon  a  sufficient 
consideration,  and  may  be  enforced  by  the  person  to  whom  it  was 
expressly  made. 

2.  It  is  said  the  declaration  does  not  charge  the  defendants  with 
the  direct  consequence  of  their  breach  of  agreement,  but  for  an  ex- 
cess of  freight  paid  by  the  plaintiff.  The  contract  and  the  breach  of 
contract  are  expressly  set  forth.  The  damages  occasioned  thereby 
may  or  may  not  be  correctly  claimed  or  estimated,  and  it  is  no  cause 
of  demurrer. 

3.  It  is  objected  that  the  declaration  charges  the  defendant  with 
the  costs  and  expenses  of  the  suit  in  admiralty.  But  this  is  only  a 
statement,  in  part,  of  the  damages ;  and  although  mistaken,  does  not 
affect  the  right  to  maintain  the  action. 

4.  The  declaration  does  not  state  any  demand  upon  the  defend- 
ants for  an  allowance  for  the  excess  of  freight,  or  a  demand  on 
them  for  the  stone.  No  such  statement  is  necessary.  The  gist  of 
the  action  is  the  omission  to  furnish  a  vessel  to  carry  the  stone  at 
the  agreed  price.    When  the  defendants  had  shipped  the  stone  at  a 


Olill'&Vi 


503. 

murrer 


EVRIi  a:vd  vVIGHTi: 


Supreme  Court  of  Ohio. 


The  defendant  in  errc  in  the  couv 

■cal  estate  agent,  was,  on         ^.  ^ril,  A.  D.  18.- 

>ne  Webster  to  sell  the  farm  of  the  latter.    The  autli' 
vriting,  signed  by  the  part---^    -'-^  was  to  continue  for  ou<- 
vas  stipulated  that  the  far  [  not  be  sold  for  less  thai' 

1  dollars  per  acre,  and  n  '  fendant  in  error    ' 

i;at  the  farm  brought  over  ^e  said  surr'  3s  ■■: 

or  his  services,  and  the  purchase  money,  to  c  of  ihiriy- 

even  dollars  per  acre,  he  was  to  pay  over  to  sa;  -r. 

Subsequently  the  defendant  in  error  made  an  agreement  with  the 

of  which  the  following 


ilaintiflfs  in  error  for  the  sale  of  s 
!b  a  copy:   "This  article  of  agreei 
>Tovember,  A.  D.   1865,  by  and   ■ 
N^wnship  of  Jefferson,  Ashtabnl.i 
and  Samuel  Ev 
i  counties,  Penn; 
i  hat  the  party  of  the  first  part  h:; 
>art  the  Luman   Webster  fari  ■ 
teres  of  land,  it  being  located 
ing  the  same  upon  which  he 
vhich  is  placed  in  my  hands 
'I  the  1st  day  of  " 
.11  be  given.    Tb 
iarni,  or  their  equivalent 
part.    H.  N.  Bancroft,  S 
This  agreement  was  dul 
Bancroft  filed  his  petition 
lave  sustained  by  the  breacli 
;:nd  Wightman.     He  states,  ii 


red  into  this  ist  day  of 
H.  N.  Bancroft,  of  the 
nd  state  of  On  in,  r.f  li.e 


IS  aajn- 


.is  aii:i;nee  lu 


LRINClPAi.. 


or  ostensiWe  principal, 
real  contracting  party, 
the  general  current  of 
support  an  action  upc 
teriai  whether  the  ■. 
another. 

In  Baxter  v. 
that  where  Ba: 
shilling's  per  v 
though  it  i-^  TT 

In  Goo'i 
a  stranger 
is  a  good  ■ 

In  <^ 
signer 


In 

name,  no 
part 


Wr 


2.     It  n 

the  direct 
cess  of  fre 
contract  arc  ■■ 
may  or  may  n 

nurrer. 

it  is  obj'. 
ihe  costs  and  ■, 
statement,  in  ] 
affert  the  righ' 

4,    The  declaia 
ants  for  an  allow 
them  for  the  stone. 
the  action  is  the  on. 
the  agreed  pri 


No  •- 

-ion 


.  aitemplation  of  law,  the 
sue  in  his  own  name.  And  such  is 
>rities;  and  we  ar-  .--riiJ^^+ied  that,  to 
ess  promise,  it  .  ral  imma- 

-  -'vr   ■-"-  •:-   '!  --e  or  from 

;•,  2j2b,  'adjudged 

i  to  be  !■  .xunt,  at  ten 

.  t  an  action  on  the  case ;  for  al- 

.  it  is  chargeable  to  Read." 

p.  178,  Doderidge,  J.,  says:   "If 

'bt  of  J.  S,,  and  I  will  pay  it,'  it 

^  to  the  plaintiff." 

-Vid.  277,  it  was  held,  that  the  con- 

■  to  goods  shipped  on  board  the  de- 

^i'  only  ti  ■){  tlie  consign- 

::i  111-  ihe  time  of  the 

of  goods  from 

,.    .-c.int:  to  you,  and  iii 

.fe,  to  Mr.  Sargent  or  his  as- 

393,  and  ?  Nev.  &  Man.  616,  Lord 

■  rule  of  law  that  where 

agent  in  his  own  name, 

the  agent  or  the  principal  may 

vas  with  the  plaintiflf  in  his  own 

-ed,  and  it  was  executed  on  his 

lefendants  was  upon  a  sufficient 

the  person  to  whom  it  was 

not  charge  the  defendants  with 

.■1-1  (,f  .n    '.^(Mnent,  but  for  an  ex- 

•^  and  the  breach  of 

ine  occasioned  thereby 

med  or  .  .  and  it  is  no  cause 

•Jcfendant  with 
But  this  is  only  a 
niih-friken,  does  not 

Miciu,!  up'Jii  the  def end- 
eight,  or  a  demand  on 
ij  necessaiy.    The  gist  of 
essel  to  carry  the  stone  at 
1  shipped  the  stone  at 


LIABILITY   THIRD    PARTY    TO   AGENT,  503 

higher  rate,  they  had  broken  the  contract  declared  on.     Demurrer 
overruled,  and  case  remitted/ 


EVRIT  AND  WIGHTMAN  v.  BANCROFT. 
1871.     Supreme  Court  of  Ohio.     2.2  Ohio  St.  172. 

The  defendant  in  error,  the  plaintiff  in  the  court  below,  being-  a 
real  estate  agent,  was,  on  the  3d  of  April,  A.  D.  1865,  employed  by 
one  Webster  to  sell  the  farm  of  the  latter.  The  authority  was  in 
writing,  signed  by  the  parties,  and  was  to  continue  for  one  year.  It 
was  stipulated  that  the  farm  should  not  be  sold  for  less  than  thirty- 
seven  dollars  per  acre,  and  that  the  defendant  in  error  should  have 
all  that  the  farm  brought  over  and  above  said  sum  as  compensation 
for  his  services,  and  the  purchase  money,  to  the  extent  of  thirty- 
seven  dollars  per  acre,  he  was  to  pay  over  to  said  Webster. 

Subsequently  the  defendant  in  error  made  an  agreement  with  the 
plaintiffs  in  error  for  the  sale  of  said  farm,  of  which  the  following 
is  a  copy:  "This  article  of  agreement  entered  into  this  ist  day  of 
November,  A.  D.  1865,  by  and  between  H.  N.  Bancroft,  of  the 
township  of  Jefferson,  Ashtabula  county,  and  state  of  Ohio,  of  the 
first  part,  and  Samuel  Evrit  and  E.  E.  Wightman,  of  Venango  and 
Crawford  counties,  Pennsylvania,  of  the  second  part,  witnesseth : 
That  the  party  of  the  first  part  has  sold  to  the  party  of  the  second 
part  the  Luman  Webster  farm,  of  one  hundred  and  forty-three 
acres  of  land,  it  being  located  in  the  township  of  Jefferson,  and  be- 
ing the  same  upon  which  he  now  lives,  and  being  the  same  farm 
which  is  placed  in  my  hands  for  sale,  for  the  sum  of  $6,500,  all  to 
be  paid  on  the  ist  day  of  February,  A.  D.  1866,  at  which  time  pos- 
session will  be  given.  The  sugar-house  fixtures  are  to  go  with  the 
farm,  or  their  equivalent  paid  in  cash  to  the  party  of  the  second 
part.    H.  N.  Bancroft,  Samuel  Evrit,  E.  E.  Wightman." 

This  agreement  was  duly  stamped. 

Bancroft  filed  his  petition  to  recover  the  damages  he  claimed  to 
have  sustained  by  the  breach  of  this  contract  on  the  part  of  Evrit 
and  Wightman.     He  states,  in  his  petition,  the  amount  of  his  dam- 

^  Compare  Considerant  v.  Brisbane,  22  N.  Y.  389. 

It  was  held  in  Rhoades  v.  Blackiston,  106  Mass.  334,  that  the  agent's  right 
to  sue  on  the  contract  made  in  his  own  name  would  not  pass  to  his  assignee  in 
bankruptcy. 


504  UNDISCLOSED    PRINCIPAL. 

ages  to  be  "twelve  hundred  and  nine  dollars,  that  being,"  as  he 
avers,  "the  amount  of  money  which  belonged  to  him  as  his  commis- 
sion for  selling  said  farm." 

A  demurrer  to  the  petition  having  been  overruled,  the  case  was 
submitted  to  a  jury  on  an  inquiry  of  damages.  On  the  trial  the 
plaintiff  gave  no  evidence  as  to  the  value  of  the  land.  The  evidence 
introduced  by  the  defendants  showed  the  value  of  the  farm  on  the 
1st  day  of  February,  A.  D.  1866,  to  have  been  from  forty-eight 
dollars  to  fifty  dollars  per  acre. 

The  defendants  below  asked  the  court  to  charge  the  jury  that  the 
true  rule  of  damages  was  the  difference  between  the  contract  price 
of  the  farm  and  its  value  at  the  time  of  the  breach  of  the  contract, 
or  on  the  ist  day  of  February,  A.  D.  1866;  and  that  if  the  jury 
should  find  that  the  value  of  the  farm  at  said  time  equaled  or  ex- 
ceeded the  price  agreed  to  be  paid  by  said  defendants  in  the  con- 
tract, the  jury  should  return  a  verdict  for  the  defendants. 

This  instruction  the  court  refused;  but  told  the  jury  in  effect, 
among  other  things,  that  if  the  defendants  had  kept  and  performed 
their  contract,  the  plaintiff's  interest  therein  would  have  been  the 
difference  between  thirty-seven  dollars  per  acre  and  the  amount  the 
said  defendants  agreed  to  pay  for  the  same,  and  that  the  defendants, 
by  their  non-performance  or  refusal  to  perform,  could  not  lessen 
the  plaintiff's  interest  in  said  contract,  and  that  the  rule  of  damages 
would  be  the  difference  between  thirty-seven  dollars  per  acre  for 
the  farm  and  the  price  the  defendants  agreed  to  pay  for  it. 

The  verdict  was  in  favor  of  the  plaintiff  for  $1,429.64,  on  which, 
after  overruling  a  motion  for  a  new  trial,  the  court  rendered  judg- 
ment. 

The  object  of  the  present  petition  in  error  is  to  obtain  the  re- 
versal of  this  judgment. 

White,  J. — The  original  action  was  not  an  equitable  one  brought 
for  the  specific  performance  of  the  agreement  for  the  sale  of  the 
farm,  and  for  the  apportionment  of  the  purchase  money  between 
the  plaintiff  and  his  principal.  It  was  strictly  an  action  in  per- 
sonam to  recover  damages  from  the  defendants  for  the  breach  of  the 
contract. 

We  deem  it  unnecessary  now  to  inquire  whether  there  was  tech- 
nical error  in  overruling  the  demurrer  to  the  petition.  The  bill  of 
exceptions  clearly  discloses  the  real  character  of  the  case.  The 
claim  which  the  plaintiff  sought  to  enforce  against  the  defendants 
consisted  of  the  compensation  to  which  he  would  have  been  entitled, 
under  his  agreement  with  his  principal,  if  the  agreement  with  the 
defendants  for  the  sale  of  the  farm  had  been  performed.  As  his 
loss  in  this  compensation  resulted  from  the  default,  as  he  alleges, 
of  the  defendants,  he  claims  the  right  to  make  them  respond  in  dam- 


rjge>  t..-  ti'  inaj  be  uec.  ■ 

ha?  nc  -V 

Th..  nts  wer  ng-  for 

tb^-'  .  „idon.     Tlji...  '■V'eir 

o-  inent,  and  the  r  ne 

s;i;.    -  L'luught  in  the  name  ^  .  ov  iii  : 

:uV'  (  as  one  of  the  contractin.;.  t  ag-ent  ■ 

t  for  the  sale  of  proper^ 
f  personally,  acquires  no 
iidii  he  would  acquire  •  contra t 

property. 

In  this  case  it  appears  f r^ 
value  tlian  the  contract  pr>ct: 
only  nominal  if  the  principal  h. 

the  farm  he  contra.  •  ,, 

case  v-':is  tried  and  's 

C'  'on  as  a;  "  his  etu'  it- 

'-'■''\  upon  th        .  _.      u;ir  agree.......  .   .  .m 

their  default,  became  liable  to  hmi  tor  the  loss  of  such  coi: 
tion,  although  if  there  had  been  no  agency  the-  -  '  ■ 
been  liable  for  nominal  damages. 

We  think  the  law  imposes  on  them  no  such  liabii.iv.  IL^  lest,  ci 
such  compensation  was  not  the  ii3tiir-?i  and  proximate  result  of  the 
breach,  by  the  defendants,  of  th'^  .ict. 

I  ui^-ment  reversed,  verdict  ^.  md  cause  renjar 


unj  mri 


T? 


IQOI.       SUPREM' 


1^^  \SE  for  neghgence 
gu;h  Trial  by  jur}-. 
C.  J.,  presiding.  A  \ 
judgment  on  the  verdic 

For  the  nature  of  the 
demurrer,  see  this  case,  7; 
.—The  r 


ent  on 

rchased   01 


of  dari; 
course. 


5^4 


twelve  i 

vers,  "the  amount  oi 
siua  for  selling  said  : 
A  demurrer  to  th; 
1  to  a  jv 
■;;ave  no 
iUiTuduced  b\ 
1st  day  of  1 
dollars  to  fiit 

The  d-t,  : 
true  ruK 
of  the  f: 
or  on  t' 


T: 
ver,'- 
W 
tor  the  ^; 
farm,  an<> 
the  plaintiff 
-"':-in  to  recv 
act. 
'.  e  deem  ' 
error  h\ 
.s  cleaii 
Lich  the  ■ 
consisted  of  the  c. 
i-inder  his  agreenicu. 
adants  for  the  s: 


•  d'  !!:ii  -ing,"  as  he 

his  commis- 

ase  was 

trial  the 

evidence 

farm  on  the 

.1   forty-eight 

I  .  ^.  ihe  jur}^'  that  the 

•erence  l)etvvt^n  the  contract  price 

Lc  time  of  the  breach  of  the  contract, 

ly,  A.  D.  i8f/.;  and  that  if  the  jury 


the  farr 
paid  b 


ualed  or  ex- 
in  the  con- 


:   verdict  fui  the  deteiidants. 

refused:  l.-vl    uAi}  the  jury  in  effect, 

'e  defend  kept  and  performed 

ii.  .^  interest  ll  >,...,,   vvould  have  been  the 

seven  dollars  per  acre  and  the  amount  the 

and  that  the  defendants, 

V  r  form,  could  not  lessefi 

that  the  rule  of  damages 

\'en  dollars  per  acre  for 

I  endants  agreed  to  pay  for  it. 

the  plaintiff  for  $1,429.64,  on  which, 

a  new  trial,  the  court  rendered  judg- 

petition  in  error  is  to  obtain  the  re- 
Lion  was  not  uii  equitable  one  brought 
if  the  agreement  for  the  sale  of  the 
■ient  of  ti;.  -.iirohase  money  between 
:.     It  v\  ly  an  action  tn  per- 

'•--'   '  '   ••  ■''■'■  '-r"pch  of  the 

'    iuqu:r'  liiere  was  tech- 

•rrer  t'->  on.     The  bill  of 

the  case.     The 

■-■:  the  defendants 

:  he  would  have  been  entitled, 

'.!,  if  the  agreement  with  the 

'ad  been  performed.     As  his 

;be  default,  as  he  alleges, 

•ke  them  respond  in  dam- 


II 


LIABILITY    THIRD    PARTY    TO   AGENT.  505 

ages  to  the  extent  that  may  be  necessary  to  repair  it.  We  think  he 
has  no  such  right. 

The  defendants  were  no  parties  to  the  agreement  providing  for 
this  compensation.  Their  hability  is  to  be  ascertained  from  their 
own  agreement,  and  the  rule  of  damages  is  the  same  whether  the 
suit  is  brought  in  the  name  of  the  principal  or  in  the  name  of  the 
agent  as  one  of  the  contracting  parties.  An  agent  entering  into  a 
contract  for  the  sale  of  property  of  his  principal,  in  which  he  binds 
himself  personally,  acquires  no  greater  rights  against  the  purchaser 
than  he  would  acquire  if  he  was  contracting  for  the  sale  of  his  own 
property. 

In  this  case  it  appears  from  the  proof  that  the  farm  was  of  greater 
value  than  the  contract  price ;  hence  the  damages  could  have  been 
only  nominal  if  the  principal  had  sued,  or  if  the  plaintiff  had  owned 
the  farm  he  contracted  to  sell.  But  upon  the  theory  on  which  the 
case  was  tried  and  disposed  of  in  the  court  below,  as  the  plaintiff's 
compensation  as  agent  was,  by  the  terms  of  his  employment,  made 
dependent  upon  the  defendants  fulfilHng  their  agreement,  they,  on 
their  default,  became  liable  to  him  for  the  loss  of  such  compensa- 
tion, although  if  there  had  been  no  agency  they  would  only  have 
been  liable  for  nominal  damages. 

We  think  the  law  imposes  on  them  no  such  liability.  The  loss  of 
such  compensation  was  not  the  natural  and  proximate  result  of  the 
breach,  by  the  defendants,  of  their  contract. 

Judgment  reversed,  verdict  set  aside,  and  cause  remanded.^ 


HOLDEN  V.  RUTLAND  RAILROAD  COMPANY. 
1901.     Supreme  Court  of  Vermont,     'j^i  Vt.  317. 

Case  for  negligence  in  the  sale  of  a  mileage  book.  Plea,  not 
guilty.  Trial  by  jury,  Caledonia  county,  June  term,  1900,  Taft, 
C.  J.,  presiding.  A  verdict  for  the  defendant  was  directed  and 
judgment  on  the  verdict  was  rendered.     The  plaintiff  excepted. 

For  the  nature  of  the  declaration,  which  was  held  sufficient  on 
demurrer,  see  this  case,  ']2.  Vt.  156. 

Watson,   J. — The   mileage-book    in    question   was   purchased   of 

^  In  United  States  Telegraph  Co.  v.  Gildersleve,  29  Md.  232,  it  was  held  that 
an  agent  who  contracted  for  an  undisclosed  principal  may  recover  full  measure 
of  damages  for  breach  of  the  contract.  On  page  246,  Alvej',  J.,  said :  "He,  of 
course,  sues  and  recovers  as  trustee  for  his  principal." 


5o6  UNDISCLOSED    PRINCIPAL. 

the  defendant's  ticket  agent  at  Burlington  by  the  plaintiff  as  the 
agent  of  Dana  O.  Coles,  but  the  plaintiff  did  not  make  known  his 
agency  nor  disclose  his  principal.  In  selling  such  tickets,  the  pur- 
chaser's name  is  required  to  be  signed  to  the  contract  printed  in  the 
back  part  of  the  book.  The  plaintiff,  being  requested  by  the  ticket 
agent  thus  to  sign  the  book  in  question,  signed  his  own  name 
thereto,  instead  of  that  of  his  principal.  By  force  of  the  contract 
it  is  the  duty  of  the  selling  agent  to  enter  the  purchaser's  name  in 
the  front  part  of  the  book,  as  the  person  to  whom  the  tttket  is  issued 
and  entitled  to  transportation  thereon.  In  the  place  for  so  doing, 
the  selling  agent  entered  the  name  of  "A.  F.  Holden"  instead  of 
"D.  F.  Holden,"  the  plaintiff's  name  signed  in  the  back  part  of  the 
book  as  the  purchaser.  The  ticket  was  then  used  by  the  plaintiff  in 
going  from  Burlington  to  Rutland  and  return.  Upon  his  return,  he 
gave  the  book  to  Coles  and  paid  him  for  the  number  of  miles  used. 
About  two  months  afterwards  the  plaintiff  hired  the  book  of  Coles, 
and  with  his  daughter  attempted  to  go  from  Burlington  to  Rutland 
on  another  journey.  The  daughter's  name  had  then  been  inserted 
in  the  front  part  of  the  book  by  Coles  as  a  member  of  the  pur- 
chaser's family  and  a  person  entitled  to  transportation  thereon.  In 
making  this  journey  over  the  defendant's  road,  the  plaintiff  offered 
the  book  for  the  transportation  of  himself  and  daughter,  but  the 
conductor  refused  to  accept  it,  and  they  rode  without  paying  fare 
to  Rutland,  where  the  plaintiff  was  arrested  at  the  request  of  the 
conductor  and  detained  for  some  little  time  before  being  released. 
The  plaintiff  claims  that  his  name  should  have  been  entered  in  the 
front  part  of  the  book  as  the  person  to  whom  the  ticket  was  issued, 
and  that  to  enter  the  name  of  "A.  F.  Holden"  instead  was  negli- 
gence by  the  ticket  agent ;  and  further  that  the  damages  suffered 
by  the  plaintiff  by  reason  of  the  conductor's  refusal  to  accept  the 
book  for  transportation  was  the  result  of  this  negligence  for  which 
the  defendant  is  liable.  The  court  below  ordered  a  verdict  for  the 
defendant,  to  which  the  plaintiff  excepted.  Was  this  error?  is  the 
sole  question.  The  plaintiff  purchased  the  mileage-book  for  Coles 
and  as  his  agent,  but  he  neither  disclosed  his  agency  nor  his  prin- 
cipal. In  these  circumstances  it  is  a  well-settled  rule  of  law  that  an 
action  for  a  breach  of  contract  not  under  seal  may  be  brought  in 
the  name  of  either  the  agent  or  the  principal ;  in  the  name  of  the 
agent  because  he  has  been  treated  by  the  defendant  as  the  other 
party  to  the  contract ;  in  the  name  of  the  principal  because  he  is  the 
person  really  interested  in  the  contract,  for  whose  benefit  it  was 
made,  and  with  whom  it  is  considered  in  law  as  made.  Dicey  Part. 
136;  Sims  V.  Bond,  5  B.  &  Ad.  393 ;  Lapham  v.  Green,  9  Vt.  407. 

But  that  this  rule  of  law  shall  not  be  so  exercised  as  to  work  an 
injustice  to  the  other  party  to  the  contract,  other  rules  incident 
thereto  are  equally  well  established.     One  of  these  is  that  if  the 


Li.'.t'ilvl  I  l     i  1 J  ll\i.l    1- 


in  his  own 
■N   which  ar'     ^ 

so  of  any  detense  that  would  be 


iranspoT 


rsons  entitled  to 

■    ■^■-i^«--  are  thus 

.'  in  case 


av:iji  i.-    ^ 

who  is  V  itt  on  r. 

good  agai.i.  .   >-v-  principa;  .;  -    ■ 

JDicey  Part.  142 ;  2  Smith's  L. 

IV.-    -<lling  the  mileage-booK   1 
pu:  OiiUicr  to  accept  the  coupons 
parcliaser,  the  members  of  his  faniilv, 
men  of  the  fiirm,  whose  names  are  en; 
the  company  in  the  fore  part  of  the  b<> 

transportation  thereon;  that  only  the  perse 

entered  are  lawfully  entitled  to  such  use  of  the  1 

of  any  desired  change  or     '     '        in  the  names  of  - 

same  will  be  made  on  a,  to  the  ticket  ag' 

where  the  book  was  sol    .  ■    '    )io  change  in  :■ 

names  will  be  made  excev  ion  to  the  ticket  . 

company   from  whom   it  no  change  in 

will  be  recognized  unless  .._. .  „-....    When  such  a  i 

is  sold,  the  name  of  the  purchaser  is  required  to  be  signed. t-i 
contract  in  the  back  part  of  the  book ;  and  when  thus  signed,  and  mc 
ticket  is  accepted  by  him,  he  is  bound  by  the  terms  of  the  contract. 
-'  hilly  V.  St.  Paul,  etc.,  Ry.  Co.,  66  Minn.  153;  Krueger  v.  Chi- 

445-  64  Am.  St.  487;  Baylon  v.  Plot 
I  V.  Cunard  S.  S.  Co.,  153 


:,:  0,  etc.,  Ry.  Co.,  68  Minn. 
;-,!  ;  ings  R.  R.  Co.,.  132  U.  S. 
.Jass.  553,  25  Am.  St.  Rep. 
Co.,  7  Utah  118. 

When  the  plaintiff  hired  xlu 
tion,  he  informed  Coles  that 
'.\-1i.  ; ;  uoon  her  name  was  ii 

-  .  :  .    iig  that  her  name  n^- 
as  a  member  of  the  pin 
transportation  upon  the  t: 
it  could  be  done  only  by  th- 
ticket  was  sold.    Neither  t^  • 
insert  it. 

'"     '    '■  '  cts  are  usiiaM 
;  ."  ..nd  are  good 

.'  ■:  the  company  :«v 

':,.-,  a  of  bearer,  su 

been  named  are  reasonable, 
fraud  upon  the  railroad  comj 
pose,  the  name  of  any  one  1. 

-,-,---;nv's  road  might  be  in: 
•  ;.'     -essor  as  he  saw  fit,  the. 
poses,  g      '   ' 
The  ,. 


Sontheni  P.ac.  P.. 


and  pur- 
?r,  therefore, 


LNDISCLOSED   PRIl'. 


the  defendant's  ticket  agen 
arr-.-:  of  Dana  O.  Coles,  I- 
agency  nor  disclose  his  pri 
chaser's  name  is  required  t 
back  part  of  the  book.    ^' 
agent  thus  to  sign  th- 
thereto,  instead  of  thai 
it  is  the  duty  of  the  sc 
the  front  part  of  the  ! 
and  entitled  to  trai 
the  selling  agent  e 
"D.  F.  Holden,"  t^ 
book  as  the  pun: 
going  from  Bif 
gave  the  book 
About  two  ' 
and  with  ^ 
on  ano'' 


lington.  by  the  plaintiff  as  the 
d  not  make  known  his 

•■  such  f- 'kots,  the  pur- 


0(i  to  the  CO!' 
;;;!.'. ir,  being  req, 
;n  question,   sigiv 
principal.     By  io-. 
lit  to  enter  the  ik 
-son  to  -s\' 
on.     In  . 
of  "A. 
:..  le  signed  i. 
j^et  was  then 
nd  and  retur... 


i^ 


front  part  of  ti 

and  th-r  t,,  ,miV:, 
gence  ' - 

by  the  p; 
book  for  i 
the  defendant 
defendant,  to 
sole  question. 
and  as  his  age: 
dpal.    In  these  cii 
action  for  a  breac 
the  name  of  eithe 
agent  because  he  ' 
party  to  the  contra^ 
person  really  interet,tc 
inaiic,  and  with  whom 
136;  Sims  V.  Bond,  5  i 

But  that  this  rule  of  .0. 
injustice  to  the  other  par 
theretr     -     — ••-■i'    --!i  ■ 


ited  in  the 

..  ;.;.  the  ticket 

his  own  name 

of  the  contract 

Ki-chaser's  name  in 

tttket  is  issued 

for  so  doing, 

riolden"  instead  of 

'  '  hack  part  of  the 

the  plaintiff  in 

■  |M.n  his  return,  he 
':  him  for  the  number  of  miles  used. 
he  plaintiff  hired  the  book  of  Coles, 
i  to  go  from  Burlington  to  Rutland 
hter's  name  had  then  been  inserted 

V  Coles  as  a  member  of  the  pur- 

tl  to  transportation  thereon.     In 

■'"t's  road,  the  plaintiff  offered 

self  and  daughter,  but  the 

u,  aiiu.  nicy  rode  without  paying  fare 

ntiff  was  arrested  at  the  request  of  the 

some  little  time  before  being  released. 

-  name  should  have  been  entered  in  the 

K^rson  to  whom  the  ticket  was  issued, 

•'  "A.  F.  Holden"  instead  was  negli- 

lil  further  that  the  damages  suffered 

he  conductor's  refusal  to  accept  the 

result  of  this  negligence  for  which 

urt  below  ordered  a  verdict  for  the 

i'f  excepted.     Was  this  error?  is  the 

■  ■     -book  for  Coles 
1    ;  ;.;.iicy  nor  his  prin- 

"  il -settled  rule  of  law  that  an 

'  ■    -''  '  may  be  brought  in 

in  the  name  of  the 

,  '  --'   -:=;  the  other 

^e  he  is  the 

benefit  it  was 

Ic.    Dicey  Part. 

!  \-.  Green,  9  V't.  407. 

•  ■xercised  as  to  work  an 

itract,  other  rules  incident 

'.,.,-,  ,  +  th!"<-'°  '"^  that  if  the 


i 


LIABILITY   THIRD    PARTY    TO   AGENT.  507 

action  is  brought  by  the  agent  in  his  own  name,  the  defendant  may- 
avail  himself  of  those  defenses  which  are  good  against  the  agent 
who  is  the  plaintiff  on  record;  also  of  any  defense  that  would  be 
good  against  the  principal  in  whose  interest  the  action  is  brought. 
Dicey  Part.  142 ;  2  Smith's  L.  C.  428. 

By  selling  the  mileage-book  the  defendant  contracted  with  the 
purchaser  to  accept  the  coupons  therein  for  transportation  of  the 
purchaser,  the  members  of  his  family,  members  of  his  firm,  or  sales- 
men of  the  firm,  whose  names  are  entered  by  the  selling  agent  of 
the  company  in  the  fore  part  of  the  book  as  persons  entitled  to 
transportation  thereon ;  that  only  the  persons  whose  names  are  thus 
entered  are  lawfully  entitled  to  such  use  of  the  book;  that  in  case 
of  any  desired  change  or  addition  in  the  names  of  such  persons,  the 
same  will  be  made  on  application  to  the  ticket  agent  at  the  station 
where  the  book  was  sold ;  and  that  no  change  in  such  name  or 
names  will  be  made  except  on  application  to  the  ticket  agent  of  this 
company  from  whom  it  was  purchased,  and  no  change  in  name 
will  be  recognized  unless  made  by  such  agent.  When  such  a  ticket 
is  sold,  the  name  of  the  purchaser  is  required  to  be  signed  to  the 
contract  in  the  back  part  of  the  book ;  and  when  thus  signed,  and  the 
ticket  is  accepted  by  him,  he  is  bound  by  the  terms  of  the  contract. 
Rahilly  v.  St.  Paul,  etc.,  Ry.  Co.,  66  Minn.  153;  Krueger  v.  Chi- 
cago, etc.,  Ry.  Co.,  68  Minn.  445,  64  Am.  St.  487;  Baylon  v.  Hot 
Springs  R.  R.  Co.,  132  U.  S.  146;  Fonseca  v.  Cunard  S.  S.  Co.,  153 
Mass.  553,  25  Am.  St.  Rep.  660;  Drummond  v.  Southern  Pac.  R. 
Co.,  7  Utah  118. 

When  the  plaintiff  hired  the  book  to  make  the  journey  in  ques- 
tion, he  informed  Coles  that  his  daughter  was  going  with  him, 
whereupon  her  name  was  inserted  in  the  book  as  before  stated. 
Assuming  that  her  name  might  properly  have  been  there  inserted 
as  a  member  of  the  purchaser's  family,  thereby  entitling  her  to 
transportation  upon  the  ticket,  under  the  provisions  of  the  contract 
it  could  be  done  only  by  the  ticket  agent  at  the  station  where  the 
ticket  was  sold.  Neither  the  plaintiff  nor  Coles  had  any  right  so  to 
insert  it. 

Such  tickets  are  usually  sold  at  lower  rates  than  common  regu- 
lar tickets,  and  are  good  for  transportation  between  all  stations  on 
the  road  of  the  company  selling  them.  Unless  sold  as  good  for 
transportation  of  bearer,  such  provisions  of  the  contract  as  have 
been  named  are  reasonable,  material,  and  important  in  preventing 
fraud  upon  the  railroad  company.  Without  provisions  for  that  pur- 
pose, the  name  of  any  one  intending  to  make  a  journey  over  the 
company's  road  might  be  inserted  in  a  mileage-book  by  its  owner 
or  possessor  as  he  saw  fit,  thereby  making  it,  to  all  intents  and  pur- 
poses, good  for  transportation  of  bearer. 

The  insertion  of  the  name  of  the  plaintiff's  daughter,  therefore, 


508  UNDISCLOSED    PRINCIPAL. 

was  a  material  alteration  of  the  contract  and  a  fraud  upon  the  de- 
fendant. Indeed,  her  name  was  thus  inserted  for  the  express  pur- 
pose of  enabling  the  plaintiff  to  make  a  fraudulent  use  of  the  ticket. 
It  is  an  established  principal  of  law  that  a  material  alteration  of  a 
written  contract  by  one  of  the  contracting  parties  without  the  con- 
sent of  the  other  operates  as  a  discharge  of  the  contract ;  "because," 
says  Lord  Kenyon  in  the  leading  case  of  Master  v.  Miller,  4  T.  R. 
320,  2  Eng.  R.  C.  669,  "no  man  shall  be  permitted  to  take  the  chance 
of  committing  a  fraud,  without  running  any  risk  of  losing  by  the 
event,  when  it  is  detected."  Chitty  on  Con.  868;  Bigelow  v.  Stil- 
phens,  35  Vt.  521 ;  Derby  v.  Thrall,  44  Vt.  413.  In  Bellows  v. 
Weeks,  41  Vt.  590,  this  rule  is  said  to  be  "founded  in  public  policy, 
and  tends  to  prevent  tampering  with  written  instruments  by  the 
parties,  who  are  under  a  temptation  to  do  so;  the  forfeiture  of  the 
original  instrument  operating  in  the  nature  of  a  penalty." 

This  defense  being  available  in  an  action  brought  by  the  agent  in 
his  own  name,  the  verdict  was  properly  ordered.  Let  judgment  be 
affirmed. 

Start,  J.,  concurs  in  the  result. 


HAYDEN  V.  ALTON  NATIONAL  BANK. 

Appellate  Court  of  Illinois.    29  111.  App.  458. 

Green,  P.  J. — Appellant  brought  suit  against  appellee  to  recover 
an  amount  of  money  deposited  with  the  latter  by  appellant  in  the 
name  of  "William  H.  Hayden,  Agent."  The  cause  was  tried  by  the 
court  without  a  jury,  under  a  plea  of  the  general  issue  and  notice 
of  "set-off,"  stating  that  the  defendant  would  insist  the  money  sued 
for  was  the  property  of  George  D.  Hayden  and  not  plaintiff's,  and 
came  to  and  was  received  by  plaintiff  as  age;it  for  George  D.  Hay- 
den, and  was  deposited  with  defendant  by  plaintiff  in  his  name,  but 
as  agent  for  George  D.  .Hayden,  who,  before  the  commencement 
of  this  suit,  was  and  is  indebted  to  defendant  on  three  notes,  two 
for  $1,000  each  and  one  for  $300  (describing  notes),  signed  by 
George  D.  and  Sarah  Hayden,  which  notes  became  due  before  the 
commencement  of  the  suit,  and  offers  to  set  off  and  allow  against 
demand  sued  for  so  much  of  said  money  due  from  said  George  D. 
Hayden  to  defendant  as  will  be  sufficient  to  satisfy  and  discharge 
such  demand.  No  findings  of  law  were  requested  on  behalf  of 
either  party.     The  court  found  the  issues  for  defendant  and  ren- 


I 


dered  iudG'inen: 


THIRD   PA]^ 

laintiff  for 


509 


:  against  mis  aci:oiint; 
drawn  by  appel' 
,.04,  to  recover  ^ 

llant  thai  nt 
■vss  received, 


S;^:^'-    .     :'         .isUic&b    ill    AitOil 

pt/tr-'d,    eiving  no  one  in  ch.'   _. 
after  his  departure  his  brother, 
as  he  says,  at  the  instance  of  creu.w 
charge  of  the  business  as  the  agent 
■   '.1  it  should  be  asceri  ■' 

•2  he  was  so  acting,  a 
•.lit  with  appellee  , 
t;>A   between   Septer 
to  the  credit  of  that 
for  $40  and  one  for  v- 
by  the  bank,  leaving  a  br. 
is  brought.     It  is  claimea  uu  jjcnan 
was  made  by  him  in  his  own  name : 
and  entered  by  appellee  up-n  its 
of  it  was  deposited  and  to  be  app 

:  •-'i  with  the  consent  of  the  bank,  and  under  this  state  of  facts  ap- 
p-Ii^e  had  no  lien,  as  a  bank,  upon  the  sum  deposited  for  the  debt 
of  George  D.  Hay  den,  and  had  no  legal  right  to  apply  such  balance 
of  the  deposit  as  a  credit  upon  ''-^  -  -  "^  '— ge  D.  and  Sarah 
Hayden,  or  set  off  such  note  a ,  ce.     The  state  of 

facts  so  claimed  to  exist  wa^    "  .  of  ap;    ' 

its  behalf  it  is  claimed  the  vn  ed  bv  r ; 

'.    ley  of  George  D.  Hayden.  a 
;::.   svn  to  defendant  by  plain ti tf , 
defendant  in  depositing  this  men: 
den  in  conducting  the  businr  - 
was  derived.    The  evidence  •' 
i' ;  's  by  the  respective  parti' 

.  5?,t,v  the  witfc?'^'?^  and  h 


be  gi\en  the  testimony  of  er. 
and  has  settled  that  conflict 
favor  of  defendant  below.     .'■ 

ur'ess  it  is    :       "    ''■ 
■-•.med  all  i 
the  court  below  vvos 
George  P    Hnvden, 
D.  Has  ,iey,  derived  trc: 

:s  at  the  tinic 

t.»  the  cc 


.epositea  v.  as  i)V 


5oS 


IV  V  ^  material  altera^ 

ni  the  de- 

iHt.     Indeed,  her 

ess  pur- 

y^^c  of  enabling  t'^^- 

-.  ^-    .:l    iic. 

(iie  ticket. 

It  is  an  establish <. 

•,v  that  -J. 

teration  of  a 

•en  contract  ■ 

the  con- 

,  of  the  other 

i;cause," 

says  Lord  K 

4  T.  R. 

320,  2  Eng.  I 

^  0  chance 

of  committji' 

■  '.t  running  any 

risk 

of  losing  by  the 

event,  when 

.'hitty  on  Con. 

868; 

Bigelow  V.  Stil- 

phens,  ^s  V 

Thrall,  44   Vx. 

■  413. 

In  Bellows  v. 

Wec^;-    ■■■   ' 

said  to  be  "founded 

in  public  policy, 

and 

'•\g  with  writft.n  instruments  by  the 

>■- 

Nation  to  do  i:u 

;  the.  forfeiture  of  the 

:  m  tiie  nature  ^'-f' 

■1  penalty.'' 

\ 

;    in  an  action 

■ 

■  by  the  agent  in 

n  1  ••. 

■■■   nT'on^-rK'   .'■ 

.ft   iiulonK-T't  he- 

.^      J..;   5.j.>  1' 


1888 


OF  111 


9  III.  App.  458. 


cO'i/t  w:. 
of  "set-ofi, 
for  was  the 
came  to  and 
'kvi   and  wa? 
Tent  for 
is  suit,  \VcL.> 
-1,000  each 
'>.  and  S: 
^ment  o 
• ned  for 
10  defer; 'J 
such  demand.     No 


f^A\  ;.^r     II; 


'^^ 


•  i"ht  suit  against  appellee  to  recover 

:th  the  latter  by  appellant  in  the 

.\gcnt."    The  cause  was  tried  by  the 

plea  of  the  general  issue  and  notice 

■  ■      tj-^e  money  sued 

t  plaintiff's,  and 

V  jeorge  D.  Hay- 

\\\  his  name,  but 

.    commencement 

.1  three  notes,  two 

y,  notes),  signed  by 

due  before  the 

id  allow  against 

said  George  D. 

y  and  discharge 

requested  on  behalf  of 

fi-.T     rlpff'tirlnvif'    'iniT    rt»n- 


LIABILITY    THIRD    PARTY   TO   AGENT.  509 

dered  judgment  against  plaintiff  for  costs,  whereupon  plaintiff  took 
this  appeal,  his  motion  for  a  new  trial  having  been  overruled.  It 
appears  from  the  evidence  said  George  D.  Hayden  had  been  en- 
gaged in  business  in  Alton  until  August  2,  1887,  when  he  disap- 
peared, leaving  no  one  in  charge  of  his  business;  that  a  few  days 
after  his  departure  his  brother,  the  appellant,  came  to  Alton,  and, 
as  he  says,  at  the  instance  of  creditors  of  George  D.  Hayden,  took 
charge  of  the  business  as  the  agent  of  his  brother  to  look  after  it 
until  it  should  be  ascertained  where  his  brother  was.  During  the 
\  time  he  was  so  acting,  and  on  September  3,  1887,  he  opened  an  ac- 
count with  appellee  in  the  name  of  "William  H.  Hayden,  Agent," 
and  between  September  3  and  7,  1887,  deposited  with  appellee 
to  the  credit  of  that  account  $566.54;  against  this  account  a  check 
for  $40  and  one  for  $22.50  had  been  drawn  by  appellant  and  paid 
by  the  bank,  leaving  a  balance  of  $504.04,  to  recover  which  this  suit 
is  brought.  It  is  claimed  on  behalf  of  appellant  that  this  deposit 
was  made  by  him  in  his  own  name;  that  it  was  received,  accepted 
and  entered  by  appellee  upon  its  books  as  his ;  that  the  greater  part 
of  it  was  deposited  and  to  be  appropriated  for  a  certain  specific  pur- 
pose with  the  consent  of  the  bank,  and  under  this  state  of  facts  ap- 
pellee had  no  lien,  as  a  bank,  upon  the  sum  deposited  for  the  debt 
of  George  D.  Hayden,  and  had  no  legal  right  to  apply  such  balance 
of  the  deposit  as  a  credit  upon  the  note  of  George  D.  and  Sarah 
Hayden,  or  set  off  such  note  against  said  balance.  The  state  of 
facts  so  claimed  to  exist  was  denied  on  behalf  of  appellee,  and  on 
its  behalf  it  is  claimed  the  money  was  deposited  by  plaintiff  as  the 
money  of  George  D.  Hayden,  and  it  was  so  understood  and  made 
known  to  defendant  by  plaintiff;  that  the  plaintiff  was  acting  with 
defendant  in  depositing  this  money  as  the  agent  of  George  D.  Hay- 
den in  conducting  the  business  out  of  which  the  money  deposited 
was  derived.  The  evidence  introduced  in  support  of  these  disputed 
facts  by  the  respective  parties  was  conflicting,  but  the  trial  court, 
who  saw  the  witnesses  and  heard  them  on  the  stand  while  being  ex- 
amined as  such,  occupied  a  position  and  had  an  opportunity  enabling 
it  to  determine  more  accurately  and  fairly  the  weight  and  credit  to 
be  given  the  testimony  of  each  witness  than  is  afforded  this  court, 
and  has  settled  that  conflict  and  determined  the  disputed  facts  in 
favor  of  defendant  below.  Such  finding  ought  not  to  be  disturbed 
unless  it  is  manifestly  and  clearly  wrong.  We  have  carefully  ex- 
amined all  the  evidence  contained  in  the  record  and  are  satisfied 
the  court  below  was  warranted  in  finding  that  plaintiff,  as  agent  of 
George  D.  Hayden,  deposited  the  money  with  the  bank  as  George 
D.  Hayden's  money,  derived  from  his  business  then  being  carried 
on  by  plaintiff  as  his  agent;  that  defendant  was  notified  of  these 
facts  at  the  time  said  account  was  opened,  and  was  never  informed 
to  the  contrary,  and  that  no  part  of  the  money  so  deposited  was  set 


5IO  UNDISCLOSED    PRINCIPAL. 

apart  or  appropriated  for  any  specific  purpose  with  the  knowledge 
or  consent  of  the  bank ;  and  in  saying  this  we  are  not  unmindful  of 
the  fact  that  Wade  testified,  after  the  balance  of  the  deposit  had 
been  endorsed  as  a  credit  upon  the  note  of  George  D.  and  Sarah 
Hayden,  and  plaintiff  was  told  of  it  and  made  no  objection,  plaintiff 
told  him  there  were  some  debts  incurred  he  felt  morally  bound  to 
pay,  and  exhibited  a  memorandum  showing  the  nature  and  amounts 
thereof,  aggregating  $207.11,  and  said  if  this  sum  was  allowed  he 
had  no  objection  to  such  application  of  the  balance,  and  thereupon 
witness,  after  consultation  with  his  associates  in  the  bank,  agreed 
to  the  request  and  consented  to  allow  him  that  sum.  No  lawful 
consideration  supports  such  promise,  and  the  next  day  the  plaintiff 
repudiated  the  arrangement  by  bringing  this  suit. 

If  this  finding  of  the  court  was  justified  by  the  evidence,  the  ques- 
tions remaining  to  be  decided  are,  could  defendant  below  set  off  a 
debt  of  George  D.  Hayden  against  the  demand  sued  for?  And  was 
the  note  upon  which  said  balance  was  endorsed  as  a  credit  a  debt 
of  his?  Both  of  these  questions,  we  think,  must  be  answered  in 
the  affirmative. 

When  appellant  claimed  and  was  known  to  be  acting  for  George 
D.  Hayden  merely  as  his  agent,  his  acts  and  contracts  must  be 
deemed  to  be  the  acts  and  contracts  of  his  principal  only,  and  "in- 
volve no  personal  responsibility  on  the  part  of  the  appellant."  Story 
on  Agency,  §  261,  et  seq.  And  in  an  action  by  him  to  recover  money 
due  his  principal,  a  debt  of  the  principal  may  be  set  off.  Hunting- 
ton V.  Knox,  7  Gush.  371.  If  the  suit  is  brought  in  the  name  of  the 
agent  instead  of  the  principal,  upon  any  contract  knowingly  made 
by  the  former  for  the  latter,  the  other  contracting  party  will  gen- 
erally be  entitled  to  make  the  same  defense,  and  establish  the  same 
claims  against  the  agent  that  he  would  be  entitled  to  if  the  suit  was 
brought  in  the  name  of  the  principal.    Story  on  Agency,  §  404. 

Where  a  depositor  is  indebted  to  a  bank,  the  latter  has  a  right  to 
apply  so  much  as  may  be  necessary  of  the  funds  deposited,  undis- 
posed of  and  remaining  in  its  hands,  to  the  payment  of  his  matured 
indebtedness.  Commercial  Bank  of  Albany  v.  Hughes,  17  Wend. 
94;  Morse  on  Banks  and  Banking,  27.  But  appellant  insists  that 
a  bank  has  a  right  of  set-off  against  a  deposit  only  in  a  case  where  a 
depositor  and  debtor  is  the  same  person,  and  that  here  appellant  is 
a  depositor  and  his  principal  is  the  debtor ;  hence,  under  the  rule, 
defendant  was  not  entitled  to  the  set-off  claimed.  In  law,  however, 
under  the  facts  found,  George  D.  Hayden  was  the  depositor,  not- 
withstanding the  deposit  was  made  by  his  agent.  The  authorities 
cited,  and  many  others  not  cited,  support  the  view  we  have  ex- 
pressed. If  the  finding  of  the  trial  court  was  justified  by  the  evi- 
dence, the  debt  of  George  D.  Hayden  due  defendant  was  properly 
allowed  as  a  set-off  against  the  demand  sued  for.    Appellant  claims. 


ivC    Ujl 


Hay- 
dens,  l>ur  was  a  joint  '  there- 
fcH-f  not  a  proper  .-^t-.  ■  T:r>ip 
reads  as  follows : 

"$I,000.  y\LjL 

"Ninety  days  after  date  I  promise  to  oav  to  i; 
National  Bank  one  thousand  dollars, 
per  annum  until  paid,  for  value  recc 
tional  Bank. 

"Geo.  D.  I] 
'Sarah  H. 

On  this  note  appci:>  ..  against  George  x.. 

den  alone,  and  if  so,  u  forbids  its  allowanc' 

set-off  against  any  ^  ':is  against  ar      "  :5ei 

off  of  a  joint  and  lie  debt  claij.  •  due 

one  of  the  makers  t'  v.  Parmlee,  lo  . : 

White  V.  Rogers,  6  ,  ,,^  .'ro;i5  other  ca?? 

this  rule. 

We  conclude,  therefore,  said  note  was  ^  )-■-  i  --     -^   -^    ■  •   .   .^ 
of  George  D.  Hayden  against  the  demand  sued  for,  and  the  cou. 
below  did  not  err  in  so  holding. 

The  judgment  of  the  circuit  court  i.s  affirmed. 

Judgment  affirmed. 


:ev;.ioii  '±. — i.ia,uility  of  AgeL 
BARTi;i: 


November  i8,  and  I 
'     2.    That,  if  the 
GeoffTP  T  Rpyp-.' 


;i,:..irt  or  appropnatv:*. 
(.T  consent  of  the  ban 
the  fact  that  Wade 
been  endorsed  as  n 
Hayden,  and  plai' 
told  him  there  v. 
pay,  and  exhibit'; 
thereof, 
had  tio  ', 
witness,,  aitv 
to  the  rec;r 
consider 
reptidial 
If  thi- 

tioiv-  • 

deiv 


e  knowU   ■  '"'■ 

linnnndfi'    > 

die  deposit  liad 

'    T).  and  Sarah 

tion,  plaintiff 

'.uiicv;  ■     hound  tc 

:  shown n  ,  amount::- 

'  said  if  v.as  allowed  he 

!on  of  til  :e,  and  thereupon 

:iis  associates  in  the  bank,  agreed 

allow  him  t.liat  sum.     No  lawful 

;omise,  and  the  next  day  the  plaintiff 

-  bringing-  this  suit. 

vas  justified  by  the  evidence,  the  ques- 

i.  are,  could  defendant  below  set  off  a 

rainst  the  demand  sued  for?    And  was 

-  was  endorsed  as  a  credit  a  debt 

,  we  think,  must  be  answered  iv, 


eraij,\ 
claims  a. 
brought 

Where 
apply  sa  mu 
posed  of  ani: 
indebtedness 
94;  Morse  c 
a  bank  has  a 
depositor  aiivi  (.:■ 
a  depositor  and 

■    ■■t  was  Th 

>  c  facts  ■ 

\V  ill. 

citeu, 

pressed.     If  the  tincl 
dence,  the  debt  of  Gv^v  ■ .: 
allowed  as  a  set-oflF  against 


--nown  to  be  acting  for  George 
his  acts  and  contracts  must  bt 
-  '"f  his  principal  only,  and  "in 
part  of  tlie  appellant."    Storv 
!  :n  an  action  by  him  to  recover  mone)- 
le  principal  may  be  set  ofif.    Hunting- 
■  the  suit  is  brought  in  the  name  of  the 
il,  upon  any  contract  knowingly  made 
the  other  contracting  party  will  gen- 
same  defense,  and  establish  the  same 
!ie  would  be  entitled  to  if  the  suit  wa- 
incipal.      "'  n  Agency,  §  404. 

'ed  to  a  ■    latter  has  a  right  to 

vtds  deposited,  undis- 
■     ,   ■ .  ,  unent  of  his  matured 

-  of  Albany  v.  Hughes,  17  Wend 
'■    "'7      "'''■■     i  nellant  insists  thai 
;n  a  case  where  ;: 
,>ei>ei;,  ,::ia  iiiat  here  appellant  i ; 
'le  debtor ;  hence,  under  the  rule 
-.et-off  claimed.    In  law,  however. 
Hayden  was  the  depositor,  not 
•y  his  agent.     The  authoritie; 
[)port  the  view  we  have  ex- 
>urt  was  justified  by  the  evi- 
due  defendant  was  properly 
'.'sued  for.    Appellant  claims. 


LIABILITY    AGENT    TO    THIRD   PARTY.  5II 

however,  that  the  note  upon  which  the  credit  of  $504.04  balance  of 
deposit  sued  for  was  endorsed,  was  not  a  debt  of  George  D.  Hay- 
den's,  but  was  a  joint  debt  of  him  and  Sarah  Hay  den,  and  there- 
fore not  a  proper  set-off  against  his  separate  demand.  The  note 
reads  as  follows : 

"$i,ooo.  Alton,  April  22,  1887. 

"Ninety  days  after  date  I  promise  to  pay  to  the  order  of  Alton 
National  Bank  one  thousand  dollars,  with  interest  at  eight  per  cent, 
per  annum  until  paid,  for  value  received,  payable  at  the  Alton  Na- 
tional Bank. 

"Geo.  D.  Hayden, 
"Sarah  Hayden." 

On  this  note  appellee  could  maintain  suit  against  George  D.  Hay- 
den alone,  and  if  so,  no  legal  objection  forbids  its  allowance  as  a 
set-off  against  any  separate  demand  of  his  against  appellant.  Set- 
off of  a  joint  and  several  note  against  the  debt  claimed  to  be  due 
one  of  the  makers  is  admissible.  Stadler  v.  Parmlee,  10  Iowa  23 ; 
White  V.  Rogers,  6  Blackf.  436,  and  numerous  other  cases  announce 
this  rule. 

We  conclude,  therefore,  said  note  was  a  proper  set-off  as  a  debt 
of  George  D.  Hayden  against  the  demand  sued  for,  and  the  court 
below  did  not  err  in  so  holding. 

The  judgment  of  the  circuit  court  is  affirmed. 

Judgment  affirmed. 


Section  4. — Liability  of  Agent  to  Third  Party. 

BARTLETT  v.  RAYMOND. 

1885.     Supreme  Judicial  Court  of  AIassachusetts. 
139  Mass.  275. 

Contract,  on  an  account  annexed,  for  goods  sold  and  delivered 
on  November  18,  and  December  4,  1882.  Answer:  i.  A  general 
denial.  2.  That,  if  the  goods  were  sold  at  all,  they  were  sold  to  the 
firm  of  George  J.  Raymond  and  Company,  in  which  firm  the  defend- 
ant was  not  a  partner,  and  had  no  interest.  Trial  in  the  superior 
court,  before  Brigham,  C.  J.,  who  allowed  a  bill  of  exceptions,  in 
substance  as  follows : 

The  following  appeared  in  evidence,  and  was  uncontradicted : 
From  1877,  to  July  24,  1882,  the  defendant  had  done  business  at  sev- 


512  UNDISCLOSED   PRINCIPAL. 

eral  places  in  Boston,  and  in  1879,  and  from  that  time  until  his  in- 
solvency, at  a  shop  on  Tremont  Row,  in  Boston,  under  the  firm  name 
and  style  of  George  J.  Raymond  and  Company.  On  July  24,  1882, 
he  was  adjudged  insolvent  luider  the  insolvents  laws  of  Massachu- 
setts, in  involuntary  proceedings  upon  a  creditor's  petition,  and  a 
warrant  was  issued,  and  the  messenger  took  possession  of  the  store 
and  goods,  and  excluded  the  defendant  and  retained  possession  until 
they  went  into  the  hands  of  the  assignees.  Afterwards,  one  John  G. 
Stewart,  Jr.,  put  a  stock  of  goods  into  the  same  shop,  and  carried  on 
business  under  the  same  firm  name  and  style,  of  George  J.  Raymond 
and  Company.  He  put  up  a  new  sign,  but  it  bore  the  same  firm 
name.  He  hired  the  defendant,  George  J.  Raymond,  as  a  clerk,  at  a 
salary  of  $3,000  a  year,  and  the  defendant  had  no  further  interest  in 
the  business.  The  plaintiffs  had  never  dealt  with  the  firm  of  George 
J.  Raymond  and  Company  before  the  insolvency  of  Raymond,  nor 
until  after  Stewart  had  commenced  to  do  business  under  that  firm 
name  at  that  shop,  and  there  was  no  evidence  that  they  had  any 
actual  knowledge  or  notice  of  the  defendant  or  his  business  history, 
or  of  Stewart  or  the  defendant's  relations  to  him,  before  the  transac- 
tions out  of  which  this  alleged  cause  of  action  arose.  One  of  the 
plaintiffs  went  into  this  shop  to  sell  goods ;  he  found  the  defendant 
there,  and  had  all  his  talk  with  him,  and  sold  the  bill  of  goods, 
charging  them  to  George  J.  Raymond  and  Company.  He  did  not 
make  any  inquiries  as  to  who  constituted  the  firm  of  George  J.  Ray- 
mond and  Company,  and  nothing  was  said  about  it.  The  bills  were 
sent  in  charged  to  George  J.  Raymond  and  Company,  and  the  goods 
were  sold  in  the  shop  owned  and  so  run  by  Stewart,  and  were  such 
goods  as  were  usually  sold  in  that  shop,  and  were  sold  by  the  plain- 
tiffs for  the  purpose  and  with  the  expectation  that  they  were  to  go 
into  the  stock  of  said  shop  for  sale  there.  No  question  was  made  as 
to  the  responsibility  of  John  G.  Stewart,  Jr. 

The  defendant  contended  that  the  plaintiffs  were  affected  with 
notice,  by  the  public  proceedings,  of  his  insolvency,  notwithstanding 
they  had  no  actual  knowledge  of  the  same,  as  bearing  upon  the 
question  whether  they  had  any  knowledge  or  cause  of  belief  that  the 
defendant  was  not  dealing  with  them  in  his  own  business,  and  asked 
that  the  jury  be  so  instructed.  The  judge  refused  to  give  such  in- 
struction. 

The  defendant  also  contended  that,  on  the  above  evidence,  he  was 
not  liable  in  this  action,  but  the  judge  declined  so  to  rule,  and  in- 
structed the  jury  that,  "if  George  J.  Raymond,  at  a  shop  bearing 
upon  it  the  sign  George  J.  Raymoxid  and  Company,  purchased  of 
plaintiffs  the  goods  described,  notwithstanding  it  was  a  fact  that,  at 
that  time  and  during  all  of  the  time  of  the  delivery  of  said  goods,  all 
the  business  of  that  shop  was  owned  and  conducted  by  John  G. 
Stewart,  but  under  the  name  of  George  J.  Raymond  and  Company, 
and  George  J.  Raymond  was  a  clerk  only  of  said  Stewart,  and  so 


acted  in  tl  r  said  g-oods 

liable  in  lii 

may  hav>-  ,o 

Gf'  ■::;- 

tin  .  •  k 

oni}  '..i  said  shop,  and  ti. 

'  ■  ■  '      tor  of  the  business  u; 

jury  returned  a  verdict  i 
".options. 
J. — The  defendant  n 
piirt  Oi  the  firm  : 
■n,  and  in  the  si; 
plaintiffs  had  no  nonce 
They  seem  to  have  kno\- 
excepted  to,  we  think  tl 
knew  the  name  of  Ra) 
does  not  appear  from  t 

''■<    -   me.     Wif  ..CSC  c;r.- 

ry  to  tl  e   of   cj 

■  .e  idccs  >  ouug  V.  Axtell,  cited  2  H.  Bi.  24^, 

•  ■  ;  ■•.  '  =on,  2  L  ^.2;  Poillon  v.  Secor,  61  N.  Y.  456. 

The  question  is  not  whether  another  defendant  should  have  been 
'"''ned,  but  whether  the  defendant  was  bound  by  the  contract. 

Ye  understand  the  defendant  to  abandon  the  susrs^estion  that  the 
i    .riffs  were  affected  with  co; 
..  ,.    ,  ■  him  in  i"-^o]vency,  and  t 
hi  dett  they  k. 

them  i'  ?s.     Th' 

actual  knowledge. 


ARGERSINGER 
1889.     Court  of  Appk 


Bradley,  J. — This  act^.i 
leged  to  have  been  sus' 
the  defendant  to  the  planu  ; 
the  plaintiff  recovered.    Th^ 


racting  a  •  at  the 


In  1  judged  ; 

seit.s,  m  involuntri 
warrant  v-^-  '-'^■■' 
and  g-ood> 
they  went  iu' ; 
Stewart,  Jr.,  i 
business  i  ' 
and  Com] 


name, 
salarv 
the  b'l 
J.  R. 
until 


I-]. 


gooa- 
tiffs  iw. 
into  the  S! 
to  the  re'^^ 

The  de; 
notice,  by  the 
they  had  no 
question  wheti. 
f^eft  ndant  was 
le  jury  1 
r  u  .M  ^ion. 

The  defendant  ;■ 
not  liable  in  this  : 
structed  the  jury  • 
upon  it  the  sign  '■ 
plaintiffs  the  goodc- 
that  time  and  during  a 
the  business  of  that  ::.: 
Stewart,  but  under  the 
and  George  J.  Ra)'Tnt..: 


ras  1)1- 

■  n  name 

,,  1882, 

-sachu- 

pon  a  '.  and  a 

:^*"'-  i'>''l.  ,■     ..  . .  -.  .  .  ..ic  store 

retained  possession  until 

I  :ii;a'.s.      ■  ■'  ■'        ^     [ohn  G. 

to  the  ?  ried  on 

and  style,  01  Lt<.orgc  j.  Raymond 

•,    sign,  but  it  tore  the  same  firm 

George  J.  Raymond,  as  a  clerk,  at  a 

•  '^  fendant  had  no  further  interest  in 

"/er  dealt  with  the  firm  of  George 

re  the  insolvency  of  Raymond,  nor 

need  to  do  business  under  that  firm 

■y  had  any 
'OSS  history, 
•re  the  transac- 
-     ^e.     One  of  the 
.ound  the  defendant 
.  .la  the  bill  of  goods, 
:  Company.     He  did  not 
:  iJie  firm  of  George  J.  Ray- 
aid  about  it.    The  bills  were 
u viviond  and  Company,  and  the  goods 
!^d  so  run  by  Stewart,  and  were  such 
lat  shop,  and  were  sold  by  the  plain- 
he  expectation  that  they  were  to  go 
ale  there.    No  question  was  made  as 
Stewart,  Jr. 

at  the  plaintiffs  were  affected  with 

,s,  of  his  insolvency,  notwithstanding 

.  ■  of  the  same,  as  bearing  upon  the 

-nowledge  or  cause  of  belief  that  the 

them  in  h;<    ,v.  ti  business,  and  asked 

The  jii'  ed  to  give  such  .. 

t,  on  the  above  evidence,  he  was 

\ge  declined  so  to  rule,  and  in- 

T    Raymond,  at  a  shop  bearing 

md  Company,  purchased  of 

anding  it  was  a  fact  that,  at 

'  'ie  delivery  of  said  goods,  all 

and  conducted  by  John  G. 

J.  Raymond  and  Company, 

nc  only  of  said  Stewart,  and  so 


I 


LIABILITY   AGENT    TO   THIRD   PARTY.  513 

acted  in  the  purchase  of  said  goods,  George  J.  Raymond  would  be 
liable  in  this  action  for  the  price  of  said  goods,  although  the  same 
may  have  been  charged  in  the  plaintiff's  books,  and  delivered,  to 
George  J.  Raymond  and  Company,  unless  he  disclosed  to  the  plain- 
tiffs, or  they  had  otherwise  notice  or  knowledge,  that  he  was  a  clerk 
only  in  said  shop,  and  that  said  Stewart  was  the  exclusive  owner  and 
conductor  of  the  business  there," 

The  jury  returned  a  verdict  for  the  plaintiffs;  and  the  defendant 
alleged  exceptions. 

Holmes,  J. — The  defendant  not  only  suffered  his  name  to  be  used 
as  part  of  the  firm  name,  but  made  the  bargain  for  the  goods  in  per- 
son, and  in  the  shop  bearing  the  firm  name  upon  its  sign.  The 
plaintiffs  had  no  notice  that  he  was  not  interested  in  the  business. 
They  seem  to  have  known  the  firm  name,  and  under  the  instruction 
excepted  to,  we  think  that  the  jury  must  have  found  that  they  also 
knew  the  name  of  Raymond,  with  whom  they  dealt.  Certainly  it 
does  not  appear  from  the  bill  of  exceptions  that  they  did  not  know 
his  name.  Without  inquiring  whether  all  these  circumstances  are 
necessary  to  the  defendant's  liability,  we  are  of  opinion  that  he 
is  liable  upon  the  facts  stated.  Young  v.  Axtell,  cited  2  H.  Bl.  242 ; 
Guidon  v.  Robson,  2  Camp.  302;  Poillon  v.  Secor,  61  N.  Y.  456. 
The  question  is  not  whether  another  defendant  should  have  been 
joined,  but  whether  the  defendant  was  bound  by  the  contract. 

We  understand  the  defendant  to  abandon  the  suggestion  that  the 
plaintiffs  were  affected  with  constructive  notice  of  the  proceedings 
against  him  in  insolvency,  and  that  this  must  be  taken  into  account 
in  determining  whether  they  knew  that  he  was  not  dealing  with 
them  in  his  own  business.  There  was  no  evidence  that  they  had 
actual  knowledge. 

Exceptions  overruled.^ 


ARGERSINGER  et  al.  v.  MacNAUGHTON. 

1889.     Court  of  Appeals  of  New  York.     114  N.  Y.  535. 

Bradley,  J. — This  action  was  brought  to  recover  damages  al- 
leged to  have  been  sustained  by  breach  of  warranty  in  the  sale  by 
the  defendant  to  the  plaintiffs  of  a  quantity  of  antelope  skins,  and 
the  plaintiff  recovered.    The  defendant  was  a  commission  merchant 

^  "A  person  contracting  as  agent  will  be  personally  responsible  where  at  the 
time  of  making  the  contract  he  does  not  disclose  the  fact  of  his  agency  and 
the  name  of  his  principal."  Gildersleeve,  J.,  in  Beidleman  v.  Kelly,  99  N.  Y. 
Supp.  907,  908. 

See  Elliott  v.  Bodine,  59  N.  J.  L.  567,  where  a  husband  acted  as  agent  of 
his  wife  without  disclosing  the  fact  of  agency. 

33 — Reinhard  Cases. 


514  UNDISCLOSED    PRINCIPAL. 

in  the  city  of  New  York.  The  sale  in  question  was  in  the  line  of  his 
business,  and  made  by  him  as  such  merchant.  The  referee  found 
that  the  warranty  was  made  by  the  defendant  that  they  were  a 
sound,  choice  lot  of  Indian-handled  skins,  free  from  damage  by 
worm-cut,  and  that  there  was  a  breach  of  such  warranty.  The  evi- 
dence on  the  part  of  the  plaintiffs  tends  to  prove  those  facts,  and 
for  the  purpose  of  this  review,  they  must  be  deemed  established. 
The  main  contention  on  the  merits  on  the  part  of  the  defendant  is, 
that  he  was  not  liable,  because  the  sale  was  made  by  him  as  agent 
of  his  consignors  of  the  property  sold.  Upon  that  subject,  the 
referee  found  that  the  defendant  did  not  sell  the  skins  upon  his 
own  account,  but  as  a  commission  merchant,  and  that  the  plaintiffs 
knew  that  he  was  acting  as  an  agent  only,  and  that  his  commission 
was  5  per  cent.  The  referee,  however,  determined  that  the  war- 
ranty was  the  undertaking  of  the  defendant,  and  that  he  was 
charged  with  liability  by  its  breach.  The  general  rule  is,  that  an 
agent  employed  to  do  an  act  is  deemed  authorized  to  do  it  in  the 
manner  in  which  the  business  intrusted  to  him  is  usually  done,  and 
such  is  the  presumed  limitation  upon  his  power  to  act  for  his  prin- 
cipal. Easton  v.  Clark,  35  N.  Y.  225;  Smith  v.  Tracy,  36  id.  yg; 
Upton  V.  Suffolk  Co.  Mills,  11  Cush.  586,  59  Am.  Rep.  163. 

While  the  defendant  dealt  in  the  property  of  others,  for  whom  he 
made  sales,  his  business  of  commission  merchant  was  his  own.  He 
undertook  to  sell  the  goods  sent  to  him  for  this  purpose,  and  to  ac- 
count to  his  consignors  for  the  proceeds,  less  his  commission.  As  be- 
tween him  and  them,  without  any  special  instructions  or  authority,  it 
would  seem  to  be  inferred  that  he  should  sell  the  goods  as  they  were. 
And  it  is  difficult  to  find  in  such  case  any  implication  of  power,  de- 
rived from  them,  to  undertake  that  the  goods  were  in  any  respect 
other  or  different  than  they  in  fact  were.  Unless  the  character  or  the 
quality  of  the  goods  consigned  to  him  is  communicated  by  the  con- 
signors, it  is  the  business  of  the  commission  merchant  to  ascertain 
what  they  are  in  that  respect,  and  put  them  upon  the  market  only  as 
such  ;  and  when  he  goes  beyond  that  he  is  not,  as  between  him  and  his 
principal,  within  the  authority  presumptively  conferred  by  the  latter 
upon  him.  It  does  not  appear  that  those  parties,  from  whom  the 
defendant  received  the  property  in  question  for  sale,  gave  him  any 
description  of  the  quality  or  condition  of  it,  or  that  he  acted  other- 
wise than  upon  his  own  knowledge  or  judgment  in  that  respect  in 
making  the  sale  and  warranty ;  nor  is  it  found  that  he  had  authority 
from  his  consignors  to  warrant  it.  But  there  was  some  evidence 
given,  on  the  part  of  the  defendant,  to  the  effect  that  it  was  the  cus- 
tom in  the  trade  of  commission  dealers  not  to  warrant  goods  sold. 
While  the  purpose  of  sucli  evidence  was  to  bear  upon  the  fact 
whether  any  warranty  was  made,  and  in  support  of  his  proof  that 
none  was  made  in  this  instance,  it  also  went  further,  and  may  have 
been  treated  as  bearing  upon  the  question  of  the  presumption  of  au- 


I  personal  iiabili 
...... its. 

:  elusion  wa-. 
.:>    the  warranty  mj  i  .  -. 
y,  pursuant  to  whirh  he 
i'he  defendant  did 
ny  manner  advised,  . 
who  sent  the  skins  to  trie 
tion  is  presented,  whet'^  - 
the  plaintiffs  such  infr. 
to  make  h  ' 

the  plaint; 

V-''.-  ;  ToperLV,  ijr  that  kUc  ^ 
f'OK'-..  In  such  case,  ther*: 
fendant  intended  to  make  ; 
the  purchasers.    And  the  p 


■k  of  the 

■  the 

re- 

jim 


..  JC^     11'.' 

:.f  the  c 
.ey  had  - 
iuclud"  • 
auv  ills  owii  as  I 
n  that  an  agent  c 


in  and 
in  his 


■wn  name  and  failing  to  disclose  the  name  of  his  prmcipal  at  the 
lime  of  making  a  contract  for  the  sale  or  purchase  of  goods,  is  per- 
sonally liable  for  whatever  obligation  nav  arise  out  of  the  contract, 
:.as  the  support  of  authority.    ' '  "  it,  17  Wend.  333;  Mor- 

ison  V.  Currie,  4  Duer.  79:  <  >  7?:  N    Y.  .'?4^.  :?7  Am. 

Rep.  51:  Ludwig  V.  Gilles 
Sav.  Bank,  44  Hun  412. 
i.se.    The  defendant  made  th'. 
.^mmission  merchant,  without 
nd  his  warranty  given,  to  pr- 
•   the  parties,  be  detr 
e  supposed  that  a  p- 

n  with  whom  he  1.- 

'   the:'-  he  i?  nrr  -t. 


not,  a 
named 

.   but  IL 
!  an<l  t 

The  ri 
'  freate..:  , 
-r,  unless 

less  sa 

::n- 

agent 

in  his 

,ime  of 


5^4 


V  of  Ne\', 

:ss,  and  maae  ;■ 

^he  warranty  \v, 

;,  choice  lot  of 

-cut,  and  that  t' 

on  the  part 


tiiat  he  was  i 
of  his   con  si  0 


knew  th^' 
was  5  p. 
ranty  w>' 


qual:^ 


descrip*-ion  of  the 

'         ■  •■'  upon  h 

le  sale  a; 


whei 


arrant' 


line  of 


I  lariiag'e    i 
:.    The  e  • 
<•  facts,  and 
■ '-^blished. 
jdant  is, 
■:  Tii.ioe  Dy  mm  as  agent 
Upon  that  subject,  the 
aul  uut  sell  the  skins  upon  his 
merchant,  and  that  the  plaintiffs 
ily,  and  that  his  commission 
r,  determined  that  the  Avar- 
icfendant,   and   that   he   was 
icacu.     The       '  "•  ^  rule  is,  that  an 
iS  deemed  a  to  do  it  in  the 

..:>  usually  done',  and 
to  act  for  his  prin- 
cicy,  36  id.  yg; 
op.  163. 
ot  others,  for  whom  he 
v:hant  was  his  own.    He 
this  purpose,  and  to  ac- 
his  commission.    As  be- 
rrnr-tinns  Or  authority,  it 
•'Is  as  they  were. 
ti  of  power,  de- 
were  in  any  respect 
the  character  or  the 
jnicated  by  the  con- 
erchant  to  ascertain 
i   .  '  the  market  only  as 

■  een  him  and  his 
cri  by  the  latter 
whom  the 
ve  him  any 
;Cted  other- 
.  i:i  ..;.iL  respect  in 
lat  he  had  authority 
was  some  evidence 
that  it  was  the  cus- 
ant  goods  sold. 
.    upon  the   fact 
ipport  of  his  proof  that 
t  further,  and  may  have 
the  presumption  of  au- 


LIABILITY   AGENT   TO   THIRD   PARTY.  515 

thority  from  his  principal.  If  the  custom  of  such  dealers  was  to  sell 
goods  as  they  were,  and  solely  upon  tlie  inspection  and  risk  of  the 
purchasers,  it  is  certainly  difficult  to  see  how  an}^  authority  from  the 
defendant's  principals  to  warrant  could  presumptively  arise  to  re- 
lieve him  from  personal  liability  for  such  undertaking  made  by  him 
to  the  plaintiffs. 

The  conclusion  was,  therefore,  permitted  that  the  defendant's  re- 
lation to  the  warranty  and  its  consequence  was  not  qualified  by  his 
agency,  pursuant  to  which  he  made  the  sale  to  the  plaintiffs. 

The  defendant  did  not  inform  the  plaintiffs,  nor  were  they  in 
any  manner  advised,  of  the  name  or  names  of  the  party  or  parties 
who  sent  the  skins  to  the  defendant  to  be  sold  by  him.  The  ques- 
tion is  presented,  whether  the  fact  that  the  defendant  failed  to  give 
the  plaintiffs  such  information  was  sufficient  to  deny  to  him  the  right 
to  make  his  agency  effectual  as  a  defense.  It  does  not  appear  that 
the  plaintiffs  had  any  knowledge  of  the  names  of  the  consignors  of 
the  property,  or  that  the  defendant  supposed  they  had  such  knowl- 
edge. In  such  case,  there  is  some  reason  to  conclude  that  the  de- 
fendant intended  to  make  the  warranty  his  own  as  between  him  and 
the  purchasers.  And  the  proposition  that  an  agent  contracting  in  his 
own  name  and  failing  to  disclose  the  name  of  his  principal  at  the 
time  of  making  a  contract  for  the  sale  or  purchase  of  goods,  is  per- 
sonally liable  for  whatever  obligation  may  arise  out  of  the  contract, 
has  the  support  of  authority.  Mills  v.  Hunt,  17  Wend.  333;  Mor- 
rison V.  Currie,  4  Duer.  79;  Cobb  v.  Knapp  71  N.  Y.  348,  27  Am. 
Rep.  51;  Ludwig  v.  Gillespie,  105  N.  Y.  653;  Jemison  v.  Citizens' 
Sav.  Bank,  44  Hun  412.  That  doctrine  is  applicable  to  the  present 
case.  The  defendant  made  the  contract  of  sale  in  his  own  name,  as 
commission  merchant,  without  disclosing  the  name  of  any  principal ; 
and  his  warranty  given  to  produce  it  may,  within  that  rule,  as  be- 
tween the  parties,  be  deemed  his  undertaking.  In  such  case,  it 
may  be  supposed  that  a  purchaser  relies  upon  the  responsibility  of 
the  person  with  whom  he  deals  for  the  performance  of  the  con- 
tract, and  that  he  is  not  required  to  look  elsewhere  to  obtain  it. 
When  there  is,  in  fact,  a  principal,  the  agent  may  ordinarily  relieve 
himself  from  personal  liability,  upon  a  contract  made  in  his  behalf, 
by  disclosing  his  name  at  the  time  of  making  it.  Upon  such  dis- 
closure, however,  the  party  proceeding  to  deal  with  the  agent  may 
or  may  not,  as  he  pleases,  enter  into  contract  upon  the  responsibility 
of  the  named  principal,  but  to  permit  an  agent  to  turn  over  to  his 
customer  an  undisclosed  and,  to  the  latter  unknown,  principal,  might 
have  the  effect  to  deny  to  the  customer  the  benefit  of  any  available 
or  responsible  means  of  remedy  or  reHef  founded  upon  the  con- 
tract. The  rule  is  no  less  salutary  than  reasonable  that  an  agent 
may  be  treated  as  the  party  to  the  contract  made  by  him  in  his 
own  name,  unless  he  advises  the  other  party  to  it  of  the  name  of 


5l6  UNDISCLOSED    PRINCIPAL. 

the  principal  whom  he  assumes  to  represent  in  making  it,  where  that 
is  unknown  to  such  party. 

This  proposition  is  not  inconsistent  with  the  general  rule  that  an 
agent,  acting  within  the  scope  of  his  authority  with  a  party  advised 
of  his  agency,  will  not  be  personally  charged,  unless  it  appears,  that 
such  was  his  intention.  Hall  v.  Lauderdale,  46  N.  Y.  70.  The  dis- 
closure of  his  agency  is  not  completely  made,  unless  it  embraces 
the  name  of  the  principal;  and  without  that  the  party  dealing  with 
him  may  understand  that  he  intended  to  give  his  personal  liability 
and  responsibility  in  support  of  the  contract  and  for  its  performance. 
The  cases  cited  by  the  defendant's  counsel,  having  the  relation  to 
the  right  of  set-off  in  behalf  of  a  person  who  has  dealt  with  an 
agent,  whose  agency  was  unknown  to  such  person,  have  no  nec- 
essary application  to  the  question  now  here.  In  those  cases  the 
question  arose  between  the  principal  and  the  party  dealing  with  the 
agent,  without  any  knowledge  of  his  agency,  and  upon  the  faith  that 
he  was  dealing  on  his  own  account  in  selling  property  in  his  posses- 
sion, and  of  which  he  apparently  was  the  owner.  And  in  such  cases 
the  right  of  the  party  purchasing  property  of  the  agent  to  set  off  a 
claim  against  the  latter,  in  an  action  brought  by  the  principal,  is 
dependent  upon,  not  only  want  of  actual  knowledge  of  the  agency, 
but  of  circumstances  which  would  direct  a  prudent  man  to  inquiry 
and  information  of  the  fact,  or  furnish  him  reason  to  believe  that  he 
was  dealing  with  an  agent :  Wright  v.  Cabot,  89  N.  Y.  570 ;  Nichols 
V.  Martin,  35  Hun  168,  and  cases  there  cited.  This  rests  upon  the 
principle  that  where  one  of  two  innocent  parties  must  suffer  loss,  it 
should  fall  on  him  who  has  furnished  the  means  and  opportunity  to 
another  to  do  that  which  is  done  by  the  latter  to  cause  it.  The  con- 
tract of  sale  was  an  executed  one,  and  while  the  return  of  the  prop- 
erty to  the  defendant  may  have  been  a  suitable  manner  of  amicably 
adjusting  the  matter,  the  plaintiffs  were  not  legally  required  to  do 
so.  After  the  skins  were  purchased  by  and  delivered  to  them,  the 
plaintiffs  had  the  right  to  retain  them,  and  seek  their  remedy 
founded  upon  breach  of  the  warranty.  Nor  is  it  seen  how  that  right 
is  qualified,  as  applied  to  this  case,  by  the  fact  that  the  defendant 
was  dealing  with  the  property  of  others  to  whom  he  was  required  to 
account  for  the  proceeds  of  sales  made  by  him.  He  was,  soon  after 
the  sale,  advised  of  the  claim  of  the  plaintiffs  for  damages  on  ac- 
count of  the  impaired  condition  of  the  skins ;  and  if  the  defendant, 
as  between  him  and  his  consignors,  acted  within  the  authority  de- 
rived from  them  in  making  the  warranty,  he  had  the  opportunity  of 
seeking  indemnity  in  some  manner  before  he  paid  over  such  pro- 
ceeds to  his  principals.  It  is  deemed  unnecessary  to  advert  more 
fully  to  the  evidence  in  support  of  the  facts  found  by  the  referee,  as 
it  does  not  appear  that  the  case  contains  all  the  evidence :  Porter  v. 
Smith,  107  N.  Y.  531. 

We  have  examined  all  the  exceptions  taken  by  the  defendant  on 


LIABILITY 

tiie  trial,  ana  . 
fiiid  no  en-(.  i  in  . 

'"  neni  siioaic  D': 


Neill,  J. — The  a} 
ance  claimed  to  be  c! 

stance  of  which,  as  a;  :^  foilov'. 

1903,  plaintiff  and  d^^  -    an  oral  . 

the  former  agreed  to  wf  tter  as  a  carpeii 

man  and  superintendent  on  of  fifteen  buiiv^u-. 

nated  by  numbers,  in  d-;.  'aso,  Tex.,  in  conside 

which  services  the  latter  :  and  agreed  to  pay  him 

day  for  his  work  as  a  1   and  2^2   per  cent,   of 

cost  of  the  buildings,  this  peixentage  to  be  paid  upon  the  couipieiion 
of  the  houses;  that  in  pursuance  of  the  contract  plaintiff  worked  as 
a  carpenter  and  as  foreman  and  su})erintendent  in  the  construction 
of  nine  of  the  buildings  until  V--  -e  tinished,  and  constructed  the 
foundations  for  two  of  the  nd  furnished  plans  for  them 

all,  but  that  on  the  15th  of  .3,  the  d   " 

continued  plaintiff's  services  .  ct:  that 

of  the  buildings  erected,  inc 
completed,    was   $22,000;    a- 

tiff  the  $4.50  per  day  for  his  ter,  he  ; 

refuses  to  pay  him  the  2j/^  p  ••■-<^  ^^' 

amounting  to  $550,  for  whi 
by  a  general  denial  a.  '     " ' 
•wnership  in  the  bui.  . 
'  never  did  have  an_v 

ion  he  ever  had  with 

itive  of  T.  M.  Bower  a^ 

se  lots  they  were  constrr; 

!iad  no  personal  interest 
were  erected,  nor  ar 

.V  that  there  was  no 

tally  and  personally  ■ 

■  construction.     This 

';    Brovr!  V    ^itip"    f^o  Mir*-  nz  J]],  123 


Si6 


1  .r-;rT  rv'iir: 


vvhoin  he  ass 
lo  such  party. 
Thts  proposition  is  not 
agent,  acting  within  the  s 
of  his  agency,  will  not  b*. 
such  was  his  intentior 
closure  of  his  agenr 
the  name  of  the  i    ' 
him  may  unders^ 
and  responsi' 
The  cases  c" 
the  right  of 
agent,  v^"- 
essarv  ' 


tne 


umci  to 


nakmg  it,  where  tUa* 


another 
tract  of 
erty  to 
adjustin 

so'      Afi 


is  qualified, 
was  dealing  v. 
account  for  the  ■ 
the  sale,  advise^ 
count  of  the  im; 
as  between  him 
'-ived  fi-om  then"- 
indemn; 
his  pr?i; 
fully  to  the  evidence  in  *■ 
it  does  not  appear  that  tl: 
Smith,  107  N.  Y.  531. 
We  have  examined  all 


inc  .'  that  a:' 

:.  t.  V  advise*' 

'.rirs,  thai 
I .  /w.     The  dis- 
kless it  embrace- 
>e  party  dealing  witl: 
t.  his  personal  liabilit; 
'.  and  for  its  performance 
■ol,  having  the  relation  tf 
■A  person  who  has  dealt  with  ai 
.vn  to  such  person,  have  no  nee 
n  now  here.     In  those  cases  th-, 
;  ;ncipal  and  the  party  dealing  with  th 
^  01  his  agency,  and  upon  the  faith  that 
•roperty  in  his  posses. 
r  !,    And  in  such  case:: 
property  of  the  agent  to  set  off 
y^rivt  brought  by  the  principal,  i 
knowledge  of  the  agency 
A  t  a  prudent  man  to  inquir, 
1  him  reason  to  believe  that  h. 
.  t  V.  Cabot,  89  N.  Y.  570;  Nichol 
■  there  cited.    This  rests  upon  th' 
■t'.es  must  suffer  loss,  •.. 
;;ais  and  opportunity  t 
one  by  the  latter  to  cause  it.    The  con 
'  one,  and  while  the  return  of  the  prop 
-ve  been  a  ^li table  manner  of  amicabh 
lintiffs  were         '       'ly  required  to  d 
rchased  by  ;.  cred  to  them,  th' 

in   them,   and   seek   their   rei 
inty.    Nor  is  it  seen  how  that     - 
s  case,  by  the  fact  that  the  defendaiv 
of  other'5  ■■'     ^  -m  he  was  required  <■ 
■\es  mao  He  was,  soon  afte- 

f  the  ^.'1  ./iiui.s  for  damages  on  ac 
'f  tlie  skins;  and  if  the  defendant 
'  within  the  authority  de 
he  had  the  opportunity  ol 
eiore  he  paid  over  such  pre 
1  unnecessary  to  advert  mor., 
•  facts  found  by  the  referee,  s 
:,-,.:   A]  fh,^  />,  iri-pce:  Porte-  • 

me  eisCv'j'Mons  taken  cy  ine  defendcfnt  on 


« 


LIABILITY   AGENT   TO   THIRD   PARTY.  517 

the  trial,  and  to  the  conclusions  of  fact  and  law  of  the  referee,  and 
find  no  error  in  any  of  the  rulings  to  which  they  were  taken. 
The  judgment  should  be  affirmed.^ 


BOOK  V.  JONES. 

1906.     Court  of  Civil  Appeals  of  Texas,     98  S.  W.  891. 

Neill,  J. — The  appellee  sued  appellant  to  recover  $550,  the  bal- 
ance claimed  to  be  due  him  by  appellant  upon  a  contract,  the  sub- 
stance of  which,  as  alleged,  may  be  stated  as  follows :  That  in  March, 
1903,  plaintiff  and  defendant  entered  into  an  oral  contract  by  which 
the  former  agreed  to  work  for  the  latter  as  a  carpenter  and  fore- 
man and  superintendent  in  the  erection  of  fifteen  buildings,  desig- 
nated by  numbers,  in  the  city  of  El  Paso,  Tex.,  in  consideration  of 
which  services  the  latter  promised  and  agreed  to  pay  him  $4.50  per 
day  for  his  work  as  a  carpenter  and  2^/2  per  cent,  of  the  total 
cost  of  the  buildings,  this  percentage  to  be  paid  upon  the  completion 
of  the  houses ;  that  in  pursuance  of  the  contract  plaintiff  worked  as 
a  carpenter  and  as  foreman  and  superintendent  in  the  construction 
of  nine  of  the  buildings  until  they  were  finished,  and  constructed  the 
foundations  for  two  of  the  others,  and  furnished  plans  for  them 
all,  but  that  on  the  15th  of  September,  1903,  the  defendant  dis- 
continued plaintiff's  services  under  said  contract ;  that  the  total  costs 
of  the  buildings  erected,  including  the  foundations  of  the  two  un- 
completed, was  $22,000;  and  that,  while  defendant  paid  plain- 
tift'  the  $4.50  per  day  for  his  work  as  a  carpenter,  he  has  failed  and 
refuses  to  pay  him  the  2^  per  cent,  upon  the  cost  of  the  buildings, 
amounting  to  $550,  for  which  he  sues.  The  defendant  answered 
by  a  general  denial  and  pleaded  specially  that  he  had  no  interest  or 
ownership  in  the  buildings  alleged  to  have  been  erected  by  plaintiff, 
and  never  did  have  any  interest  in  any  of  them ;  that  the  only  con- 
nection he  ever  had  with  such  buildings  was  as  the  agent  and  repre- 
sentative of  T.  M.  Bower  and  James  S.  Book,  for  whom  and  on 
whose  lots  they  were  constructed ;  that  plaintiif  knew  that  defend- 
ant had  no  personal  interest  in  the  property  upon  which  the  build- 
ings were  erected,  nor  any  property  or  interest  in  the  buildings,  and 
knew  that  there  was  no  reason  why  defendant  should  become  indi- 
vidually and  personally  liable  for  the  same  or  any  debt  incident  to 
their  construction.    This  is  as  much  of  the  answer  pertinent  to  the 

^Accord:    Brown  v.  Ames,  59  Minn.  476;  INIacDonald  v.  Bond,  195  111.  122. 
Where  an  agent  contracts  without  disclosing  his  principal,  he  is  not  relieved 
from  individual  liability  by  the  fact  that  he  afterwards  discloses  his  principal's 
name.    Lull  v.  Anamosa  Nat.  Bank,  no  la.  537. 


5l8  UNDISCLOSED    PRINCIPAL. 

assignments  of  error  to  be  considered  as  need  be  stated.  The  case 
was  tried  before  a  jury  who  returned  a  verdict  in  plaintiff's  favor  for 
$348.75,  upon  which  the  judgment  appealed  from  was  entered. 

The  first  assignment  of  error  is  as  follows :  "The  court  erred  in 
its  general  charge  wherein  the  jury  was  instructed  as  follows:  'And, 
if  you  further  believe  from  the  evidence  that  said  W.  P.  Book  did 
not  disclose  his  agency,  then  you  will  find  for  the  plaintiff.'  That 
said  charge  was  erroneous  and  prejudicial,  in  this:  The  evidence 
showed,  or  tended  to  show,  that  the  contract  of  employment  of 
plaintiff  was  entered  into  by  and  between  plaintiff  and  Mark  Miller, 
and  the  evidence  showed,  or  at  least  tended  to  show,  that  the  plain- 
tiff knew  that  Mark  Miller  and  T.  M.  Bower  were  interested  in  the 
ownership  of  the  land  upon  which  said  houses  designated  as  in 
block  900  were  erected,  and  the  evidence  further  showed,  or  tended 
to  show,  that  the  plaintiff  knew  that  Mark  Miller  and  T.  M.  Bower 
were  interested  in  the  proposed  construction  and  ownership  of  the 
houses,  to  be  erected  in  said  block  900,  and  that  at  the  time  when 
plaintiff  was  employed  by  Miller  to  work  as  foreman  and  superin- 
tendent at  $4.50  per  day  the  plaintiff  did  not  know  and  had  never 
met  the  defendant,  W.  P.  Book.  Such  being  the  state  of  evidence, 
it  was  error  in  the  court  to  charge  the  jury  to  find  for  the  plaintiff, 
unless  they  believed  from  the  evidence  that  the  said  W.  P.  Book 
did  not  disclose  his  agency;  for  under  said  instruction  the  jury  was 
precluded  from  the  consideration  of  the  evidence  showing  or  tending 
to  show  that  plaintiff  knew  that  defendant  was  merely  acting  as 
agent."  The  proposition  asserted  is  that  it  was  error  to  charge  the 
jury  to  find  for  plaintiff  unless  it  believed  from  the  evidence  de- 
fendant did  not  disclose  his  agency.  It  is  an  elementary  principle 
of  law  that,  where  an  agent  conceals  the  fact  of  his  agency  and 
enters  into  a  contract  in  his  own  name  as  the  ostensible  principal,  he 
may  be  treated  as  the  principal  by  the  party  with  whom  he  deals, 
and  may  be  held  liable  on  the  contract  to  the  same  extent  as  if  he 
were  the  principal  in  interest.  Sydnor  v.  Hurd,  8  Tex.  98 ;  Johnson 
V.  Armstrong,  83  Tex,  325,  18  S.  W.  594,  29  Am.  St.  648;  Wil- 
liams V,  Blum  (Tex.  Civ.  App.),  55  S.  W.  374.  This  principle  is 
just,  and  works  no  hardship  upon  the  agent,  because  he  has  it  in 
his  power,  if  he  desires  to  escape  personal  liability,  to  do  so  by 
disclosing  his  principal  and  contracting  in  his  name.  The  charge 
complained  of  is  in  accordance  with  this  principle,  and  is  not  er- 
roneous. 

The  second  assignment  of  error  is  as  follows :  "The  court  erred 
in  refusing  special  charge  No.  i  asked  by  defendant,  which  was 
as  follows :  'You  are  charged  that  before  you  can  find  for  the  plain- 
tiff, you  must  believe  that  the  defendant  expressly  agreed  per- 
sonally to  pay  to  the  plaintiff  (in  addition  to  the  per  diem  of  $4.50 
per  day)  2J/2  per  cent,  commission  on  the  total  cost  of  said  buildings, 
and  you  must  further  believe  from  the  evidence  that  the  plaintiff 


.1^!      vud   circumstances 
wii:    i    notice,  if  reasonaL.. 
ijiy.-   .,:\i  the  ownership  of  s.. 

find  for  the  defendani  -- 
i   to  correct,  and  -would 
:_  .     ■        ;r' -ral  char 
ti>"-  i/i.i,'i.u!t  if  they  ' 
his  agency."     The 
the  special  charge  c 
the  general  charge  p- 

which  tended  to  show  .  .  ic,   ._:    ■,  u 

of  the  fact  that  defenda:  i  with  the  ::■• 

oes  was  merely  that 
llee  was  put  upon  r 
i'  would  not  be  .on  oi  liie  ruic  ; 

ed  in  our  disposf  ,  ,       _nt.     The  duty  is  t:;, 

the  agent-,  if  he  would  avoid  personal  liabilit^y,  to  disclose  his  agency, 
and  not  upon  others  to  discover  it,  and  if  he  fails  so  to  do,  ^nd 
deals  with  persons  unaware  of  his  agency,  he  must  answer  per- 

ally  for  the  liabilities  he  contracts  .( Sydnor  v.   Hurd,  supra.; 

J  win  V.  Leonard,  39  Vt  260,  94  Am.  Dec.  324;  Bickford  v.  First 
Nat.  Bank,  89  Am.  Dec.  436;    -  rer  \.  \' 

N.  Y.  535,  21  N.  E.  1022,  II  .-  87);  a: 

make  such  a  disclosure,  the  presu  ~  that  h'. 

himself    personally.     Raymond  *^'    F 

(Mass.)  3ip;  Cobb  v.  Knapp,  7 
is  held  in  Argersinger  v.  Mac? 
to  turn  over  to  his  customer 

"A"n,  principal,  might  hav. 

J  fit  of  any  available  or   ' 

"ided  upon  the  contracts. 

!sed. 

his  disposes  of  all  the 
:;nrce  of  the  judgment, 
lied. 


AM 


-This  V  'udgment 


the  dci< 


m; 


undisclose; 


;  to  be  c 
\  ris  tried  beiore  a  jury  w, 
^^348.75,  upon  which  the 
The  first  assignment  c 
its  general  charge  wh 
if  you  further  behe\ : 
not  disclose  his  : 
said  charge  was 
showed,  or  ten(' 
plaintiff  was  cnt; 
and  the  evici 
tiff  knev  ^'^ 
ownersl 
block  9'' 
to  sho" 
wer 


no 


''it  ill 
ieut 


jury  to  tino 
f endan;    '   ' 
of  law 
enters  i. 
may  be 
and  may  ik. 
were  the  pri 
Armstron 
liams  V.  Bill., 
just,  and  w< 
'  '  ver,  11  r- 

g  his  pi 
led  of  i' 

J  he  second  a> 
ir.   refusing  spec.c. 
as  follows :  'You  are 
tiff,   you  must  belie 
sonally  to  pay  to  the 
per  day)  2^  per  cent.  » 
and  you  must  further 


.ecd  be  stated.    The  cast 
iT's  favor  for 
Tiered. 

erred  in 
j^.  it!iiu\vs;  *And 
=  W.  P.  Book  di.; 
.   ;or  the  plaintiff.'     Tha' 
d,  in  this :  The  evidence 
■   contract  of  employment  o; 
;  een  plaintiff  and  Mark  Miller , 
'.St  tended  to  show,  that  the  plain 
.  M.  Bower  were  interested  in  tin 
iich  said  houses  designated  as  ir 
iic  evidence  further  showed,  or  tende<l 
w  that  Mark  Miller  and  T.  M.  Bowf 
construction  and  ownership  of  tli. 
:!v  900,  and  that  at  the  time  whei 
:.o  work  as  foreman  and  superin 
<'fr  did  not  know  and  had  nevei 
!  being  the  state  of  evidence, 
jury  to  find  for  the  plaintiff, 
e  that  the  said  W.  P.  Bool- 
said  instruction  the  jury  wa; 
c  evidence  showing  or  tending; 
defendant  was  merely  acting  a: 
:  is  that  it  was  error  to  charge  the 
it  believed  from  the  evidence  de- 
i,^ucy.     It  is  an  elementary  principle 
conceals  the  fact  of  his  agency  anc' 
mme  as  the  ostensible  principal,  he 
ly  tb'^  r>artv  with  whom  he  deals, 
same  extent  as  if  be 
■■ ,  8  Tex.  98 ;  Johnsoi , 
>  Am.  St.  648;  Wil 
D.-)  -•    '■•  o74-     This  principle  ii 
■ri  the  agent,  because  he  has  it  it) 
,  .  llity,  to  do  so  b> 

.ixie.     The  charg': 
vith  this  prmciple,  and  is  not  er 

as  follows:  "The  court  errec' 
'   1>y  defendant,   which  w;i 
you  can  find  for  the  plain - 
nt   expressly  agreed  per 
to  the  per  diem  of  $4.5^ 
'>tai  cost  of  said  build  1' 
v-.vidence  that  the  ph' 


LIABILITY    AGENT   TO    THIRD    PARTY.  519 

did  not  know  or  had  no  notice  of  the  ownership  of  said  property  in 
block  900  by  Miller  &  Bower,  and  if  you  believe  that  under  all  the 
facts  and  circumstances  that  the  plaintiff  was  put  upon  notice, 
which  notice,  if  reasonably  followed  up  by  inquiry,  would  have 
disclosed  the  ownership  of  said  property  to  be  in  Bower  and  Miller, 
you  will  find  for  the  defendant' — for  the  reason  that  said  charge  was 
designed  to  correct,  and  would  have  corrected,  the  error  in  the 
court's  general  charge,  to  the  effect  that  the  jury  should  find  for 
the  plaintiff  if  they  believed  that  said  W.  P.  Book  did  not  disclose 
his  agency."  The  contention  of  appellant  is  that  the  refusal  of 
the  special  charge  embraced  in  the  assignment  was  error,  because 
the  general  charge  precluded  the  jury  from  considering  the  evidence 
which  tended  to  show  that  plaintiff  knew  or  was  put  upon  notice 
of  the  fact  that  defendant's  connection  with  the  construction  of  the 
houses  was  merely  that  of  an  agent.  If  it  should  be  conceded  that 
appellee  was  put  upon  notice  of  the  fact  of  appellant's  agency,  the 
latter  would  not  be  relieved  from  the  operation  of  the  rule  enun- 
ciated in  our  disposition  of  the  first  assignment.  The  duty  is  upon 
the  agent,  if  he  would  avoid  personal  liability,  to  disclose  his  agency, 
and  not  upon  others  to  discover  it,  and  if  he  fails  so  to  do,  and 
deals  with  persons  unaware  of  his  agency,  he  must  answer  per- 
sonally for  the  liabilities  he  contracts  (Sydnor  v.  Hurd,  supra.; 
Baldwin  v.  Leonard,  39  Vt.  260,  94  Am.  Dec.  324 ;  Bickford  v.  First 
Nat.  Bank,  89  Am.  Dec.  436;  Argersinger  v.  MacNaughton,  114 
N-  Y.  535,  21  N.  E.  1022,  II  Am.  St.  687)  ;  and,  if  he  does  not 
make  such  a  disclosure,  the  presumption  is  that  he  intended  to  bind 
himself  personally.  Raymond  v.  Crown  &  E.  Mills,  2  Mete. 
(Mass.)  319;  Cobb  v.  Knapp,  71  N.  Y.  349,  2y  Am.  Rep.  51.  As 
is  held  in  Argersinger  v.  MacNaughton,  supra.-  "To  permit  an  agent 
to  turn  over  to  his  customer  an  undisclosed,  and  to  the  latter  un- 
known, principal,  might  have  the  eff'ect  to  deny  to  the  customer  the 
benefit  of  any  available  or  responsible  means  of  remedy  or  relief 
founded  upon  the  contracts."  The  requested  charge  was  properly 
refused. 

This  disposes  of  all  the  assignments  of  error  and  requires  an 
affirmance  of  the  judgment. 

Affirmed. 


AMANS  V.  CAMPBELL. 

1897.     Supreme  Court  of  Minnesota.     70  Minn.  493. 

Mitchell,  J. — This  was  an  action  to  recover  personal  judgment 
against  the  defendant  Campbell  for  services  in  a  logging  camp,  and 
to  have  the  amount  adjudged  a  lien  on  the  logs  which  belonged  to 
the  defendant  lumber  company ;  but  the  questions  presented  by  this 


520  UNDISCLOSED    PRINCIPAL. 

appeal  relate  exclusively  to  plaintiff's  right  of  action  against  Camp- 
bell. 

The  undisputed  evidence  is  that  Campbell  personally  employed 
plaintiff ;  that  neither  at  the  time  of  making  the  contract  nor  during 
the  times  plaintiff  was  performing  the  services  did  he  disclose  any 
agency,  unless  it  was  by  the  use  of  the  name  of  "Campbell  &  Co." 
in  the  written  contract  (Exhibit  A)  which  he  procured  from  plain- 
tiff, and  in  the  signature  of  time  checks  which  he  issued  to  the  plain- 
tiff and  other  laborers  in  the  camp ;  that  in  using  this  name  he  in 
no  way  indicated  that  he  was  agent  for  some  one  else,  or  that  he 
himself  was  not  "Campbell  &  Co.,"  or  the  Campbell  of  "Campbell 
&  Co.,"  unless  such  facts  were  indicated  by  the  use  of  the  name 
itself ;  that  from  start  to  finish  he  was  the  only  person  who  appeared 
in  connection  with  the  business,  and  had  to  all  appearances  the  ex- 
clusive management  and  control  of  it,  precisely  as  if  he  himself  had 
been  the  principal. 

Neither  at  the  time  of  making  the  contract  nor  while  performing 
it  had  plaintiff  any  knowledge  or  notice  of  any  agency,  or  that 
Campbell  was  not  the  principal,  unless  he  was  chargeable  with  such 
notice  by  the  fact  that  Campbell  used  the  name  "Campbell  &  Co."  in 
the  contract  (Exhibit  A)  and  in  signing  time  checks  to  workmen. 
While  one  of  the  members  of  the  lumber  company  testified  that  he 
knew  that  "Campbell  &  Co."  meant  Delia  Campbell,  the  wife  of  the 
defendant  Campbell,  and  that  he  thought  that  people  generally 
throughout  the  community  knew  that  fact,  yet  there  is  not  a  single 
fact  in  evidence  tending  to  support  that  opinion.  It  had  been  testi- 
fied to  that  the  "firm"  of  "Campbell  &  Co."  consisting  of  Delia 
Campbell  alone,  had  existed  for  about  three  years,  but  there  was  no 
evidence  that  she  had  ever  conducted  any  business  under  that  name, 
unless  it  was  the  logging  operations  during  the  winter  of  1896-97 
at  the  camp  at  which  the  plaintiff  was  employed ;  and  it  appears  that 
even  in  that  business  she  never  appeared  or  took  any  part  in  person. 

The  defense  interposed  in  this  action  was  that  "Campbell  &  Co." 
was  Delia  Campbell,  and  that  the  defendant  Campbell  was  merely 
her  agent.  There  is  much  in  the  evidence  tending  to  show  that  de- 
fendant himself  was  in  fact  "Campbell  &  Co."  But  assuming  that  in 
fact  he  was  merely  an  agent  for  his  wife,  the  case  was,  upon  the 
evidence,  one  for  the  application  of  the  rule  that  a  person  acting  as 
the  agent  for  another  will  be  personally  responsible  if,  at  the  time  of 
making  the  contract  in  his  principal's  behalf,  he  fails  to  disclose  the 
fact  of  his  agency;  that  by  reason  of  such  failure  he  becomes  subject 
to  all  the  liabilities,  expressed  or  implied,  created  by  the  contract,  in 
the  same  manner  as  if  he  were  the  principal  in  interest,  i  Am.  & 
Eng.  Ency.  Law  (2d  ed.)   1122,  and  cases  cited. 

The  case  is  one  not  merely  of  an  undisclosed  principal,  but  of  an 
undisclosed  agency.  The  fact  that  the  defendant  used  the  name 
of  "Campbell  &  Co.,"  but  without  indicating  in  any  way  that  he  did 


r  me 
^  was 


gest  thai  there  were  others 
think  ihai  would  be  all. 
me;'iu.rs  other  than   defen 

Jly  known  as  such  in  t::<. 
ented.     Tn   snob  cusq  ki 
.  mio-ht  i        ' 
e  of  the 
point.     In  Preston  \ 
■  counsel,  the  plai-  ^^■ 
.  person,  and  not 
The  view  we  have  .<< 
ider  any  of  the  otlier 
raised  by  them  h-i\ 
have  concluded  tli;. 
Order  affirmed.' 


i  witn  i- 


at  we 


^r  that 


seem  to  us 

od  linger, 

so  much  relied  on 

luracted  '..-. 

•'   :i:i'-;  '•    ]:<    ',:-•'.>:  rt^  f 

party  v/hon 

■■'^:  case  re 

■   i^tj::- 

ats  of  i 

noints 

FORREST 


.RTHY 


.11,  J.-y-iiie  p. 
■Hi  IS  principal  on  '; 

he   was  acting  merely 
brought  to  recover  for 
Continental  Storage  Warei 
witli  the  defendant,  purs-" 
age.    It  appears  that  th' 
of  the  proprietors  of  th 
'also  the  owners  of  the  ' 
'.'  were,  a: 

':;:■.  :.dntiff. 

the  deiendani,  and,  unL. 
;,n  ;.nrent,  he  would  be  . 
lid.  42;  Whitman  \- 


■ses  no  <1\ 


i  \"ni :-;(■[( )SR 


.'^^  ,  ;.:ai  relate  exciusiveiy  to  p 
i-cli. 

'J  uuted  evider 

pla'i        ,       it  neither  at  ' 
the  times  plaintiff  w<- 
agency,  unless  it  wa? 
in  the  written  contTo 
tiff,  and  in  the  si;;"": 
tiff  and  other  Is 
no  way  indi. 
himself  war. 
&  Co.," 

itself  ;tl:-    .     ... 
in  connection  wi* 
clu?"-"  '■ 


a  against  Camp- 


Canipbe 
evidence  v,. 
unless  it  wa - 
at  the  camp  ;i 
even  in  that  I 

The  ci 
was  Dei 
her  agent, 
fendant  himi-i. 
fact  he  was  met- 
evidence,  one  for 
the  agent  for  an*^;' 
n'.'iking  the  contr. 
J    .1  of  his  as^enc^ 
to  all  the  lia: 
the  srune  m  . 
Eng.  Ency.  Law  (^2d 

The  case  is  one  not  .. 
undisclosed  agency.     Tlr 
of  "Campbell  &  Co.,"  but 


.:  did  lie  disclose  any 
..«.  of  "Campbell  &  Co." 
.  he  procured  from  plain- 
vviiich  he  issued  to  the  plain- 
hat  in  using  this  name  he  ir 
iit  for  some  one  else,  or  tha'   • 
,"  or  the  Campbell  of  "Cami-  ■ 
re  indicated  by  the  use  of  the  name 
he  was  the  only  person  who  appeared 
ss,  and  had  to  all  appearances  the  ex- 
•'     /  '*   precisely  as  if  he  himself  had 

'Tor  while  performinj.^ 

:!ny  agency,  or  liiai 

ble  with  such 

.     .bell  &  Co."  in 

.Avg  time  checks  to  workmen. 

i>er  company  testified  that  he 

elia  Campbell,  the  wife  of  the 

,'_'ht   that   people   gener;/!'\ 

.  ;.  yet  there  is  not  a  sinric 

Lt  opinion.    It  had  been  testi- 

;   &  Co."  consisting  of  Delia 

■r  about  three  years,  but  there  was  no 

''p'-ted  any  business  under  that  name, 

■  ons  during  the  winter  of  1896-97 

(ill  was  employed;  and  it  appears  that 

;  appeared    .r  took  any  part  in  person. 

"' ^    npbell  &  Co." 

,  .  1  was  merely 

lo  show  that  de- 

--',::.  assuming  that  in 

tor  his  e  was,  upon  tlie 

^  ^f  the  ,  .u ..  .uau  ti  person  acting  as 

aally  responsible  if,  at  the  time  of 

'    '  lit,  he  fails  to  disclose  the 

failure  he  becomes  subject 

reated  by  the  contract,  in 

nal  in  interest,     i  Am.  it 

cited. 

■  .closed  principal,  but  of  an 

uit  the  defendant  used  the  name 
-  -'-  -i-^g  in  any  way  that  he  did 


LIABILITY   AGENT   TO   THIRD   PARTY.  521 

SO  as  agent,  and  not  as  his  own  business  name,  did  not,  under  the 
circumstances,  amount  to  a  disclosure  of  an  agency.  There  was 
nothing  in  this  to  indicate  that  he  was  not  "Campbell  &  Co."  or 
the  Campbell  of  "Campbell  &  Co."  The  name  might  probably  sug- 
gest that  there  were  others  associated  with  him  as  partners,  but  we 
think  that  would  be  all.  If  there  had  been  a  firm  consisting  of 
members  other  than  defendant  doing  business  under  that  name, 
generally  known  as  such  in  the  community,  a  different  case  would 
be  presented.  In  such  case  knowledge  of  the  fact  of  defendant's 
agency  might  be  chargeable  to  the  plaintiff. 

None  of  the  cases  cited  by  defendant's  counsel  seem  to  us  to  be 
in  point.  In  Preston  v.  Foellinger,  24  Fed.  680,  so  much  relied  on 
by  counsel,  the  plaintiff  contracted  with  the  actual  party  in  interest 
in  person,  and  not  with  the  party  whom  he  sought  to  hold  liable. 

The  view  we  have  taken  of  the  case  renders  it  unnecessary  to  con- 
sider any  of  the  other  assignments  of  error,  as  none  of  the  points 
raised  by  them  have  any  bearing  upon  the  ground  upon  which  we 
have  concluded  that  the  case  should  be  decided. 

Order  affirmed.^ 


FORREST  V.  McCarthy. 

1899.     Supreme  Court  of  New  York.     61  N.  Y.  Sup.  853. 

Leventritt,  J. — The  plaintiff  in  this  action  seeks  to  charge  the 
defendant  as  principal  on  the  ground  that  he  failed  to  disclose  that 
he  was  acting  merely  in  a  representative  capacity.  The  suit  is 
brought  to  recover  for  the  loss  of  certain  articles  stored  with  the 
Continental  Storage  Warehouse.  A  preliminary  interview  was  had 
with  the  defendant,  pursuant  to  which  the  goods  were  sent  for  stor- 
age. It  appears  that  the  defendant  was  simply  a  clerk  in  the  employ 
of  the  proprietors  of  the  Continental  Storage  Warehouse,  who  were 
also  the  owners  of  the  premises  it  occupied ;  but  it  does  not  appear 
that  these  facts  were,  at  the  time  of  the  bailment,  directly  communi- 
cated to  the  plaintiff.  The  transactions  were  conducted  entirely  by 
the  defendant,  and,  unless  the  plaintiff  was  aware  that  he  was  merely 
an  agent,  he  would  be  liable  as  a  principal.  Brockway  v.  Allen, 
17  Wend.  42;  Whitman  v.  Johnson,  10  Misc.  725,  31  N.  Y.  Supp. 

'  "The  law  imposes  no  duty  on  the  plaintiff,  in  dealing  with  the  defendant,  to 
inquire  and  ascertain  whether  or  not  the  defendant  was  acting  as  an  agent, 
in  order  to  fix  a  ]ial)iHty  on  the  defendant.  On  the  contrary,  it  was  the  duty 
of  the  defendant  in  dealing  with  the  plaintiff,  if  it  were  acting  as  the  agent  of 
another,  in  order  to  escape  liability,  to  have  informed  the  plaintiff  of  its 
agency."  Dowdell,  J.,  in  Armour  Packing  Co.  v.  Vietch- Young  Produce  Co., 
(Ala.),  39  So.  680,  683. 


522  UNDISCLOSED    PRINCIPAL. 

1009;  Cobb  V.  Knapp,  71  N.  Y.  348.  Her  own  testimony,  how- 
ever, clearly  indicates  that  she  was  consciously  dealing-  with  him  as 
the  representative  of  the  Continental  Storage  Warehouse.  She 
testifies  to  previous  dealings  with  the  same  concern,  and  to  a  similar 
contract,  made  through  the  defendant's  predecessor,  whom  she 
refers  to  by  name,  and  explicitly  identifies  as  the  then  "manager" 
of  the  warehouse.  She  likewise  designates  the  defendant  as  the 
manager  during  the  time  of  the  arrangements  here  under  considera- 
tion. From  her  statements,  and  from  a  letter  introduced  in  evi- 
dence, she  knew  that  she  was  dealing  with  a  concern  known  as  the 
Continental  Storage  Warehouse,  and  her  admissions  negative  the 
idea  of  a  contractual  relation  with  the  defendant.  Under  these 
circumstances  the  justice  was  right  in  holding  that  the  proper  party 
defendant  was  not  before  the  court. 

Judgment  affirmed,  with  costs  to  the  respondent.    All  concur.^ 


COBB  V.  KNAPP. 

1877.     Court  of  Appeals  of  New  York.     71  N.  Y.  348. 

Church^  Ch.  J. — This  was  an  action  for  the  purchase-price  of  a 
quantity  of  wheat  alleged  to  have  been  sold  by  the  plaintiff  to  the 
defendant.  The  defense  was  that  the  defendant  purchased  the 
wheat  as  agent  or  broker  for  C.  A.  Steen  &  Co.  It  seems  to  have 
been  conceded  that  the  defendant  did  in  fact  purchase  the  wheat, 
as  a  broker  for  the  firm  named,  who  were  his  principals,  and  the 
main  contention  on  the  trial  was  whether  the  defendant  at  the  time 
of  the  purchase  disclosed  his  principals,  and  whether  he  made  the 
purchase  in  his  own  name  and  upon  his  own  responsibility.  The 
only  exception  in  the  case  is  upon  a  refusal  to  grant  a  non-suit,  and 
a  request  to  direct  a  verdict  for. the  defendant.  The  court  charged 
the  jury  that  a  broker,  although  acting  for  another,  makes  himself 
personally  liable  if  he  contract  in  his  own  name,  and  without  dis- 
closing the  name  of  his  principal,  and  that  this  would  be  so,  although 
the  seller  supposed  at  the  time  that  he  was  acting  as  a  broker  or 
agent  for  another;  that  the  subsequent  disclosure  of  the  principal, 
and  the  commencement  of  an  action  against  him  by  the  seller,  would 
not  discharge  the  broker  from  personal  liability.  There  were  no 
exceptions  to  the  charge,  and  I  do  not  understand  that  the  learned 

^  "It  is  quite  immaterial  whether  the  agent  disclose  his  character  or  his 
principal  himself,  if  it  be  actually  known  at  the  time  to  the  other  party.  For 
in  such  a  case  the  agent  will  not  be  bound,  unless  he  enter  into  such  a  con- 
tract as  will  bind  him  at  all  events."  Scates,  J,,  in  Chase  v.  Debolt,  7  111. 
371,  374- 


■:\-i\-i'-:V-l  lor  111' 

:-l'<:ci.-  ;  but  be 

suit  shouid  bave  w.j 

Tliere  was  a  sharp  o. 

took  place  at  the  time  oi  ' 

to  review  the  facts  any  far' 

sufficient  upon  any  constrr. 

to  give  them  to  justify  a  ■^■ 

clusively  proved  which,  as 

a  verdict.    The  crcVl'"   ' 

ous  evidence,  and  ■ 

stances,  are  exclusi 

often  reiterated  by  l 

and'  quite  unnecessary 

natural  that  parties,  wl^ 

gle  to  have  what  they 

is  the  almost  daily  exprj  lei'Ce  oi   ii!"r    j'juvt  to   !ia^ '. 

fact  pressed  upon  our  attention  in  some  form  as  qu; 

while,  except  in  a  few  cases,  the  review  of  facts  is  confined  b 

ute  to  the  special  and  g^eneral  terms  of  the  courts  below. 

jurisdiction  is  fixed  by  the  constitution  and  the  statute,  and  we  hav 


■s   to   SI- 


no  authority  to  depart  from  ^''* 
dence  of  the  defendant,  wb 
true,  established^  clearly  a 
he  purchased  the  wheat  for 
tiff,  and  that  it  was  up  ' 
purchase-price,  and  that 
him  at  the  time,  nor  for 
pose  of  determining  wh;  • 
for  non-suit,  we  must  t 
was  sufficient  to  sustain  in 
The  plaint jff  testified  that  '. 
but  that  the  defendant 
credit,  and  directed  tha' 
to  him.  and  a  bill  mad-^ 
to  pay.     If  the  jurv  ?.<'- 
a  case  of  liabiiity. 
It  is  argued  that  be.cL. 
for  "Blissville  Distiller- 
a  sufficient  disclosure  ot   y" 
The  plaintiff  states  that  he  f 
tillery,  and  that  tlie  defend- 
to  him. 

Tlic  case  of  Waddell  -. 

22  ),    is    ''ii-i'il  Th-i     -:■■ 

$T(X>   }• 

brig,  ;: 


'nitations.     In  this  case  the  e\\ 
>  some  extent  corroborated,  i 

liability.     He  te-'  ''         ' 
and  so  informef 
en  &  Co.  " 

')t  mnlcp  "^' 


I  NDisrr/ 


iy  indicates  that 
>;-    J    >.  .tentative  of   "'^ 
tei>tif:e=i  ro  previous  de; 
CO! 'tract,    made    thr  i 
rcfc-ro  to  by  name, 
of  the  warehouse, 
manager  -during  t] 
tion.     From  her 
dence,  she  kne"- 
Continental  S 
idea  of  a  cofkj  a  i 
circumstance<i  the  i 


same 


■iiTion}',  he, 

'.th  him  as 

uise.     She 

o  a  similjir 

'   : ;  ■  '    m    she 

nager" 

,  nates   die  vieieiKiauc  as  the 

, ,  ments  here  under  considera- 

\ii  from  a  letter  introduced  in  evi- 

caling  with  a  concern  known  as  the 

.;,  and  her  admissions  negative  the 

with  the  defendant.     Under  these 

ght  in  holding  that  the  proper  party 

•Qurt. 

>  to  the  respondent.    All  concur. '^ 


KNAPP. 


main  cont 
of  the  pu:. .:.. 
i^urchase  in  hi- 
'^nly  exceptioi; 
a  request  to  d- 
the  jury  that  a  b. 
•  '  r<^onally  liable  • 
r  the  name  < 
.,-.     tiler  suppose 
acent  for  anothei 


:cpi 


to  Liie  ciia- 


'■  "It  is  quite  immatcri. 
principal  himself,  if  it  be 
in  such  a  case  the  agent 
tract  as  will  bind  him  a 


Mew  York.    71  N.  Y.  348. 

.   -,  purchase-price  of  a 

i  by  the  plaintiff  to  the 

I    1  ,c    defendant   purchased   the 

,    Steen  &  Co.    It  seems  to  have 

iU  did  in  fact  purchase  the  wheat, 

,  v.-ho  w"'-''  his  principals,  and  the 

'.    '  fendant  at  the  time 

ij^  aether  he  made  the 

upon  !  es|X)nsibility.     The 

•>  :i  -^r-f  ■'<■  a  nori-suit,  and 

court  cliarged 

makes  himself 

id  without  dis- 

h>c  so,  although 

as  a  broker  or 

irc  of  the  principal, 

'  ,.i.ij  by  the  seller,  would 

ibihty.     There  were  no 

crstand  that  the  learned 

'    -^  his  character  or  his 

.  the  other  party.    For 

"I-'-  info  such  a  COP- 

Debolt,  7  '■  I 


LIABILITY   AGENT   TO   THIRD   PARTY.  523 

counsel  for  the  appellant  claims  that  it  was  erroneous  in  these  re- 
spects ;  but  he  insists,  from  the  facts  appearing  in  the  case,  a  non- 
suit should  have  been  granted  or  verdict  ordered  for  the  defendant. 
There  was  a  sharp  conflict  of  evidence  between  the  parties  as  to  what 
took  place  at  the  time  of  the  contract.  This  court  has  no  power 
to  review  the  facts  any  farther  than  to  ascertain  whether  they  are 
sufficient  upon  any  construction,  which  the  jury  were  authorized 
to  give  them  to  justify  a  verdict,  and  whether  any  fact  was  con- 
clusively proved  v/hich,  as  matter  of  law,  entitled  the  defendant  to 
a  verdict.  The  credibility  of  witnesses,  the  construction  of  ambigu- 
ous evidence,  and  in  general  inferences  to  be  drawn  from  circum- 
stances, are  exclusively  for  the  jury.  These  views  have  been  so 
often  reiterated  by  this  court,  that  it  seems  idle  to  refer  to  them, 
and  quite  unnecessary  to  cite  authorities  to  sustain  them.  It  it 
natural  that  parties,  who  feel  aggrieved  by  verdicts,  should  strug- 
gle to  have  what  they  regard  as  injustice  remedied,  and  hence  it 
is  the  almost  daily  experience  of  this  court  to  have  questions  of 
fact  pressed  upon  our  attention  in  some  form  as  questions  of  law, 
while,  except  in  a  few  cases,  the  review  of  facts  is  confined  by  stat- 
ute to  the  special  and  general  terms  of  the  courts  below.  Our 
jurisdiction  is  fixed  by  the  constitution  and  the  statute,  and  we  have 
no  authority  to  depart  from  their  limitations.  In  this  case  the  evi- 
dence of  the  defendant,  which  was  to  some  extent  corroborated,  if 
true,  established  clearly  a  case  of  non-liability.  He  testified  that 
he  purchased  the  wheat  for  Steen  &  Co.,  and  so  informed  the  plain- 
tiff, and  that  it  was  understood  that  Steen  &  Co.  was  to  pay  the 
purchase-price,  and  that  the  plaintiff  did  not  make  any  claim  against 
him  at  the  time,  nor  for  several  years  afterwards.  But  for  the  pur- 
pose of  determining  whether  it  was  a  legal  error  to  deny  the  motion 
for  non-suit,  we  must  take  the  evidence  of  the  plaintiff.  If  that 
was  sufficient  to  sustain  the  action,  the  jury  had  a  right  to  adopt  it. 
The  plaintiff  testified  that  not  only  was  the  principal  not  disclosed, 
but  that  the  defendant  expressly  purchased  the  wheat  on  his  own 
credit,  and  directed  that  it  be  charged  to  him  ;  that  it  was  charged 
to  him,  and  a  bill  made  against  him,  which  he  repeatedly  promised 
to  pay.  If  the  jury  adopted  the  plaintiff's  evidence,  it  made  clear 
a  case  of  liability.  (Storv'  on  Agency,  §§  266,  267;  44  N.  Y.  349.) 
It  is  argued  that  because  the  defendant  stated  that  the  property  was 
for  "Blissville  Distillery,"  and  was  to  be  delivered  there,  that  was 
a  sufficient  disclosure  of  the  principal,  but  this  is  not  conclusive. 
The  plaintiff  states  that  he  did  not  know  the  proprietors  of  the  dis- 
tiller}-, and  that  the  defendant  directed  the  property  to  be  charged 
to  him. 

The  case  of  Waddell  v.  iNIordecai  (3  Hill  [South  Carolina  Rep.] 
22),  is  cited.  That  was  an  action  against  the  defendant  to  recover 
$100  paid  on  a  contract  executed  by  the  defendant  as  agent  of  a 
brig,  and   signed  "M.  C.   Mordecai  for  the  owners."     The  agent 


524  UNDISCLOSED    PRINCIPAL. 

had  paid  the  money  to  his  principals  before  the  commencement  of 
the  action,  and  the  court  held  that  the  plaintiffs  could  not  recover. 
The  learned  judge  who  delivered  the  opinion  reasoned  that  the  dis- 
closure was  sufficient,  but  put  the  decision  upon  the  ground  mainly, 
that  it  appearing  that  the  defendant  had  acted  in  good  faith  and 
delivered  the  money  to  his  principals,  the  equitable  action  for  money 
had  and  received  could  not  be  sustained.  The  general  current  of 
authority  is  against  the  sufficiency  of  such  a  signing  to  relieve  the 
agent  from  liability,  but  it  is  unnecessary  to  express  an  opinion  of 
its  correctness,  because  in  this  case  the  agent,  if  the  plaintiff's  evi- 
dence is  to  be  credited,  contracted  expressly  on  his  own  credit.  The 
other  case  depended  on  is  Southwell  v.  Bowditch  (i  Law  Rep. 
[Com.  Pleas  Div.]  100,  and  same  case  on  appeal,  p.  374).  The 
contract  signed  by  the  defendant  was :  "I  have  this  day  sold  by 
your  order,  and  for  your  account  to  my  principals,  five  tons,"  etc. 
The  common  pleas  division  held  this' to  be  a  contract  of  purchase 
by  the  broker,  and  that  he  was  liable.  The  court  of  appeals  re- 
versed the  decision,  holding  that  it  was  a  contract  of  sale  by  the 
broker,  and  not  of  purchase,  and  that  it  must  be  construed  accord- 
ing to  its  tenor  like  other  contracts. 

This  decision  does  not  aid  the  defendant. 

The  case  of  Raymond  v.  The  Proprietors  of  the  Crown  and  Eagle 
Mills  (2  Met.  319),  is  in  point  for  the  plaintiff.  The  agent  pur- 
chased goods  saying  they  were  for  C.  &  E.  Mills,  and  ordered  them 
to  be  so  marked.  They  were  charged  to  the  agent.  The  C.  &  E. 
Mills  were  a  corporation.  At  the  trial  the  judge  charged  that  these 
facts  were  not  conclusive  evidence  of  the  knowledge  of  the  plain- 
tiffs, that  R.  was  the  agent,  and  the  Crown  and  Eagle  Mills  the 
principal,  and  the  supreme  court  sustained  the  decision,  holding 
that  the  language  was  ambiguous,  and  was  properly  left  to  the 
jury.  Here  the  distillery  named  was  not  a  corporation,  and  its  name, 
therefore,  conveyed  no  idea  of  its  owners.  It  is  not  sufficient  that 
the  seller  may  have  the  means  of  ascertaining  the  name  of  the  prin- 
cipal. If  so,  the  neglect  to  inquire  might  be  deemed  sufficient.  He 
must  have  actual  knowledge.  There  is  no  hardship  in  the  rule  of 
liability  against  the  agents.  They  always  have  it  in  their  own 
power  to  relieve  themselves,  and  when  they  do  not,  it  must  be  pre- 
sumed that  they  intend  to  be  liable. 

The  subsequent  disclosure  of  the  principals  by  the  agent,  and  the 
commencement  of  an  action  against  them  is  not  conclusive  of  an 
election  to  hold  them  responsible  only.  (2  Met.,  supra;  10  [Queen's 
Bench  L.  R.]  57.)  In  the  recent  case  of  Beymer  v.  Bonsall  (79 
Pa.  R.  298),  it  was  held  that  neither  the  agent  nor  principal  in  such 
a  case  would  be  discharged  short  of  satisfaction.  The  fact  of  com- 
mencing the  action  and  the  statements  in  the  complaint  were  proper 
for  the  jury  upon  the  contested  fact,  but  they  did  not  operate  as  a 
legal  discharge.     It  was  claimed  by  the  plaintiff  that  the  action 


L.'.'.ijiL.J  i  '.       .-\(.7t.iN  1      iU     iili  5-25 

was  c<  'liat  a 

certain        ,  :• 'en  & 

Co.,  wlr.ch  was  untr  discharge 

tI-ix.  .!  '^--ndant. 

case  was  proper  1}  if  the  re 

it  was  the  error  or  uv. 
'n  in  the  case  jitstifving:  . 
laust  be  affirmed. 
All  concur. 
Judginent  affirmed.' 

^  See  Greenbyrg  v.  Palmi 


^24. 


UNDISCLOSED   PRINCIPAL. 


.  .     .  -  money  to  li' 
;tion,  and  the  co; 
•  :c  learned  judge  wl; 
closure  was  sufficient, 
appearing  '' 
red  the  mon 
iui.j.  and  received 
authority  is  again  - 
agent  from  habiUty,  br 
its  correctness,  ^  ■■'  '"^ 
dence  is  to  be 
other  case  dej-.tTaiea 
[Com.  Pleas  Div.]    t 
contract  signed  b} 
your  order,  and  f 
The  common  i 


;)rinr'');ds  before  the  commencement  of 

the  plaintiffs  could  not  recover. 

e  opinion  reasoned  tliat  the  dis- 

ccision  upon  the  ground  mainly, 

ut  had  n       '  d  faith  and 

^,  the  eq  tor  money 

tained.  -  urrent  of 

of  such  ;  relieve  the 

unecessary  *,  an  opinion  of 

case  the  agei-.,    .   ,  .c  plaintiff's  evi- 

cd  expressly  on  h>s  own  credit.   The 

uthwell  V.  Bowditch    (i   Law  Rep. 

^ame  case  on  appeal,  p.  374).     The 

mt  was:     "I  have  this  day  sold  by 

'Hit  to  my  principals,  five  tons,"  etc. 

;•- kl  this  to  be  a  contract  of  purchase 

IV  V.-a])\c^    The  court  of  appeals  re- 

s  a  contract  of  sale  by  the 

''■  ■-■■-*■  ' nstrued  accord- 


tacts  wei' 
tiffs,  •' 
princi, 
that  the   ; 
jury.    Her. 
therefore,  con 
the  seller  may  :,.. 
'ipal.    If  so,  the  i 
iinist'  have  actual 
]  lability  against  t 
r  to  relieve  t^ 
that  they  \u 
i  iie  subsequent  ■ 
commencement  of  :. 
election  to  hold  them  : 
Bench  L.  R.]  57.)     1 
Pa.  R.  298),  it  was  he": 
a  case  would  be  dischn 
mencing  the  action  anti 
for  the  jury  upon  the  con; 
legal  discharge.     It  was 


-ors  of  the  Crown  and  Eagle 

ibe  plaintiff.     The  agent  pur- 

C.  &  E.  Mills,  and  ordered  them 

itarged  to  the  agent.     The  C.  &  E. 

Me  trial  the  judge  charged  that  these 

ace  of  the  knowledge  of  the  plain- 

nd  the  Crown  and  Eagle  Mills  the 

irt   snst-ined   the  decision,   holding 

rly  left  to  the 

n,  and  its  name, 

owners,     it  is  not  sufficient  that 

(  pr'  ;ini"n     .be  name  of  the  prin- 

med  sufficient.    He 

V'  i:s  Hi.)  jiirdship  in  the  rule  of 

always  have   it   in  their  own 

'  not,  it  must  be  pre- 

nt,  and  the 

-   ;  -usive  of  an 

supra;  10  [Queen's 

ner  v.  Bonsall   (79 

■')r  principal  in  sucih 

The  fact  of  com- 

nplaint  were  proper 

mkI  not  operate  as  a 

riff  that  the  action 


LIABILITY   AGENT   TO   THIRD   PARTY.  525 

was  commenced  upon  the  representation  of  the  defendant,  that  a 
certain  responsible  person  was  a  member  of  the  firm  of  Steen  & 
Co.,  which  was  untrue ;  but,  however  this  was,  it  did  not  discharge 
the  defendant. 

The  case  was  properly  submitted  to  the  jury,  and  if  the  result  is 
wrong-,  it  was  the  error  of  the  jury.  We  are  unable  to  find  any 
exception  in  the  case  justifying  a  reversal  of  the  judgment,  and  it 
must  be  affirmed. 

All  concur. 

Judgment  affirmed.^ 

^  See  Greenbijrg  v.  Palmieri,  71  N.  J.  L.  83,  supra,  page  489. 


CHAPTER  XI. 

DUTIES  AND  LIABILITIES  OF  PRINCIPAL  TO  AGENT. 

Section  1. — Duty  to  Compensate  Agent. 


(a)      IN    GENERAL. 

FIRST  NATIONAL  BANK  OF  CLEBURNE  v.  GRAHAM. 
Court  of  Appeals  of  Texas.     22  S.  W.  Rep.  iioi. 


White^  p.  J. — Appellant,  having  recovered  a  judgment  against 
appellees  Graham  &  Lewis,  made  affidavit  of  and  sued  out  a  writ 
of  garnishment  against  Deal.  Deal  answered  the  writ,  stating  that 
he  was  indebted  to  the  defendant  Graham,  one  of  the  firm  of  Gra- 
ham &  Lewis,  in  the  sum  of  $144.10,  but  which  indebtedness  he 
pleaded  was  exempt  from  garnishment,  because  the  same  was  an 
attorney's  fee  due  for  personal  legal  services  rendered  as  an  attor- 
ney at  law.  This  plea  was  sustained  by  the  court,  who  rendered 
judgment  discharging  the  garnishment,  and  for  costs  against  ap- 
pellant. 

By  the  twenty-eighth  section  of  the  state  constitution  (article 
16)  it  is  declared  that  "no  current  wages  for  personal  services  shall 
ever  be  subject  to  garnishment;"  and  article  218,  Rev.  St.,  provides 
that  "no  current  wages  for  personal  services  shall  be  subject  to  gar- 
nishment ;  and,  where  it  appears  upon  the  trial  that  the  garnishee 
is  indebted  to  the  defendant  for  such  current  Avages,  the  garnishee 
shall,  nevertheless,  be  discharged  as  to  such  indebtedness." 

The  question  is,  is  an  attorney's  fee  for  services  rendered  as  an 
attorney  "such  current  wages  for  personal  services"  as  comes  within 
the  constitutional  and  statutory  exemption?  "Current"  means 
"rvmning ;  now  passing  or  present  in  its  progress ;"  and  "wages" 
means  "a  compensation  given  to  a  hired  person  for  his  or  her 
services."  Webst.  Diet.  We  think  the  proper  construction  to  be 
placed  then  upon  the  term  "current  wages,"  is  that  they  are  such 
compensation  paid  for  personal  services  as  are  to  be  paid  for  peri- 
odically, or  from  time  to  time,  as  the  services  are  rendered,  or  the 
work  is  performed — progresses.  It  is  where  the  party  hired,  by 
rendering  the  service,  would  be  entitled  to  certain  periodical  pay- 

526 


nn<  I  orr, 


aptions  in  n 

V.  Russel, 

^ad  Co.  V.  1 
well  as  the 


^■nt.      i\' 
;   fee  for 
^  case,  or  in  the 
w.n  of  any  amount 
■-rmed  "current  Wat;-. 
'  'V  the  day,  \'- 
tor  which  h 
.uno  ?     We  think  nol 
1  holding  that  the  <i; 
)shee,  to  the  defendant^,  was  exc 


•ed  for  ! 

1,  TL'  ue  [•:;'!  di    i.  •  expiration  l'.  inc 
,nd  not  in  proportinn  to  the  business 

below  erred 


the 


garnis 


T-TTVTt 


873.     Supreme  Court  c 


Depue,  J. — ^ITpnf)  the  "f?i'~<  = 
rjse,  the 
cr  compt. 

t,  the  cause  was  tried  by 
ading"  of  the  court  w--- 
cause  presents  the 


of 


lor. 


Section  1. — Duty 


?.URNE  V.  GRAHAM. 
\y.  Rep.  iioi. 


he 


ever  be  sub 
that  "no  curreii; 
nishment ;.  anr^, 
is  indebted  ; 
:-h:u]    never  I' 

I'uestior 
>_  >  "such  c 
the    c  Histitution. 
"riinniiiG;' ;  now 
c,      i-.-    ■'?(   romr 


compensation  .paid  i 
odically,  or  from  tin.^  . 
ivork  is  performed — ^pr^ 


recovered  a  judgement  against 

it  of  and  sued  out  a  writ 

ered  tlie  writ,  stating  that 

:■>.,  one  of  the  finii  of  Gra- 

■'■  \\hich  indebtedness  he 

use  the  same  was  an 

rendered  as  an  attor- 

.   court,  who  rendered 

4iruent»  ajid  fOr  costs  against  ap- 

'.istitution    (articlf' 

)nal  services  shal! 

■lev.  St.,  provides 

vibject  to  gar- 

■'le  garnishee 

garnishee 

:  ce  for  s'  ndered  as  an 

'•■■•^'  --•  comes  within 

rent"    mean=; 

and  "wages' 

^    for   his   or  her 

■j.r  construction  to  bf 

iS  that  they  are  such. 

-  are  to  be  paid  for  peri 

vi'  es  are  rendered,  or  the 

c   the  party  hired,  b;- 

"^";in  i>eriodical  pay- 


DUTY    TO    COMPENSATE    AGENT.  527 

ments.  It  is  a  service  rendered  for  which  the  compensation  is  meas- 
ured by  the  time  of  its  continuance,  (Jenks  v.  Dyer,  102  Mass. 
235;  Somers  v.  KeHhcr,  115  Mass.  165)  ;  such  compensation  as  in 
fact  is  paid  for  services  where  rendered  by  the  hour,  day,  week, 
month,  or  year.  In  the  use  of  the  word  "current"  as  prefixed  to 
"wages,"  our  constitutional  and  statutory  provisions  differ  from 
such  exemptions  in  most  of  the  states.  See  Freem.  Ex'ns,  §  234 ; 
McLellan  v.  Young-,  54  Ga.  399;  Flood  v.  Randall,  72  Me.  489; 
Allen  v.  Russel,  78  Ky.  105  ;  Railroad  Co.  v.  Barron,  83  111.  365 ; 
Railroad  Co.  v.  Falkner,  49  Ala.  115.  Signification  must  be  given 
it,  as  well  as  the  word  "wages."  In  fact  it  limits,  restricts,  and 
qualifies  the  character  of  the  wages  for  personal  services,  which 
it  is  the  spirit  and  intent  and  policy  of  the  law  to  exempt  from 
garnishment.  No  wages  not  "current"  are  so  exempt.  Can  an 
attorney's  fee  for  legal  services  rendered  or  to  be  rendered  in  a 
single  case,  or  in  the  transaction  of  a  single  matter,  or  in  the  trans- 
action of  any  amount  of  legal  business,  in  any  manner  be  correctly 
termed  "current  wages,"  where  he  has  not  been  hired  for  his  serv- 
ices by  the  day,  week,  or  month,  to  be  paid  at  the  expiration  of  the 
time  for  which  he  was  hired,  and  not  in  proportion  to  the  business 
done  ?  We  think  not.  Our  conclusion  is  that  the  court  below  erred 
in  holding  that  the  attorney's  fee  due  from  appellee  Deal,  the  gar- 
nishee, to  the  defendants,  was  exempt  from  garnishment.^    *    *    *2 


HINDS  V.  HENRY. 
1873.     Supreme  Court  of  New  Jersey.     36  N.  J.  L.  328. 

Depue,  J. — Upon  the  facts  set  out  in  the  foregoing  statement  of 
the  case,  the  plaintiff  brought  his  action  against  the  defendant  to 
recover  compensation  for  his  services  in  negotiating  the  sale.  At  the 
circuit,  the  cause  was  tried  by  the  court — a  jury  being  waived — and 
the  finding  of  the  court  was  in  favor  of  the  defendant.  The  rule  to 
show  cause  presents  the  question  of  the  propriety  of  this  finding, 
under  the  testimony  produced  before  the  court. 

The  declaration  contains  the  common  counts  for  work  and  labor, 

^  A  portion  of  the  opinion  dealing  with  the  sufficiency  of  the  affidavit  for 
garnishment  is  omitted. 

"  See  Heard  v.  Crum,  73  Miss.  157. 

In  Hamberger  v.  Marcus,  157  Pa.  St.  133,  the  exemption  statute  read  as 
follows :  "The  wages  of  any  laborer  or  the  salary  of  any  person  in  public  or 
private  employment  shall  not  be  liable  to  attachment  in  the  hands  of  the 
employer.''  The  court  decided  that  a  broker's  commissions  were  not  exempt 
from  attachment  under  this  statute. 


528  DUTIES    OF.  PRINCIPAL   TO   AGENT. 

and  services  performed,  and  also  a  special  count  on  the  obligation 
of  March  29,  1867. 

The  plaintiff  is  not  entitled  to  recover  under  the  common  counts. 
To  entitle  a  broker  to  commissions  for  his  services  in  negotiating  a 
sale,  the  services  must  be  rendered  under  an  employment  and  re- 
tainer by  his  principal.  Services  rendered  as  a  mere  volunteer, 
without  any  employment,  express  or  implied,  will  give  no  title  to 
commissions.  Edwards  on  Factors  and  Brokers  1/^4.;  Cook  v. 
Welch,  9  Allen  350.  If  the  employment  be  by  special  agreement, 
the  rights  and  liabilities  of  the  parties  will  be  determined  by  the 
terms  of  the  agreement  exclusively.  Russell  on  Factors  155 ;  Bower 
V.  Jones,  8  Bing.  65;  Warde  v.  Stuart,  i  C.  B.  (N.  S.)  88;  Jacobs 
V.  Kolfif,  2  Hilton  133. 

The  employment  of  the  plaintiff  to  negotiate  a  sale  was  by  the 
first  agreement  between  the  parties,  which  was  made  on  the  6th 
of  December,  1866.  In  express  terms,  the  power  to  sell  was  limited 
to  the  15th  of  January,  1867.  The  subsequent  extension  enlarged 
the  time  until  the  15th  of  March.  On  this  latter  day,  the  authority 
of  the  plaintiff  and  his  employment  terminated  by  the  limitation  in 
the  agreement  of  the  parties.  The  contract  for  the  sale  was  made 
with  Laubach  and  Reigel,  on  the  28th  of  March.  The  case  does  not 
disclose  any  agreement,  express  or  implied,  between  the  parties,  for 
continuing  the  plaintiff's  agency  after  the  former  agreement  had  ex- 
pired. Consequently,  the  authority  of  the  plaintiff  was  at  an  end 
when  the  contract  with  the  purchasers  was  made.  For  services  (if 
any)  which  the  plaintiff  had  rendered  toward  the  contract  of  sale, 
whilst  the  original  employment  subsisted,  he  could  not  have  recov- 
ered for  the  reason  that,  under  the  agreement  then  in  force,  a  sale 
on  a  day  not  later  than  the  15th  of  March,  was  a  condition  precedent 
to  the  obligation  of  that  agreement.  After  the  lapse  of  that  time, 
the  employment  of  the  plaintiff  ceased,  and  thereafter  he  acted  as  a 
volunteer,  with  no  power  to  represent  the  defendant,  or  to  conclude 
a  contract  in  his  name,  except  such  as  was  derived  from  the  subse- 
quent ratification  of  his  acts  by  the  defendant.  The  plaintiff  testi- 
fies that  the  contract  for  sale  was  executed  by  himself,  as  the  agent 
of  the  defendant,  and  by  Laubach  and  Reigel,  in  duplicate,  on  the 
day  it  bears  date,  and  that  he  delivered  one  copy  to  the  de- 
fendant on  the  next  day,  when  the  obligation  sued  on  was  executed 
and  given  to  him.  The  acceptance  by  the  defendant  of  the  contract 
to  sell,  made  in  his  name  by  the  plaintifif,  as  his  agent,  and  the  re- 
citals in  the  obligation  were  an  adoption  of  the  contract,  which  made 
it  binding  on  the  defendant,  as  between  him  and  the  purchasers,  but 
did  not  operate  to  confer  upon  the  plaintiff  any  right  other  than  such 
as  is  expressed  in  the  obligation  that  was  then  executed.  The 
parties  in  that  instrument  put  in  writing  the  understanding  and 
agreement  as  between  themselves.  If  any  other  engagements  had 
previously  existed,  they  were  merged  in  this  agreement.    It  is  mani- 


^1v  of  r 


The  sj)'.;'  lal  count  ; 

nnfl'" idence  ii> 

i<;  t'  ;:rht  of  tl 

a  purcb 
which  tl. 
;   is  produce' 
■iisation  by  ?• 
;i- ;\       eut  which  the 
'  ^     iJ.  (N.  S.)  .'"''- 
ing'.  22  How 
II  Barb.  14,^ 
and  is  liable 
11  to  the  pa 
er  was   emi 
•  -S.    Thus,  in  London,  b  ;e,  a  sh; 

tiating  the  hiring- of  vess;...  .  ..   ,   ...   ..  .  .  ..    >.ommiss:-  i. 

bartering  is  completed,  and  cannot  recover  compensation  un  . 
rharter  party  is  signed,  •'         ''       .'    the  negotiation  was  reu.- 
1  fruitless  by  the  fault  of  Read  v.  Rann,  10  B.  & 

vS ;  Broad  v.  Thomas.  7  I-  . .  Inan,  4  C.  (&  P.  289. 

':e  broker  may  also,  by  si  .  vith  h-'^  prfnciprJ.  «^.o 

act  as  to  make  his  conr 

'■  bis  efforts  cannot  con  ,. 

rincipal,    A  contract  r  is  bin 

n  be  maintained  unt'  .1.-^ 

Bing.  237 ;  Alder  v. 
.  B.  583  ;  Tomlis  v.    '■ ' 
lb.  2S7.   In  Bull  V.  r 
^ale  of  a  reversionar 
on  the  sum  obtainf^^d 
'•roceeds  paid  ir 
'  ^v  an  application.. 
value  of  an  anmi ; 
■  before  the 
In  Alder  v 


't  conveyance  u 


'    ioes  perloriiied,  aiid 
h  29,  1867. 

ine  plaintiff  is  not  en 
To  entitle  a  broker  to  c^ 
sale,  the  services  must  ■ 
t   'ocr  by  his  p---- -  -  ^ 

v  'iliout  any  en; 
commissions,     i 
Welch,  9  Allen 
the  rights  and  i 
terms  of  ihe  ,^!'t 
V.  Jonc' 
V.  Kolli 

The  « 
fir?; 


bligatior. 

nmon  count.^ 

negotiating  : 

inent  and  re- 

Mil   a:>  .1   mere  volunteer 

died,  will  give  no  title  ti 

and   Brokers    14  i ;    Cook   v 

ent  be  bv  special  agreement 

niined  by  thv 

i  155;  Bowe' 

N.  S.)  88;  Jacob^ 

>  negotiate  a  sale  was  by  the 

which  was  made  on  the  6tli 

the  power  to  sell  was  limited 


cxc 


a  con  Li 
quent  r;. 
fies  that  thf 
of  the  defe' 
dav    it   bear 


delive 


as  is  expressed  in 

parties   ■"   '•'''♦:   ''""'■ 

agreenv 

r-reviousiy  cxiSvCctj  uic) 


limitation  in 
le  was  made 
case  does  not 
■I.,  ')"i%\cc:ii  liie  parties,  for 
:ormer  aj>-reement  had  ex- 
'aintiff  was  at  an  en 
ide.  "  For  services  (1 
!  the  contract  of  sale, 
ould  not  have  recoA^ 
'  then  in  force,  a  sale 
'  'condition  preceden*^ 
ipse  of  that  time 
liter  he  acted  as 
o)t,  or  to  concind 
■I  from  the  ;■  ' 
he  plaintiff  • 
himself,  as  the  ageic 
iv.  tluplicate,  on  th 
copy  to   the   de 
"  was  execute 
'-  the  contrac 
i ,  and  the  re 
.,  which  mad 
la  and  the  purchasers,  bu 
arn  right  other  than  sue 
then  executed.     Th 
e  understanding  an 
-iier  engagements  ha 
"^t  is  mam 


DUTY    TO    COMPENSATE    AGENT.  529 

fest  that,  independently  of  the  obhgation  of  March  29,  1867,  the 
plaintiff  can  have  no  right  of  action  against  the  defendant,  under 
either  the  common  counts,  or  any  other  form  of  pleading. 

The  special  count  is  founded  on  this  obligation.  Can  the  plaintiff 
under  the  evidence  in  the  cause  recover  upon  it?  The  general  rule 
is  that  the  right  of  the  broker  to  commissions  is  complete,  when  he 
has  procured  a  purchaser  able  and  willing  to  conclude  a  bargain  on 
the  terms  on  which  the  broker  was  authorized  to  sell.  When  such  a 
purchaser  is  produced,  the  principal  cannot  defeat  the  agent's  right 
to  compensation  by  a  refusal,  without  sufficient  reason  to  fulfill  the 
agreement  which  the  agent  had  power  to  make.  Prickett  v.  Badger, 
I  C.  B.  (N.  S.)  296;  Lockwood  v.  Levick,  8  id.  603;  Kock  v.  Em- 
merling,  22  How.  69 ;  Cook  v.  Fiske,  12  Gray  491  ;  Glent worth  v. 
Luther,  21  Barb.  145.  This  rule  rests  upon  the  general  usage  of  the 
business,  and  is  liable  to  be  modified  or  superseded  by  a  special  usage 
in  relation  to  the  particular  transaction,  in  connection  with  which 
the  broker  was  employed,  or  by  special  agreement  between  the 
parties.  Thus,  in  London,  by  the  established  usage,  a  ship  broker 
negotiating  the  hiring  of  vessels,  is  not  entitled  to  commissions  until 
the  chartering  is  completed,  and  cannot  recover  compensation  unless 
the  charter  party  is  signed,  even  though  the  negotiation  was  ren- 
dered fruitless  by  the  fault  of  the  employer.  Read  v.  Rann,  10  B.  & 
C.  438 ;  Broad  v.  Thomas,  7  Bing.  99 ;  Dalton  v.  Irvin,  4  C.  |&  P.  289. 

The  broker  may  also,  by  special  agreement  with  his  principal,  so 
contract  as  to  make  his  compensation  dependent  on  a  contingency 
which  his  efforts  cannot  control,  even  though  it  relate  to  the  acts 
of  his  principal.  A  contract  of  that  character  is  binding,  and  no 
action  can  be  maintained  until  the  contingency  has  arisen.  Bull  v. 
Price,  7  Bing.  237 ;  Alder  v.  Boyle,  4  C.  B.  635  ;  Moffat  v.  Laurie, 
15  C.  B.  583;  Tombs  v.  Alexander,  loi  Mass.  255;  Walker  v.  Tir- 
rell,  ib.  257.  In  Bull  v.  Price  the  retainer  was  for  the  negotiation  of 
the  sale  of  a  reversionary  interest  for  a  compensation  of  two  per 
cent,  on  the  sum  obtained.  The  property  was  sold  by  the  broker,  and 
the  proceeds  paid  into  court,  from  which  they  could  only  be  ob- 
tained by  an  application,  and  were  subject  to  a  deduction  for  costs, 
and  the  value  of  an  annuity  charged  on  the  estate.  It  was  held  that 
an  action  before  the  money  was  got  out  of  court,  was  commenced 
too  soon.  In  Alder  v.  Boyle,  upon,  a  negotiation  between  A  and  B 
for  an  exchange  of  advowsons,  the  defendant  agreed  to  pay  the 
broker  £100,  "one-third  down  and  the  remaining  two-thirds  when 
the  abstract  of  conveyance  is  drawn  out."  The  defendant  delivered 
the  abstract  of  his  title,  but  no  abstract  was  delivered  by  the  other 
party,  and  nothing  further  being  done  the  negotiation  dropped.  In 
an  action  by  the  broker  for  the  last  payment  of  two-thirds  of  his 
commissions,  it  was  decided  that  the  action  could  not  be  maintained 

34 — Reinhard  Cases. 


530  DUTIES    OF    PRINCIPAL   TO    AGENT. 

— the  event,  on  the  happening-  of  which  the  plaintifif's  right  to  that 
portion  of  the  compensation  agreed  on,  not  having  occurred. 

By  the  contract  in  this  case,  the  defendant  obligated  himself  to 
pay  the  commissions  agreed  on — one-half  at  the  time  the  purchasers 
of  the  property  should  pay  the  first  half  of  the  purchase  money,  and 
the  balance  at  the  expiration  of  one  year  from  the  date  of  the  deed, 
without  interest.  In  an  action  on  an  obligation  of  this  kind,  the 
pleader  must  aver,  and  it  must  be  proved  at  the  trial,  that  the  con- 
tingency on  which  the  debt  is  payable  has  happened,  or  that  it  was 
defeated  through  some  fault  of  the  obligor.  Holdipp  v.  Otway,  2 
Saunders  106;  Walker  v.  Tirell,  loi  iMass.  257;  Moffatt  v.  Laurie, 
15  C.  B.  583.  The  contingency  on  which  the  plaintiff's  compensa- 
tion was  dependent  has  never  arisen.  To  excuse  the  absence  of 
proof  on  this  subject,  the  plaintiff  relies  on  a  class  of  cases  which 
hold  that  the  obligee  is  relieved  from  the  necessity  of  proving  per- 
formance of  the  condition,  where  performance  has  been  prevented 
by  the  act  of  the  obligor.  The  cases  on  this  subject  are  quite  numer- 
pus.  Malins  v.  Freeman,  4  Bing.  (N.  S.)  395  ;  Doe  v.  Bancks,  4  B. 
&  Aid.  401 ;  Blanche  v.  Colburn,  8  Bing.  14 ;  Hall  v.  Conder,  2  C. 
B.  (N.  S.)  22;  Inchbald  v.  The  Western  Co.,  17  id.  733;  Horler  v. 
Carptnter,  2  id.  56;  Young  v.  Hunter,  2  Seld.  204;  Hurlstone  on 
Bonds  49.  But  they  will  be  found,  without  exception,  to  be  cases  in 
which  the  obligee  has  prevented  the  performance  of  the  condition 
by  some  wilful  or  fraudulent  act,  in  violation  of  his  own  imdertaking, 
express  or  implied. 

In  the  present  case,  the  cloud  on  the  defendant's  title,  which  ulti- 
mately broke  off  the  contract  to  sell,  was  made  known  to  the  plaintiff 
when  the  power  of  attorney  was  given.  The  time  when  the  title 
might  be  perfected  was  the  subject  of  a  letter,  written  by  the  defend- 
ant's father  to  the  plaintiff,  bearing  date  on  the  20th  of  February,  in 
which  he  says :  "I  left  for  Wilkesbarre  to  ascertain  when,  to  a  cer- 
tainty, the  title  can  be  completed,  and  I  dare  say  it  will  not  be  safe 
to  say  earlier  than  May  ist  next,  although  it  may  be  sooner."  With 
this  knowledge  of  a  condition  of  the  title  that  might  create  difficulty, 
the  plaintiff  concluded  a  contract  for  sale,  binding  the  defendant 
to  convey,  on  the  ist  of  May,  in  fee  simple,  clear  of  all  encum- 
brances. At  the  time  of  these  transactions,  it  was  expected  that  the 
suit  in  which  the  validity  of  the  tax  title  was  to  be  determined  would 
be  tried  at  the  following  April  tenn.  It  was  laid  over  at  that  term 
in  good  faith,  on  account  of  the  non-return  of  a  commission,  taken 
out  for  the  examination  of  an  important  witness  in  a  foreign  coun- 
try, and  was  not  finally  disposed  of  until  February,  1868.  When  the 
obligation  sued  on  was  signed,  the  pending  litigation  was  referred 
to.  The  plaintiff  testified  that  the  defendant  then  said,  that  if  there 
was  any  likelihood  of  his  losing  the  suit  he  would  buy  the  parties  off. 
At  the  time  fixed  for  making  the  deed,  the  defendant's  counsel  ex- 
hibited to  the  counsel  of  the  purchasers  the  proof — by  the  produc- 


vidence 

1-1-,,.     ,!.     .. 


be  disc 


<  I  was  an  actio, 
)ds  and  Stephen 

ation  w 


propel 


-ht  to  til 
<■■  ed. 

:he  con:  'limself  to 

■  .  .linn./  •"'•chasers 

V,  and 
uie  deed. 
•\>i.ho  kind,  the 

p!  .  Uiat  the  con- 

t:-  or  that  it  was 

'1  .  Otway,  2 

-  V-    T.aurie, 

■  pensa- 

■  ice  of 
P'  which 
hi  !:  {iroving-  per- 
f'  .een  prevented 
b  ij  <[uite  numer- 
:                                                                                             •,  Bancks,  4  B. 

.  Conder,  2  C. 

,..,  733  ;  Horler  v. 

204;  Hurl  stone  on 

',  to  be  cases  in 

1'  the  condition 

:akin^, 


1  the  title 

he  defend- 

vbruary,  in 

a\  vvhcn,  to  a  cer- 

h  \v?A  not  be  safe 

>er."    With 

;  difficulty, 

defendant 

ill  encuni- 

•  -d  tliat  tl:.- 

ined  vvouli.i 

that  term 

,  taken 


there 

At  t!'. 


iICU    ll 

c    ■ 

t?i 

r^  •■•■.■     f 

!-, ,. 

t' 

t' 

t  '  . 
t 

b; 

.1     ■!!     i 

vlu 

-J  5   1 

W 

'  1  ied 

at 

thr 

in 
1  )■ 

g'H-uJ 

f:- 

:a-  t:u 


DUTY   TO    COMPENSATE   AGENT.  531 

tion  of  receipts  for  the  taxes — that  the  tax  title  was  worthless ;  and 
the  clear  weight  of  the  evidence  is,  that  the  defendant  offered  to  con- 
vey, leaving  with  the  purchasers  sufficient  of  the  purchase  money 
to  indemnify  them  for  any  loss  arising  from  an  adverse  termination 
of  the  litigation,  or  to  convey  the  residue  of  the  lands,  omitting  the 
tract  which  was  in. controversy.  The  purchasers  declined  to  accept 
anything  but  an  unclouded  title,  and  the  contract  with  them  fell 
through. 

The  evidence  shows  that  defendant  made  no  fraudulent  conceal- 
ment of  the  defect  in  his  title,  and  that  the  plaintiff  acted  with  full 
knowledge  that  his  efforts  might  be  made  abortive  by  the  defend- 
ant's inability  to  convey  as  w^as  stipulated.  The  sale  fell  through, 
not  in  consequence  of  any  default  of  the  defendant,  but  was  defeated 
by  the  occurrence  of  a  contingency,  the  possibility  of  the  happening 
of  which  was  known  to  both  parties,  and  with  respect  to  which  they 
expressly  contracted. 

The  result  in  the  court  below  was  correct,  and  the  rule  to  show 
cause  should  be  discharged.^ 


JONES  V.  WOODS. 
1874.     Supreme  Court  of  Pennsylvania,     'jd  Pa.  St.  408. 

This  was  an  action  of  assumpsit,  brought  June  5,  1871,  by  Robert 
Woods  and  Stephen  Woods,  partners,  as  R,  &  S.  Woods,  against 
Nelson  Jones. 

The  declaration  was,  in  the  first  count,  for  the  "sum  of  $500,  the 
price  and  value  of  work,  viz.,  professional  services,"  etc. ;  in  the  sec- 
ond, for  $500,  money  received  by  defendant  for  plaintiffs'  use ;  in 
the  third,  for  $500,  money  paid,  etc.,  by  plaintiffs  for  defendant ;  in 
the  fourth,  for  $500,  found  to  be  due  by  defendant  to  plaintiffs  on 
an  account  stated.   The  damages  were  laid  at  $1,000. 

Robert  Woods,  one  of  the  plaintiffs,  testified  that  he  had  been  em- 
ployed, with  the  late  Judge  Hepburn,  by  Thomas  Jones.  Nelson  Jones 
and  Pressley  Jones,  in  relation  to  a  sale  of  their  property  to  the 
Pittsburg  &  Steubenville  Railroad  Company ;  the  company  having 
bought  their  property  for  $66,000,  made  a  payment  of  $5,000,  and 

^  "The  right  to  compensation  arises  from  the  parties  having  placed  them- 
selves in  the  relative  positions  of  employer  and  employed,  and  assumed  re- 
spectively the  obligations  and  duties  belonging  to  those  positions."  Cooley,  J., 
in  McDonald  v.  Boeing,  43  Mich.  394,  396. 

Where  the  contract  of  employment  specifies  that  in  a  certain  contingency 
no  compensation  is  to  be  paid,  a  promise  to  pay  will  not  be  implied  by  law 
if  the  contingency  happens.    Zerrahn  v.  Ditson,  117  Mass.  553. 


532  DUTIES    OF    PRINCIPAL   TO   AGENT. 

failed  to  pay  the  balance.  The  plaintiffs  obtained  a  decree  against 
the  company  for  the  money  due  on  the  original  purchase,  and  after 
much  litigation  the  money  was  obtained,  and  Nelson  Jones,  defend- 
ant, received  his  proportion  from  the  railroad  company.  The  witness 
said :  "During  all  the  time  I  was  attorney  for  those  three  parties,  I 
never  heard  a  breath  to  the  contrary  from  them  or  any  one  else."  He 
further  testified  as  to  the  amount  and  character  of  his  services  and 
their  value.  Thomas  Jones  was  the  principal  man ;  the  defendant 
would  sometimes  meet  him  and  ask  him  how  they  were  getting 
along;  the  parties,  except  Nelson  Jones,  paid  their  share  of  plaintiffs' 
fees. 

On  cross-examination  he  testified : 

"Mr  (Nelson)  Jones  spoke  to  me  occasionally  and  asked  me  how 
we  were  getting  along  with  the  suit.  Judge  Hepburn  and  I  got  up 
the  title  of  the  suit,  and  Nelson  Jones  signed  it.  The  suit  was  brought 
in  the  name  of  Thomas  Jones,  Nelson  Jones  and  Pressley  Jones ;  all 
signed  the  bill,  and  I  appeared  for  them  all.  At  different  times,  when 
one  would  die,  I  would  suggest  the  death  and  put  the  names  of  the 
heirs  upon  the  record.  Mr.  Nelson  Jones  knew  of  the  proceedings 
all  the  time,  all  the  way  through ;  and  whenever  it  was  necessary 
took  part  in  it,"  Nelson  Jones  was  at  plaintiffs'  office  several  times 
in  relation  to  the  case;  witness  entered  charges  in  his  book  against 
all  three  parties  for  professional  services  in  relation  to  this  business. 
Thomas  Jones  called  on  him  first  in  relation  to  the  case ;  he  thought 
he  saw  Nelson  Jones  at  that  time  too.  He  further  said :  "Mr.  Nelson 
Jones  certainly  was  my  client  as  much  as  any  gentleman  I  ever  ap- 
peared for,  and  the  idea  that  he  disapproved  of  that  proceeding  is 
entirely  new.  I  do  not  know  that  I  asked  him  for  the  money,  but  I 
told  him  he  ought  to  pay  me  his  share  of  those  fees.  After  he  got 
his  money  from  Stone,  the  property  sold  and  everything  straight,  I 
thought  I  ought  to  have  some  fees  from  him,  although  I  did  not  get 
any.  I  dropped  his  name  out  of  that  proceeding,  although  it  enured 
to  his  benefit.  I  knew  that  he  and  his  brother  sometimes  were  not 
on  very  good  terms,  but  Thomas  attended  to  his  own  business  and 
Nelson's  too.    Thomas  managed  the  affairs  of  the  whole  estate." 

There  were  other  witnesses,  who  testified  to  the  performance  of 
the  professional  services  by  the  plaintiffs,  and  as  to  their  value. 

Nelson  Jones,  the  defendant,  testified  that  he  had  never  employed 
the  plaintiffs  in  the  business  for  the  services  for  which  this  suit  was 
brought ;  he  never  talked  with  them  about  it,  except  to  ask  how  they 
were  getting  along;  nor  authorized  them  to  institute  proceedings  in 
his  name ;  he  had  other  counsel ;  never  talked  to  plaintiffs  about  his 
business,  or  authorized  his  brother  Thomas  to  commence  these  pro- 
ceedings or  employ  counsel. 

The  defendant's  second  point  with  its  answer  was : 

2.  If  the  jury  believe  that  Thomas  Jones  employed  the  plaintiffs 
to  conduct  the  case  and  attend  to  the  business,  as  testified  to  by  de- 


533 
fendant,  t'>-'  -'or  pay- 


" Affirmed.  .. 
it  alone  of  TJioi; 
services 

:  the  ad',  • 

the  fact,  the 
■  r  the  =;er^'5( 

.  v    I  a  i  V  ,    ;  ip  1 .  i    -I  ' 

ii  the '27th  of  Aj 
;ded  their  d.    ' 
>o  and  the  d;. 
e  defendan!. 
. rror  the  an> 
ud  his  declarati'o 
lARSWOOD,  J, — v.  V  ....  -.    the  opinion  that  the  learn.     ...... 

erred  in  the  answer  to  the  defendant's  second  point;  not  t::ai 

lefendant  was  entitled  to  an  absolute  and  unqualified  affirmance 

for  upon  the  testimony  of  the  Dlaintiff.  the  jurv  might  have 

!  in  findinjo;  that  "  nd  rati- 

'.oyment  o^  th-  ?  and  hi? 

hers.   One  of  the  that  the  defend.' 

lim  occasionally;    .  .  rought   in   the    ;. 

aias  Jones,  Nelson  J(  [ones;  all  sigfned  the  bill 

he  appeared  for  t^  ■  '    ' 

ings  all  the  tim<, 

-sary  took  part  in  it. 

he  had  authorized  ''- 

,  however,  the  pi 

ourt  proceeded  t : 

dated  to  mislead  the 

'•ne  question  in  th( 

id  find  that  t)ie 

ut  of  all  the  heir:.  ., 

defend? It  itT^l'vi *;'•:; 


itary  service  reni 
r.:^nnest,  or  sub.^^  ,..v...   ,.... 
■:  that  s.uch  precedent  re 


'>  AGENT, 


-«  pay  the  balar.t 
•  1;  V  for  the  mi 

rir;  ,  icion  the  mor 

ant,  received  his  propon 
sMid:   "During-  all  tb-^  • 
never  heard  a  hreatl 
further  testified  as  t 
their  value.    Tlirvrn 
would  soil" 
along ;  the 
fees. 

On    . 


th 

in 


P' 

eni:,i.._.   ... 
told  him  ]•' 
his  money 
thought  I  r 
any.   T 
to  his 

on  very  good 
Nelson's  too. 
There  were 


,r.<L  ;.',.-.]nuns  in  ir. 
brought :  he  never  1 
were  getting  a' 
his  name ;  he  i ;,. 
business,  or  author) 
ceedings  or  employ 
The  defendant's 
2.    If  the  jury  L' 
to  conduct  the  case 


^Mairt'^'i  ?.  derree  against 

and  after 

>,  defend- 

'lad  con  he  witness 

'  ^•■•■-  •'  parties,  I 

else."  He 

services  and 

,  the  defendant 

;   laui   hiivv   liiey   were  getting 

s.  paid  their  share  of  plaintiffs' 


me  occasionally  and  asked  me  hc>  a 
[•'•^.   Judge  Hepburn  and  I  got  u{) 
signed  it.  The  suit  Avas  brought 
.^«ley  Jones;  all 
U  times,  when 
:  aiid  put  tlie  names  of  the 
loiew  of  the  proceedings 
levcr  it  was  necessary 
fFs'  office  several  times 
res  in  his  book  again  > 
lation  to  this  business. 
•>  the  case;  he  thought 
too.   lie  -irthersaid;  "Mr.  Nelson 
mncli  ->.     ^'v  gentleman  I  ever  ap- 
of  that  proceeding  is 
'it  the  money,  but  T 
fees.    After  he  t: 
:  r.   ^-n  r)' thing  straight 

IS  from  'Ugh  I  did  not  j^ 

■    >ugh  it  enured 
unes  were  not 
•  business  and 
■  i  ole  estate." 

'  e  performance 
^  tlieir  value, 
ever  employed 
1  this  suit  was 
qsk  bow  thev 
'  acui  to  in.stiuitt 
er  talked  to  plaii 
homas  to  commence  these  pr^ 


'ic:>   !:ii|Ji' o,  <j(i   I  lie  pi 

iness.  as  testified  to 


DUTY    TO    COMPENSATE   AGENT.  533 

fendant,  then  the  plaintiffs  should  look  to  Thomas  Jones  for  pay- 
ment, and  if  there  is  any  liability  on  the  part  of  the  defendant  in  this 
case,  it  is  to  Thomas  Jones,  for  contribution  or  otherwise,  and  not  to 
the  plaintiffs. 

Answer:  "Affirmed,  if  the  jury  believe  that  the  services  were  for 
the  benefit  alone  of  Thomas  Jones.  But  if  they  find  that  the  reten- 
tion and  services  of  counsel  were  for  the  benefit  of  all  the  heirs,  and 
enured  to  the  advantage  of  all,  and  all,  the  defendant  included,  were 
aware  of  the  fact,  then  all  of  them  are  liable,  and  all  should  be  made 
to  pay  for  the  services  so  resulting  to  their  general  benefit  and  ad- 
vantage." 

The  jury,  April  19,  1872,  found  for  the  plaintiff  $1,500. 

On  the  27th  of  April,  1872,  by  leave  of  the  court,  the  plaintiff 
amended  their  declaration  l3y  making  the  amount  in  each  court 
$2,000  and  the  damages  $4,000. 

The  defendant  took  a  writ  of  error  and  amongst  others,  assigned 
for  error  the  answer  to  his  second  point,  and  allowing  plaintiff  to 
amend  his  declaration. 

Sharswood,  J. — We  are  of  the  opinion  that  the  learned  court  be- 
low erred  in  the  answer  to  the  defendant's  second  point;  not  that 
the  defendant  was  entitled  to  an  absolute  and  unqualified  affirmance 
of  it,  for  upon  the  testimony  of  the  plaintiff,  the  jury  might  have 
been  justified  in  finding  that  Nelson  Jones  had  recognized  and  rati- 
fied the  employment  of  the  plaintiff  as  counsel  for  himself  and  his 
brothers.  One  of  the  plaintiffs  had  testified  that  the  defendant  spoke 
to  him  occasionally ;  that  the  suit  was  brought  in  the  name  of 
Thomas  Jones,  Nelson  Jones  and  Pressley  Jones ;  all  signed  the  bill 
and  he  appeared  for  them  all.  Mr.  Nelson  Jones  knew  of  the  pro- 
ceedings all  the  time,  all  the  way  through,  and  whenever  it  was 
necessary  took  part  in  it.  Mr.  Nelson  Jones,  on  the  contrary,  denied 
that  he  had  authorized  or  ratified  the  employment.  Of  the  affirm- 
ance, however,  the  plaintiff  in  error  could  not  have  complained,  but 
the  court  proceeded  to  qualify  and  explain  it  in  a  way  that  was  well 
calculated  to  mislead  the  jury  and  turn  their  attention  aside  from 
the  true  question  in  the  cause.  In  instructing  the  jury  that  if  they 
should  find  that  the  retention  and  services  of  counsel  were  for  the 
benefit  of  all  the  heirs,  and  enured  to  the  advantage  of  all  and  all, 
the  defendant  included,  were  aware  of  the  fact,  then  all  of  them 
are  liable,  and  all  should  be  made  to  pay  for  the  services  so  resulting 
to  their  general  benefit  and  advantage,  there  was  manifest  error.  A 
voluntary  service  rendered  by  one  man  to  another,  without  any  prece- 
dent request,  or  subsequent  promise,  forms  no  ground  of  action. 
It  is  true  that  such  precedent  request  will  often  be  inferred  from 
the  work  being  done  under  the  defendant's  eye  and  for  his  benefit. 
But  that  is  necessarily  an  inference  of  fact  to  be  made  by  the  jury 
from  all  the  evidence.  There  were  circumstances  in  the  case  which 
tended  to  show  that  after  the  sheriff's  sale  and  the  end  of  the  equity 


534  DUTIES   OF    PRINCIPAL   TO   AGENT. 

case,  the  plaintiJff  dropped  the  name  of  Nelson  Jones  from  the  pro- 
ceeding's and  no  longer  considered  himself  as  his  counsel.  Yet  the 
learned  judge  left  it  to  the  jury,  if  they  found  that  the  plaintiff's 
services  resulted  in  benefit  to  the  defendant,  that  he  was  liable  to  pay 
without  either  precedent  request  expressed  or  implied,  or  subse- 
quent promise. 

It  is  unnecessary  to  consider  the  remaining  assignment  of  error 
that  the  court  erred  in  allowing  the  damages  in  the  declaration  to 
be  increased  after  verdict. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded.^ 


VINTON  V.  BALDWIN. 
1882.     Supreme  Court  of  Indiana.     88  Ind.  104. 

Elliott,  J. — On  the  5th  day  of  June,  1879,  the  appellee  executed 
a  written  agreement  appointing  appellant  his  agent  to  procure  a 
loan,  and  promising  to  pay  him  "for  his  services  five  per  cent,  com- 
mission on  the  amount  of  the  loan  obtained."  Formal  application 
was  made  for  a  loan ;  the  parties  to  whom  it  was  made  agreed  to 
lend  the  money  applied  for ;  the  appellant  notified  appellee  that  his 
proposition  for  a  loan  had  been  accepted,  and  gave  him  a  form  of 
mortgage  to  execute;  the  paper  was  taken  by  the  appellee,  who 
promised  to  cause  it  to  be  duly  signed  and  acknowledged ;  the  day 
following  the  appellant  notified  the  appellee  that  he  had  the  money 
ready  for  him,  but  the  latter  refused  to  accept  it,  and  declined  to 
take  the  loan.  The  facts  are  not  in  dispute,  and  the  only  question 
is  whether  the  court  correctly  applied  the  law  to  them.  We  are 
clear  that  the  court  erred. 

A  broker  who  is  employed  to  procure  a  loan  is  entitled  to  his  com- 
mission when  he  procures  a  lender  ready,  willing  and  able  to  lend 
the  money  upon  the  terms  proposed.  His  right  to  commission  does 
not  depend  upon  the  contingency  of  the  applicant's  acceptance  of 
the  loan,  but  upon  his  performance  of  his  part  of  the  contract.  The 
principal  cannot  deprive  the  broker  of  his  commission  by  refusing 
to  accept  the  loan  which  the  negotiations  of  the  latter  have  resulted 
in  securing.  In  Green  v.  Lucas,  33  L.  T.  (N.  S.)  584,  Lord  Cairns 
said,  in  a  case  very  similar  to  the  present:  *Tt  appears  to  me  that 
the  plaintiff  had  done  everything  which  agents  in  this  kind  of  work 
were  bound  to  do,  and  it  would  be  forcing  their  liability  if  they  were 

^  The  agent's  right  to  compensation  may  arise  from  an  implied  contract.  See 
Garrey  v.  Stadler,  67  Wis.  512. 

Regarding  the  right  of  one  member  of  a  family  to  recover  from  another 
for  services,  see  Hill  v.  Hill,  121  Ind.  255. 


:.oi 


it"acts 

rn 

■;i. 


in  p! 
that  . 


the  broker  s 
....nished  a  pur  " 
nimation  of  the 
r.  53  Ind.  294  (2: 

s  V.  Bierling.  ^t  v. 

,  56  N.  Y.  2; ' 
Iger,  I  C.  B. 
eal  estate  or 

s  for  both  pax ,  .,_.,,,,.  .,    .   ,. .     , 

,  and  that  all  the  facts  were  known  to  both  princip: 

-Kcr  is  regarded  as  a  middleman,  and  not  as  an  agent  in  vvu'.in 

culiar  trust  and   confidence   are  placed.     Alexander   v.    North- 

Ic.,  University,  57  Ind.  4'  '     "     ,e  v.  Stevens,  53  N.  Y. 

■.}  V.  Sampson,  16  Gray  3  -ield  v.  Tegg,  38  N.  Y. 

)■  V.  Schmidt.  2/  Alb.  L. 

e  had  no  brief  from  the  and  our  unj.i<.'''.'id  elTorts 

ive  not  furnished  us  with  any  re; 
'^  VI  stained. 

aTiient  reversed.^ 


ics57.     i-iiuii  LOL'ii'i 


T  the  breach  of  a  o 
:he  plaintiffs  in  er-  r 


534 


DUTIES  OF    PRINCIPAL  K 


case,  the  plaintiff  dropped  llie  name  of  K 
'■•'  :■-"■.  and  no  Ion?"""  ■     >  ■^''-'       >;,,-... 

judge  left  i; 

resulted  in  1- 

either  pre^. 
ijueiiL  promise. 

It  is  unneces^- 

that  the  court  <. 

be  increased  aft; 

Judgment  re\  ■ 


from  the  pro- 

Msel.    Yet  the 

I  he  plaintiff's 

■'  Me  to  pa} 

r  subse- 

ignment  of  error 
■he  declaration  ti> 

awarded.^ 


.     88  Ind.  104. 

S79,  the  appellee  executed 
1.  his  agent  to  procure  ;i 
■  rv'ices  fiv  '^er  cent;  com- 


rfc:ad_y   I. 
take  th- 
is whether 
clear  tliat  th.  . . 
A  broker  whc 
mission  when  b 
the  money  upon 
not  depend  up(  ^ 
the  loan,  but  tip' 
principal  c  : 
to  accept  thv 
in  securing.    In  Grt 
sal'      •  '•  ''^.se  very 
th.  had  doi: 

wer-  L.'  'iiPG  to  do,  an 


rhe  app'  itied  appellee  that  hi: 

•••"'"'  -"^r-  gave  him  a  form  of 

■•.y  the  appellee,  whc 

^  '    -  ';.the  day 

■e  money 
.,  and  declined  tr 
the  only  question 
-  them.     We  ar- 

.ocure  a  loan  is  entitled  to  his  con: 

':.;r  read}  -"d  able  to  lenu 

'd.    Hi  imission  doe:^ 

■'  ptance  of 

act.    The 

:  by  refusing 

'    iiave  resulted 

.  T.  (N.  ^.)  584,  Lord  Cairns 

^^'='nt:    "It  appears  to  me  that 

gents  in  this  kind  of  work 

their  liability  if  they   ■    ■ 


an  implied  contra- 


es,  see  Hill  v.  Hi!i 


^.. 


TERMINATION    BEFORE   TERM.  535 

to  be  held  answerable  for  what  happened  after.  If  the  contracts 
afterwards  were  to  go  off  from  the  caprice  of  the  lender,  or  from 
the  infirmity  in  the  title,  it  would  be  immaterial  to  the  plaintiffs." 
Green  v.  Reed,  3  F.  &  F.  226;  Green  v.  Lucas,  31  L.  T.  (N.  S.)  731. 
In  principle  the  case  of  a  broker  negotiating  a  loan  is  the  same  as 
that  of  a  broker  negotiating  a  sale  of  property,  and  in  the  latter  case 
it  is  uniformly  held  that  the  commissions  are  earned  when  a  pur- 
chaser is  found  able  and  willing  to  buy  on  the  terms  proposed.  In 
such  cases  the  broker's  right  to  compensation  is  held  to  accrue  when 
he  has  furnished  a  purchaser,  and  does  not  depend  upon  the  ultimate 
consummation  of  the  sale.  Lane  v.  Albright,  49  Ind.  275 ;  Love  v. 
Miller,  53  Ind.  294  (21  Am.  192)  ;  Reyman  v.  Mosher,  71  Ind.  596; 
Moses  V.  Bierling,  31  N.  Y.  462;  24  Alb.  Law  J.  536;  Mooney  v. 
Elder,  56  N.  Y.  238;  Hart  v.  Hoffman,  44  How.  Pr.  168;  Prickett 
V.  Badger,  i  C.  B.  (N.  S.)  296. 

A  real  estate  or  loan  broker  may  recover  commissions,  although 
he  acts  for  both  parties ;  but  it  must  appear  that  he  acted  openly  and 
fairly,  and  that  all  the  facts  were  known  to  both  principals.  A 
broker  is  regarded  as  a  middleman,  and  not  as  an  agent  in  whom 
peculiar  trust  and  confidence  are  placed.  Alexander  v.  North- 
western, etc..  University,  57  Ind.  466;  Rowe  v.  Stevens,  53  N.  Y. 
621;  Rupp  V.  Sampson,  16  Gray  398;  Redfield  v.  Tegg,  38  N.  Y. 
212 ;  Barry  v.  Schmidt,  27  Alb.  L.  J.  297. 

We  have  had  no  brief  from  the  appellee,  and  our  unaided  efforts 
have  not  furnished  us  with  any  reason  upon  which  the  finding  can 
be  sustained. 

Judgment  reversed.^ 


(b)     WHEN  AGENCY  IS  TERMINATED  BEFORE  EXPIRATION  OF  SPECIFIED 

TERM. 

HUNT,  ADMR.,  et  al.  v.  CRANE. 

1857.     High  Court  of  Errors  and  Appeals  of  Mississippi. 
33  Miss.  669. 

Handy,  J. — This  action  was  brought  by  the  defendant  in  error  to 
recover  for  the  breach  of  a  contract  for  work  and  labor,  made  by 
him  with  the  plaintiffs  in  error  for  a  specified  term,  the  performance 

^  ""It  is  well  settled,  that  a  factor  may  retain  the  goods  or  the  proceeds  of 
them,  not  only  for  the  charges  incident  to  that  particular  cargo,  but  for  the  bal- 
ance of  his  general  account;  and  this  allowance  is  made  not  only  while  the 
goods  remain  in  specie,  but  after  they  are  converted  into  money."  Kent,  Ch., 
in  Bradford  v.  Kimberly,  3  Johns.  Ch.  (N.  Y.)  431,  434. 


536  DUTIES    OF    PRINCIPAL   TO   AGENT. 

of  which  he  entered  upon  but  was  prevented,  by  the  conduct  of  the 
plaintiffs  in  error,  from  completing.  The  declaration  alleges  that 
after  he  had  undertaken  the  work,  and  was  willing  to  complete  his 
term  according  to  the  contract,  he  was  told  by  the  plaintiffs  in  error 
that  if  he  continued  in  their  service  it  must  be  at  wages  greatly  be- 
low the  price  stipulated  in  their  contract ;  and  in  consequence  of  that 
refusal  by  them  to  comply  with  the  terms  of  the  contract,  he  was 
thrown  out  of  employment,  and  after  losing  considerable  time  in 
ineffectually  seeking  other  employment,  he  was  then  employed  by 
another  person  at  greatly  reduced  wages. 

A  verdict  and  judgment  was  rendered  for  the  plaintiff  below. 

The  first  ground  of  error  taken  in  behalf  of  the  plaintiffs  is  that 
the  declaration  is  not  sufficient  to  support  the  verdict.  The  objec- 
tion is,  that  the  declaration  merely  alleges  that  the  defendant  in 
error  was  "willing  to  work  in  accordance  with  his  agreement,"  etc., 
and  does  not  allege  that  he  offered  to  do  so.  But  it  is  averred  that 
in  consequence  of  the  refusal  of  the  plaintiffs  in  error  to  comply 
with  the  agreement,  he  was  thrown  out  of  employment.  This  re- 
fusal consisted  in  the  notice  given  to  him  that  if  he  remained  longer 
in  their  service  it  must  be  at  greatly  reduced  wages ;  and  it  cannot 
be  understood  otherwise  than  as  a  notice  that  his  engagement  at  the 
price  agreed  upon  was  discontinued,  and  that  he  was  thrown  out  of 
employment.    This  is  sufficient,  especially  after  verdict. 

Again,  it  is  objected  that  the  court  erred  in  refusing  the  instruc- 
tion asked  in  behalf  of  the  plaintiffs  in  error,  "that  the  jury  could 
only  find  for  the  plaintiff  such  damages  as  he  actually  sustained." 

As  an  abstract  proposition,  this  instruction  was  unobjectionable. 
But  it  did  not  fully  state  the  rule  by  which  the  jury  were  to  be  gov- 
erned in  assessing  damages,  with  reference  to  the  facts  of  the  case 
before  them.  This  was  already  stated  to  them  in  a  clear  and  prac- 
tical manner  by  the  instruction  granted  at  the  instance  of  the  plain- 
tiff, that  the  measure  of  damages  was  the  injury  that  the  plaintiff 
had  sustained,  and  that  in  estimating  the  damages  they  should  find 
the  sum  stated  in  the  contract,  less  the  value  of  the  plaintiff's  serv- 
ices during  the  residue  of  the  year,  as  proved,  provided  those  wages 
were  all  or  the  best  he  could  obtain.  The  rule  here  declared  was 
plain  and  explicit,  and  readily  enabled  the  jury  to  ascertain  the 
amount  of  injury  sustained;  whereas  that  asked  by  the  plaintiffs  in 
error  was  uncertain,  and  susceptible  of  misapplication.  It  was  un- 
necessary, and  was  therefore  properly  refused. 

Another  objection  is  taken  to  the  instruction  that  the  burden  of 
proof  was  on  the  defendants  to  show  that  the  plaintiff  could  have 
obtained  higher  wages  than  he  did  obtain,  and  that  it  was  sufficient 
for  the  plaintiff  to  show,  or  that  it  appeared  in  evidence,  that  he  went 
to  work  after  his  discharge.  We  think  that  this  rule  was  properly 
stated,  under  the  circumstances  of  this  case. 

The  principle  applicable  to  such  cases  is,  that  the  employer  is  lia- 


I  lie  should  s'. 
1  order  to  be  cnr 
.  iCnt.     This  was 
But  where  he 
the  best  wages 
rest  would  impel  ' 
■he  did  not  act  r- 
unless  it  be  sh<  > 
-ictL  he  accepted  1  ' 
Judgment  revt 


i860.     Supreme  Court  of  New  York.    31  Barb,  381. 

XTION  brought  to  recover  wages,  under  a  contract  to  work  for 

the  plaintiff  for  three  yt-  '         "   ist,  18;  ble  quar- 

terly, and  damages  for  a  •  tract  by  Mant.  in 

■.;  -barging  the  plamritT    V.  . 

•  .;  1857,  without  cau^c. 
in  January,  1858,  after  t^ 

an  action  in  this  court  a  ..<..  ..1 

claimed  one  quarter's  w  )r  the 

"barge  on  the  26th  of  D 

--  lit  issue  was  joined  ?^ 
ported  in  favor  of  :' 
value  of  his  lost  tiii. 
second  quarter  of  .the  cor 
commenced,  he  is  not  ev. 
this  action,"    The  pla 
""  the  trial  in  this  ca;c. 
ntiff  had  been  ready  i 
.  e  his  di? 
'-nd  thrit 


Johnson,  J, — The  oniy  qi 
fornier  action,  brougl  '  '  •  ^1 


DUTIES   OF    PRINCIPAL   TO    / 


ch  he  entered  up 

,  revente                   jonduct  of  the 

p  niuiiits  in  error.   ' ^ 

•1  -OS  that 

after  he  had  under; 

:cte  his 

term  according  to  i 

i  error 

that  if  he  continue' 

rly  be- 

low  the  price  stipui 

jntract                                  .cg  of  that 

refusal  by  tliem  f' 

'  the  ter                            .  L.jt,  he  was 

thrown  out  of 

I  after                         -:rable  time  in 

ineffectually  sec  .    ^.  ;■. 

"-rr?*v                        ■;  employ"'  ^^^' 

another  person  .a  tfiea^ 

A  verdi.- 

below. 

The  firs 

:ffs  is  that 

the  df 

'it  ihe  vci.Uv;i.     The  objec- 

tion  i- 

cges  that  The  defendant  in 

error  was  "will;  ■ 

m  accordance  with  his  agreement,"  etc 

ard  ''  ■■•     '■••^-  •  ' 

■:"•*■■'  +0  do  so.    But  it  is  averred  thai 

ir 

e  plaintiffs  in  error  to  comply 

\«-7'- 

out  of  emr' ^     This  re- 

iiisal  r 

him  that  it  '                 led  longer 

lt1  ' 

and  it  cannot 

b.- 

agement  at  the 

liiat  he  was  thrown  out  of 

;>fter  verdict. 

ri  refusing  the  instruc- 

Mi.jii>  .;:  ■:-,    -r,  "that  the  jury  could 

/images  as  he  actually  sustained.'' 

-ii^    . 

:     '                n  was  unobjectionable. 

But  it 

^'  jury  were  to  be  gov- 

erned  in  it 

e  facts  of  the  case 

before  thei 

a  clear  and  prac- 

tical  mann. . 

., ranted                   (ance  of  the  plain- 

tiff,  that  the  . 

es  was  ;                •   that  the  plaintiff 

had  sustained, 

iting  tlv                 h  they  should  find 

the  sum  stated 
ices  during  the 
were  all  or  th 
plain  and  expl 
amount  of  injvr 
error  was  unctr... 
^  cessary,  and  was 

x\nother  objectic, 
]  loof  was  on  the  ('. 
obtained  higher  wages 
for  the  plaintiff  to  shov 
to  work  after  his  discb 
stated,  under  the  circun; 

The  principle  applicable  to  such 


:  "      nlaintiff's  serv- 

ed those  wages 
■  declared  was 
ascertain  the 
oy  the  plaintiffs  in 

.  ,,.    cation.     It  was  un- 

refused. 

•^-^truction  that  the  burden  of 

mt  the  plaintiff  could  have 

n,  and  that  i'  "'       it 

d  in  evidem  t 

this  rule  wa^  pro^i  iy 

lat  the  employer  is  lia- 


TERMINATION    BEFORE   TERM.  537 

ble  to  the  employee  for  such  clamags  as  the  latter  may  sustain,  after 
due  diligence  to  obtain  other  and  the  best  wages  he  can  in  some 
proper  business.  Where  he  fails  to  obtain  employment,  it  is  neces- 
sary that  he  should  show  that  he  was  unable  to  do  so  after  due  dili- 
gence, in  order  to  be  entitled  to  recover  for  the  time  he  was  out  of 
employment.  This  was  the  case  in  Prichard  v.  Martin,  27  Miss. 
306.  But  where  he  obtains  employment,  the  presumption  is  that  he 
gets  the  best  wages  he  can ;  because  the  strong  inducement  of  self- 
interest  would  impel  him  to  do  so,  and  the  idea  is  most  unreasonable 
that  he  did  not  act  accordingly.  Hence  that  presumption  must  pre- 
vail, unless  it  be  shown  by  the  adverse  party,  or  otherwise  appears, 
that  he  accepted  less  wages  than  he  could  have  obtained.  *  *  * 
Tudgment  reversed.^ 


COLBURN  V.  WOODWORTH. 
i860.     Supreme  Court  of  New  York.     31  Barb.  381. 

Action  brought  to  recover  wages,  under  a  contract  to  work  for 
the  plaintiff  for  three  years,  from  August  ist,  1857,  payable  quar- 
terly, and  damages  for  a  breach  of  the  contract  by  the  defendant,  in 
discharging  the  plaintiff  from  his  employment,  on  the  26th  Decem- 
ber, 1857,  without  cause.  The  defendant  pleaded  and  proved  that 
in  January,  1858,  after  the  plaintiff  was  discharged,  he  commenced 
an  action  in  this  court  against  the  defendant,  and  in  his  complaint 
claimed  one  quarter's  wages,  and  damages  for  the  wrongful  dis- 
charge on  the  26th  of  December,  set  forth  in  the  present  complaint. 
That  issue  was  joined  and  the  cause  referred,  and  the  referee  re- 
ported in  favor  of  the  plaintiff,  for  one  quarter's  wages  (less  the 
value  of  his  lost  time  and  payments  made  to  him),  and  "that  the 
second  quarter  of  the  contract  not  having  expired  when  the  suit  was 
commenced,  he  is  not  entitled  to  recover  for  the  pa3'ment  of  that  in 
this  action."  The  plaintiff  had  judgment  on  the  report.  The  court, 
on  the  trial  in  this  case,  rejected  evidence  offered  to  show  that  the 
plaintiff  had  been  ready  to  perform,  and  had  been  out  of  employment 
since  his  discharge,  and  granted  a  motion  for  a  non-suit,  on  the 
ground  that  the  former  action  was  a  bar  to  the  present  claim.  The 
plaintiff's  counsel  excepted,  and  the  court  ordered  that  the  excep- 
tions be  heard  at  the  general  term. 

Johnson,  J. — The  only  question  here  presented  is,  whether  the 
former  action,  brought  by  the  plaintiff,  to  recover  damages  against 

^  The  judgment  was  reversed  on  the  ground  that  a  deposition  de  bene  esse 
was  improperly  admitted.  The  portion  of  the  opinion  dealing  with  this  point 
is  omitted. 


538  DUTIES    OF    PRINCIPAL    TO    AGENT. 

the  defendant  for  a  breach  of  the  same  contract,  is  a  bar  to  this  ac- 
tion. The  plaintiff,  in  the  former  action  counted  upon  a  breach  of 
the  contract  by  the  defendant,  in  discharging  him  from  further  work 
and  labor,  under  the  contract,  and  refusing  to  allow  him  to  work  any 
longer  under  the  same,  and  claimed  damages  by  reason  of  such 
breach,  and  for  loss  of  employment  and  inability  to  obtain  other  em- 
ployment on  terms  as  favorable  as  he  had  secured  by  the  agreement. 

The  plaintiff  in  this  action  avers  the  same  identical  breach,  and  the 
right  of  action  is  predicated  entirely  upon  it.  It  is  true  that  in  addi- 
tion to  his  other  damages  he  now  claims  for  wages  according  to  the 
contract,  for  the  three-quarters  of  the  year  ending  on  the  ist  of 
August,  1858.  But  this  is  not  for  services  rendered  under  the  agree- 
ment, but  the  claim  for  compensation  is  founded  upon  the  alleged 
offer  and  readiness  of  the  plaintiff  to  work  according  to  the  agree- 
ment, and  the  defendant's  refusal  to  allow  him  to  do  so.  This,  how- 
ever, makes  no  difference  in  the  nature  of  the  action.  It  is  still 
founded  upon  the  breach  of  the  contract  by  the  defendant,  and  not 
upon  its  performance  by  the  plaintiff.  It  is  entirely  clear  that  the 
two  causes  of  action  are  identical,  however  the  measure  of  damages 
claimed  may  be  varied.  On  the  former  trial  the  referee,  as  it  ap- 
pears, found  as  matter  of  fact  that  the  defendant  had  wrongfully 
put  an  end  to  the  contract  as  alleged  in  the  complaint,  without  any 
fault  on  the  part  of  the  plaintiff,  but  held,  nevertheless,  as  matter  of 
law,  that  the  plaintiff  was  not  entitled  to  damages  for  such  breach, 
but  must  wait  until  another  payment  became  due  by  the  terms  of 
the  agreement,  before  he  could  maintain  an  action  for  such  cause. 
In  this  the  referee  was  clearly  mistaken.  A  party  discharged  under 
such  circumstances  has  three  remedies,  either  of  which  he  may  pur- 
sue at  his  election.  First,  he  may  bring  a  special  action  to  recover 
the  damages  arising  from  such  breach ;  and  this  remedy  he  may 
pursue  the  moment  the  contract  is  broken.  Secondly,  he  may  treat 
the  contract  as  rescinded,  and  immediately  sue  on  the  quantum 
meruit  for  the  work  actually  performed.  Or,  thirdly,  he  may  wait 
until  the  termination  of  the  period  for  which  he  was  hired,  and 
claim  as  damages  the  wages  agreed  to  be  paid  by  the  contract.  (See 
2  Smith's  Lead.  Cases  p.  27,  notes  to  Cutter  v.  Powell.)  It  is  mani- 
fest, however,  that  a  party  under  such  circumstances  could  not  pur- 
sue all  these  remedies  in  separate  actions.  An  action  upon  one,  and 
judgment  upon  it,  would  operate  as  a  bar  to  any  further  action.  This 
necessarily  results  from  the  doctrine  that  a  party  cannot  split  up  a 
demand,  and  maintain  several  actions  for  the  same  cause.  (Fish  v. 
Folley,  6  Hill  54;  Bendemagle  v.  Cocks,  19  Wend.  207.) 

It  is  claimed  on  the  part  of  the  plaintiff  that  the  referee  in  the 
former  action,  having  decided  that  no  action  could  be  maintained 
for  the  cause  alleged,  and  judgment  having  been  entered  upon  his 
report  in  accordance  with  such  decision,  it  cannot  operate  as  a  bar 
to  this  action.     But  the  rule  is  otherwise.     If  the  party  submits  his 


a  new 


tne 


V.  Berick,  Kj 


■) 


n-e  can  be  no  doubt  that 
ture  indivisible. 
•  any  circuf^istai' 
^^arily  from  the  i- 
-nr.ract  is  not  in  i' 
-mt  ninning  with 
ieenoncr 
:e.nt  cau^ 
;e  damages  occasioned  r.y  sucii  : 
.iie  court  upon  hi''    ■  '••     '■'^'-  '■  •nr 
entitle  such  other 

its  performance.       ^  'u  ;i  i:*--  .il;i:.j:  .'^ 
for  a  breach  of  that  character,  it  is  n- 
part  of  the  party  ' 
so  far  at  least  as  i 

perates  as  a  rescission  b; 
jjarty  thus  situate  brings 
damages  has  been  filled, 
known,  so  as  to  be  suscepl. 
He  cannot  sever  them,  ar 
due,  when  di 
dama'Tes  the 


•n  lu-iL- 


d  for  in  case  of 

.  '  recover  damai 

an  election,  on  lIi;. 

Lhe  contract  at  an  end, 

concerned.    The  action 

er  performance.     If  the 

fTi,"  entire  measure  of 

:ave  all  become 


on-suit  was  properiv 


!  :OSTIG.^ 

1846.       SU: 

\  on  part  of  th 
-•e.    The  action  v 


ichine  \\ 


53S 


DU 


■RINCIPAL   T( 


the  defendant  for  a  breach  oi  the  same  cc 

tion.     The  plaintiff,  i-  '•'     '■      -  •    ■■-^'"-•n 

ilie  contract  by  the  d^ 

and  labor,  under  the' 

lonj^or  under  the  Sci- 

breach,  and  for  loss  > 

ployment  on  terms  r 

The  plaintiff  iu 
right  of  action  is 
tion  to  his  other 
contract,  for  the  un 
Aus^ust,  T858,    But  ti/ 


ment,  ar 


the 

In  th^-^ 
such  cir 
sue  at  h 
the  dan 
pursue  i 
the  conL_         ^. 
meruit  for  the  w 
until  the  termiii 
claim  as  damage:- 
2  Smith's  Lead.  1 
fe^-t  however,  tl' 


jy  results  fi' 
,    ..       ..  and  main  tail: 
Folk- y.  6  Hill  54 ;  Bendt 
It  is  claimed  on  the  p 
former  action,  having  d' 
for  the  cause  alleged,  ar 
report  in  accordance  witi, 
to  this  actir-  +he.ruifc 


me  sani 

:y  upon 

claims  f  * 

>f  the  y 

services 

ntion  is 

'I  to  wo, 

to  allow  him  10  do  so 


a  bar  to  this  ac- 

■^-'M  a  breach  of 

virther  work 

•■■  ork  any 

'f  such 

em- 

icnt. 

.  and  the 

-;...t  in  addi- 

•      rding  to  the 

I  the  1st  of 

■r  the  agree- 

.  the  all- 

10  the  aj.; 

This,  how- 


tiature  of  the  action.     It  is  still 
ict  by  the  defendant,  and  not 
'*■  is  entirely  clear  that  the 
the  measure  of  damage-- 
ee,  as  it  ap- 
i  wrongfull\' 
without  any 
as  matter  01' 
'  for  such  bread; 

by  the  terms  o' 
^>  for  such  cause 
discharged  under 
iich  he  may  pur 
action  to  rec 
remedy  he 
lly,  he  may 
on  the  qua;: 
lly,  he  may  wait 
•     '■-"--  bired,  and 
.t.    (See 
ii  is  mani- 
ald  not  pur- 
pon  one,  and 
.  action.  This 
a  pany  cannot  split  up  a 
the  same  caii=;''      C^l^h.  v 
■)  Wend.  20; 
tf  that  the  t 
•ion  could  1 

.IpOil    IHS 

as  a  bar 
lie  party  submits  his 


TERMINATION    BEFORE    TERM.  539 

claim  to  be  passed  upon,  it  will  operate  as  a  bar,  if  the  decision  is 
erroneous,  the  same  as  though  it  were  not,  if  his  cause  of  action  has 
then  accrued.  The  error  must  be  corrected  in  that  action  by  review 
of  the  verdict  or  judgment,  and  not  by  a  new  action  for  the  same 
cause.  (Brockway  v.  Kinney,  2  John.  210;  Platner  v.  Best,  ii  id. 
530;  Phillips  V.  Berick,  16  id.  136;  Cowen  &  Hill's  Notes,  842,  3, 

956,  7-) 

There  can  be  no  doubt  that  the  cause  of  action  here  alleged  is  in 
its  nature  indivisible.  All  the  damages  which  the  plaintiff  could 
under  any  circumstances  recover  were  such  as  flowed  directly  and 
necessarily  from  the  breach,  which  is  the  sole  cause  of  action.  The 
contract  is  not  in  the  nature  of  a  continuing  covenant,  like  a  cove- 
nant running  with  land.  It  is  idle  to  suppose  that  when  such  a  con- 
tract has  been  once  put  an  end  to  by  one  party  entirely,  though  with- 
out sufficient  cause,  and  the  other  party  has  brought  his  action  for 
the  damages  occasioned  by  such  breach,  and  had  the  judgment  of 
the  court  upon  his  claim,  the  contract  still  remains  in  force,  so  as  to 
entitle  such  other  party  to  the  compensation  provided  for  in  case  of 
its  performance.  When  the  action  is  brought  to  recover  damages 
for  a  breach  of  that  character,  it  is  necessarily  an  election,  on  the 
part  of  the  party  prosecuting  it,  to  consider  the  contract  at  an  end, 
so  far  at  least  as  performance  on  his  part  is  concerned.  The  action 
operates  as  a  rescission  by  him  as  to  further  performance.  If  the 
party  thus  situate  brings  his  action  before  the  entire  measure  of 
damages  has  been  filled,  or  before  the  damages  have  all  become 
known,  so  as  to  be  susceptible  of  proof,  it  is  his  folly,  or  misfortune. 
He  cannot  sever  them,  and  recover  part  in  one  action  and  the  resi- 
due, when  discovered,  in  another.  But  the  question  as  to  what 
damages  the  plaintiff  ought  to  recover  as  his  compensation  does  not 
arise  here.  That  question  necessarily  arose  in  the  other  action,  and 
should  have  been  there  determined.  That  action  being  a  bar,  the 
non-suit  was  properly  granted. 

New  trial  denied.^ 


COSTIGAN  V.  MOHAWK  &  HUDSON  R.  R.  CO. 

1846.     Supreme  Court  of  New  York.     2  Den.  609. 

Motion  on  part  of  the  plaintiff  to  set  aside  the  report  of  a  sole 
referee.  The  action  was  assumpsit  on  a  contract  by  which  the  de- 
fendants agreed  to  employ  the  plaintiff  to  serve  them  as  superin- 
tendent of  their  railroad. 

^Accord:  Richardson  v.  Eagle  ^lachine  Works,  78  Ind.  422.  Compare  Arm- 
field  V.  Nash,  31  Miss.  361. 


540  DUTIES    OF   PRINCIPAL   TO   AGENT. 

The  case  proved  was  as  follows :  The  defendants  employed  the 
plaintiff  to  superintend  their  railroad  for  one  year,  from  May  i,  1843 
— at  a  salary  of  $1,500  for  the  year,  together  with  the  use  of  a 
dwelling  house  worth  $150  per  annum.  He  commenced  the  service 
and  continued  in  the  employment  until  July  ist  of  that  year,  when 
he  was  dismissed  by  them  without  cause.  Upon  this  he  gave  them 
notice  that  he  was  ready  to  proceed  and  perform  his  contract,  and 
that  he  should  claim  his  salary  for  the  entire  year,  according  to  the 
agreement.  He  was  not,  however  allowed  to  go  on  with  the  busi- 
ness, and  remained  wholly  imoccupied  for  the  residue  of  the  year, 
although  at  all  times  ready  to  serve  according  to  his  contract. 

The  referee  reported  $402.93  to  be  due  the  plaintiff;  which  was 
arrived  at  by  allowing  him  $625  on  account  of  salary,  and  $62.50 
for  being  deprived  of  the  house,  and  deducting  $284.59  which  had 
been  paid.  He  was  of  opinion  that  three  months  was  a  reasonable 
time  for  the  plaintiff  to  find  other  employment,  and  accordingly  al- 
lowed him  the  amount  which  would  have  been  due  for  five  months' 
services. 

Beardsley,  J. — As  a  general  principle,  nothing  is  better  settled 
than  that  upon  these  facts  the  plaintiff  is  entitled  to  recover  full  pay 
for  the  entire  year.  He  was  ready  during  the  whole  time  to  perform 
his  agreement,  and  was  in  no  respect  in  fault.  The  contract  was  in 
full  force  in  favor  of  the  plaintiff,  although  it  had  been  broken  by 
the  defendants.  In  general,  in  such  cases,  the  plaintiff  has  a  right 
to  full  pay.  The  rule  has  been  applied  to  contracts  for  the  hire  of 
clerks,  agents,  and  laborers,  for  a  year  or  a  shorter  time,  as  also  to 
the  hire  of  domestic  servants,  where  the  contract  may  usually  be  de- 
termined by  a  month's  notice,  or  on  payment  of  a  month's  wages. 
The  authorities  are  full  and  decisive  upon  this  subject:  Chit.  Con., 
5th  Am.  ed.,  575-581 ;  i  Chit.  Gen.  Pr.  72-83 ;  Browne  on  Actions 
at  Law  181-185,  504,  505  ;  Besston  v.  Collyer,  4  Bing.  309;  Fawcett 
v.  Cash.  5  Barn.  &  Adol.  904;  Williams  v.  Byrne,  7  Ad.  &  El.  177; 
French  v.  Brookes,  6  Bing.  354 ;  Gandell  v.  Pontigny,  4  Camp.  375 ; 
Robinson  v.  Hindman,  3  Esp.  235 ;  Smith  v.  Kingsford,  3  Scott 
279 ;  Smith  v.  Hayward,  7  Ad.  |&  El.  544.  In  no  case  which  I  have 
been  able  to  find,  and  we  were  referred  to  none  of  that  character, 
has  it  ever  been  held  or  even  urged  by  counsel,  that  the  amount 
agreed  to  be  paid  should  be  reduced,  upon  the  supposition  that  the 
person  dismissed  might  have  found  other  employment  for  the  whole 
or  some  part  of  the  unexpired  term  during  which  he  had  engaged  to 
serve  the  defendant.  And  yet  this  objection  might  be  taken  in  every 
such  case,  and  in  most  of  them  the  presumption  would  be  much  more 
forcible  than  in  the  case  at  bar.  The  entire  novelty  of  such  a  defense 
affords  a  very  strong  if  not  a  decisive  argument  against  its  solidity : 
Duke  of  Newcastle  v.  Clark,  8  Taunt.  602.  Nor  do  I  find  any  case 
in  which  it  was  proved  that  other  employment  was  offered  to  the 
plaintiff  after  his  dismissal,  and  that  his  recovery  was  defeated  or 


CjM 


I  for  th 


,ere 
--rlv 


id  oiherwibir 
...      .        ^  the  time   f 
:■  payment :    Ab.  Sh.. 
hns.  5t8-  ''■■■-'  - 
.    n  51,  5-, 
And  upon 
■lish  a  given 
•.nd  fails  to  do  so,  lie 
' y  him,  deducting 
;iersons,  for  frei^' 
■tipulated  to  fuiu.  - 
If.ast  232;  Puller  v.  Hal Is' lay 
.>6,  73.    Upon  thi'  !e,  a;:   j   I'.r. 

/.  Com<:t'Dck.  21  V  -7  ^34  Am. 

'*>  there 
,  lortatioi 
•Vhitehall  to  AlbanVj  but 
\n  action  was  thereupon 
';nd  the  contract  and  its  ^ 
Tits  offered  to  prove  thai  : 
id  not  exceed  five  dollars" 
uience  in  order  to  es' 
ate  certainty,  from  t 
lear  that  any  objection  w. 
eport  shows  that  the  e-N 
nfer  then,  tliat  the  offer  ■ 
ent  evidence,  that  the  pi 
.oat  instead  of  the  horses 
ontract,  v.:is  but  small,    ' 
■a';  the  amount  the  plai^ 
cr.    So  this  court  ht : 
■  '  court  below,  the  j- 
liancellor,  as  stated  in  tli. 
'  ''"'e  same  effect,  air ' 
ent  to  admit  of  « 
'>es  it  a^ 
in  faci- 


le V.  Catara 

vsrrnii,  the  case  of  bunv.:,-  •■ 

Dec.  2<^2),  was  decided.    The 

fifty-five  dollars  for 

■  -,  on  the  canal,  from 

'y  with  their  agreement. 


LllC 

T 


540 


Di/ni 


case  proved  wa- 
'  to  superintc!"' 
salary  of  $• 
iiv  '   Hise  vvor 

ai  .ed  in  tl, 

he.  vvri.-.  viismissed'  iv 
notice  that  he  \va~. 
that  he  should 
agreement.    Ih 
ness,  and  rema' 
although  at    '■ 

The  rcfc 
arrived  at 
for  bf'ine 


ter. 

The  auvlior/ 
5th  Am.  eci 
at  I.ivv  18 T 
V.  (."^asti    •:; 
Freiic! 
Robinson 
279;  Smith 
l>een  able  to  au 
Icici"  it  '^■'^^r  bpf 

I  If 

part  of  the 
.i)e  defend-'-'V 
s.-.ch  case,  and  i 
fLM-cible  tha     ' 
r'fiCrds  n  v^ 
Duke  o' 
in   wh). 
■'   intiff  after  his  dismi> 


employed  the 

^lay  I,  1843 

use  of  a 

iheni 

r,  and 

mg  to  the 

...ii  the  busi 

V  of  th'C  yea; 

vf  aci:< ;^ 

ontract. 

lo  be  du 

if;  which  w.' 

^  on  ace 

y,  and  $62.50 

and  dciJ 

59  which  had 

iiat  thre-e  n.i' 

-  a  reasonable 

cr  employmci-  , 

iccordinglv  al- 

uld  have  been  due  for  five  month 

.  nothing-  is  better  settle 

^r  full  pay 

'■:>  perform 

"iiiract  was  i' 

'    1  een  broken  1. 

lintiff  has  a  rigl 

cts  for  the  hire  • 

er  time,  as  also  > 

iiay  usually  !: .     ■ 

:  a  Tiionth's  \. 

■t:    Chit.  Cou 

Me  on  Action 

.  jog ;  Fawcetr 

vd.  &  EI.  T77; 

^  randell  v.  ] 

4  Camp.  375 ; 

Smith 

-ford,  3  Scott 

544.    Ij; 

which  I  have 

,,1 

01  that  character, 

'•    that  the  amount 

>ition  that  the 

L  for  the  whole 

ri^  had  engaged  to 

■'X-  taken  in  every 

aid  be  much  more 

.<■     , ,  ,  1 ,   .       ; ,  '- 

N  or 

dt)  ■                   case 

1  nt 

was                 0  the 

overy  was  defeated  or 

TERMINATION    BEFORE   TERM.  54^ 

diminished  because  he  refused  to  accept  of  such  proffered  em- 
ployment. 

It  has,  however,  been  held,  and  rightly  so,  as  I  think,  that  where 
a  seaman  hired  for  the  outward  and  return  voyage,  was  improperly 
dismissed  by  the  captain  before  the  service  was  completed,  a  re- 
covery of  wages  by  the  seaman  for  the  whole  time,  was  proper,  de- 
ducting what  he  had  otherwise  received  for  his  services  after  his  dis- 
missal and  during  the  time  for  which  his  employer  was  bound  to 
make  payment :  Ab.  Sh.,  4th  Am.  ed.,  442,  443 ;  Hoyt  v.  Wildfire, 
3  Johns.  518;  Ward  v.  xA-mes,  9  id.  138;  Emerson  v.  Rowland,  i 
Mason  51,  52. 

And  upon  the  same  principle,  where  a  merchant  engaged  to  fur- 
nish a  given  quantity  of  freight  for  a  ship,  for  a  particular  voyage, 
and  fails  to  do  so,  he  must  pay  dead  freight,  to  the  amount  so  agreed 
by  him,  deducting  whatever  may  have  been  received  from  other 
persons,  for  freight  taken  in  lieu  of  that  which  the  merchant  had 
stipulated  to  furnish:  Abbott  2'/y,  278;  Puller  v.  Staniforth,  11 
East  232;  Puller  v.  Halliday,  12  id.  494;  Kleine  v.  Catara,  2  Gall. 
66,  "/T,.  Upon  this  principle,  as  I  understand,  the  case  of  Shannon 
v.  Comstock,  21  Wend.  457  (34  Am.  Dec.  262),  was  decided.  The 
defendants  there  engaged  to  pay  the  plaintiffs  fifty-five  dollars  for 
the  transportation  of  a  certain  number  of  horses,  on  the  canal,  from 
Whitehall  to  Albany,  but  failed  to  comply  with  their  agreement. 
An  action  was  thereupon  brought  to  recover  the  fifty-five  dollars, 
and  the  contract  and  its  violation  having  been  shown,  "the  defend- 
ants offered  to  prove  that  the  damages  sustained  by  the  plaintiffs 
did  not  exceed  five  dollars."  What  facts  were  offered  to  be  given 
in  evidence  in  order  to  establish  this  result,  cannot  be  collected  with 
absolute  certainty,  from  the  report  of  the  case,  but  it  does  not  ap- 
pear that  any  objection  was  made  to  the  form  of  the  offer,  and  the 
report  shows  that  the  evidence  was  objected  to  and  excluded.  I 
infer  then,  that  the  offer  of  the  defendants  was  to  show,  by  compe- 
tent evidence,  that  the  plaintiffs  took  other  freight  on  board  their 
boat  instead  of  the  horses,  so  that  their  loss,  by  the  violation  of  this 
contract,  was  but  small.  Upon  the  ground  already  stated,  that  loss 
was  the  amount  the  plaintiff's  were  in  law  and  justice  entitled  to 
recover.  So  this  court  held,  and  as  the  evidence  had  been  rejected 
in  the  court  below,  the  judgment  was  reversed.  The  views  of  the 
chancellor,  as  stated  in  the  case  of  Taylor  v.  Read,  4  Paige  571,  are 
to  the  same  effect,  and  the  propriety  of  the  rule  seems  to  me  too 
apparent  to  admit  of  doubt. 

In  these  cases  it  appeared,  or  was  offered  to  be  shown,  that  the 
plaintiffs  had  in  fact  performed  services  for  others,  and  for  which 
they  had  been  paid,  in  lieu  of  those  they  had  bound  themselves  to 
perform  for  the  defendants,  and  which  the  latter  had  refused  to 
receive.  In  Heckscher  v.  McCrea,  24  Wend.  304,  the  court  went  a 
step  further.    That  case  arose  in  the  superior  court  of  the  city  of 


542  DUTIES    OF    PRINCIPAL   TO   AGENT. 

New  York,  where  McCrea  was  plaintiff.  It  was  an  action  for  dead 
freight  which  the  plaintiff  claimed  under  a  special  contract  with 
the  defendants.  They  had  agreed  with  the  plaintiff  to  furnish  a 
given  number  of  tons  of  freight,  at  a  certain  price,  for  a  return 
cargo  from  China  to  New  York  in  the  plaintiff's  ship.  A  part  of 
the  freight  was  furnished  by  the  defendants,  as  agreed,  but  they 
fell  short  about  one  hundred  and  thirty  tons.  The  agents  for  the 
defendants  at  Canton,  where  the  ship  then  was,  having  no  more 
freight  to  put  on  board  for  the  defendants,  offered  to  supply  the  de- 
ficiency, from  the  goods  of  other  persons  in  their  hands,  which  the 
agents  were  authorized  to  ship  to  the  United  States :  such  shipment 
to  be  made  at  a  reduced,  although  at  the  then  current  rate,  but  with 
an  express  agreement  that  receiving  this  freight  on  such  reduced 
terms  should  not  interfere  with  the  original  arrangement  between 
the  parties  to  this  suit.  This  offer  was  declined,  and  to  the  extent 
of  this  deficiency  the  ship  came  home  empty.  The  action  was  to  re- 
cover for  this  deficient  freight.  The  court  held  that  the  plaintiff 
should  have  taken  the  freight  offered,  although  at  a  rate  below  what 
the  defendants  had  agreed  to  pay :  that  so  far  it  would  have  relieved 
the  defendants  without  doing  injury  tO'  the  plaintiff,  and  by  which 
about  two-thirds  of  the  amount  now  claimed  might  have  been  saved. 

In  all  the  cases  I  have  cited,  the  facts  on  which  the  delinquent 
party  sought  to  bring  the  amount  to  be  recovered,  below  the  sum 
agreed  to  be  paid,  were  proved  or  offered  to  be  proved  on  the  trial. 
Nothing  was  left  to  inference  or  presumption,  and  it  was  virtually 
conceded  that  the  onus  of  the  defense  rested  on  the  defendant.  They 
are  also  cases  in  which  the  plaintiffs  had  either  earned  and  received 
money  from  others,  during  the  time  when  they  must  have  been  em- 
ployed in  fulfilling  their  contract  with  the  defendants,  or  in  which 
they  might  have  earned  it  in  a  business  of  the  same  character  and 
description  with  that  which  th.ey  had  engaged  with  the  defendants 
to  perform. 

The  principles  established  by  the  cases  referred  to  seem  to  me 
just,  and  although  I  have  found  no  case  in  which  they  have  been 
applied  tO'  such  an  engagement  as  that  between  these  parties,  still  I 
should  have  no  hesitation,  where  the  facts  would  allow  it  to  be  done, 
to  apply  them  to  such  a  case  as  this. 

But  first  of  all  the  defense  set  up  should  be  proved  by  the  one 
who  sets  it  up.  He  seeks  to  be  benefited  by  a  particular  matter  of 
fact,  and  he  should  therefore  prove  the  matter  alleged  by  him.  The 
rule  requires  him  to  prove  an  affinnative  fact,  whereas  the  opposite 
rule  would  call  upon  the  plaintiff  to  prove  a  negative,  and  therefore 
the  proof  should  come  from  the  defendant.  He  is  the  wrong-doer, 
and  presumptions  between  him  and  the  person  wronged  should  be 
made  in  favor  of  the  latter.  For  this  reason  therefore  the  onus  must 
in  all  such  cases  be  upon  the  defendant. 

Had  it  been  shown,  in  the  case  at  bar,  that  the  plaintiff,  after  his 


;i;  •;  ha'. 

■■  Cueing;  the  re"n\. c: 
icca  busincs-  ■'■'■   ^ 
'■ied  on  in  tl 
the  plaintiff 
ladv.  and  tl' 


I  think  \\ 

'lintiflf  mighr  ^;^\.   '  u;-i,ii  ,  ;uj  i  i 

\he  renort,  in  n;  .;\    Tf  the  df 


g-iven,  t: 

live  hunu. .  ., :  ,    . 

lars,  and  for  a  full  year, 
paid  toward  the  c-^— 
Report  set  asi'' 


agent,  ai 


>rk,  where  ^  :cion  for  dead 

'     '      '  with 

'lih  a 

•ci   oi   h  etum 

China  ;art  of 

;ght  was  but  they 

-.      ..  rt  ahou'  T"^'-  'l'"' 

defendant.^   at  ' 

ire  '■  '  ■        ■•'■  .\   l'i^■  uc- 

lioi  vhich  the 

af,'  '  shipment 

to  ,  ,  but  with 

such  reduced 

uent  between 

to  the  extent 

ion  was  to  re- 

the  plaintiff 


ne  dehnquent 

'"'  the  sum 

the  trial. 

aiK..  II   \\:!S  virtually 
the  defendant.   Thev 


pi  in  which 

dc 

m  to  me 


u  be  done, 

■d  by  the  one 

'  '•■  matter  of 

him.  The 


nius  must 
it  been  shov  ihe  plaintiff,  after  his 


TERMINATIOX    BEFORE    TERM.  543 

dismissal  had  engaged  in  other  business,  that  might  very  well  have 
reduced  the  amount  which  the  defendants  otherwise  ought  to  pay. 
For  this  the  cases  I  have  referred  to  would  furnish  sufficient  au- 
thority. But  here,  it  appears  that  the  plaintifif  was  not  occupied  dur- 
ing any  part  of  the  time  from  the  period  of  dismissal  to  the  close  of 
the  year. 

Again,  had  it  been  shown  on  the  trial,  that  employment  of  the 
same  general  nature  and  description  with  that  which  the  contract 
between  these  parties  contemplated,  had  been  offered  to  the  plaintiff, 
and  had  been  refused  by  him,  that  might  have  furnished  a  ground  for 
reducing  the  recovery  below  the  stipulated  amount.  It  should  have 
been  business  of  the  same  character  and  description,  and  to  be  car- 
ried on  in  the  same  region.  The  defendants  had  agreed  to  employ 
the  plaintiff  in  superintending  a  railroad  from  Alban}-  to  Schenec- 
tady, and  they  cannot  insist  that  he  should,  in  order  to  relieve  their 
pockets,  take  up  the  business  of  a  farmer  or  a  merchant.  Nor  could 
they  recjuire  him  to  leave  his  home  and  place  of  residence,  to  en- 
gage in  business  of  the  same  character  with  diat  in  wdiich  he  had  been 
employed  by  the  defendants. 

I  think  we  cannot,  as  between  these  parties,  presume  that  the 
plaintiff'  might  have  been  so  employed  and  that  he  refused  ;  and  there- 
fore the  report,  in  my  judgment,  should  be  set  aside.  If  the  defend- 
ants can  prove  that  such  employment  was  offered,  it  may  reduce 
the  amount  otherwise  recoverable ;  but  if  such  proof  shall  not  be 
given,  the  report,  I  think,  should  be  for  the  salary  at  one  thousand 
five  hundred  dollars  a  year,  and  rent  at  one  hundred  and  fifty  dol- 
lars, and  for  a  full  year,  deducting  the  amount  which  may  have  been 
paid  toward  the  same. 

Report  set  aside. ^ 


COOPER,  J.,  IN  TIMBERLAKE  v.  THAYER. 
1893.     Supreme  Court  of  ^Mississippi.     71  Miss.  279. 

If  we  were  authorized  to  make  the  law,  instead  of  announcing  it 
as  it  is  already  made,  we  would  unhesitatingly  hold  that  one  con- 
tracting to  render  personal  service  to  another  for  a  specified  time, 
could,  upon  breach  of  the  contract  by  himself,  recover  from  that 

^  If  the  agent,  after  his  discharge,  has  engaged  in  other  employment,  the 
original  employer,  when  sued  for  breach  of  his  agreement,  is  entitled  to  have 
deducted  from  the  damages  whatever  the  agent  received  from  the  subsequent 
employment.  Williams  v.  Anderson,  9  Minn.  50;  Sutherland  v.  Wyer,  67 
I\Ie.  64. 

It  is  the  duty  of  the  employee,  when  wrongfully  discharged,  to  seek  other 
employment  of  similar  kind.    Williams  v.  Chicago  Coal  Co.,  60  111.  149. 

See  Strauss  v.  Meertief,  64  Ala.  299. 


544  DUTIES   OF    PRINCIPAL   TO   AGENT. 

other  for  the  vakie  of  the  service  rendered  by  him  and  received  by 
that  other,  subject  to  a  diminution  of  his  demand  to  the  extent  of  the 
damage  flowing  from  his  breach  of  contract.  In  Britton  v.  Turner, 
6  N.  H.  481,  Judge  Parker  demonstrates,  in  an  admirable  and 
powerful  opinion,  the  equity  of  such  a  rule ;  and  it  was  held  in  that 
case  that  such  was  the  rule  of  the  common  law.  The  courts  of  some 
of  the  states  have  followed  or  been  influenced  by  that  opinion,  and 
have  overturned  or  mitigated  the  rigorous  rule  of  the  common  law. 
Pixler  V.  Nicholas,  8  Iowa  106  (74  Am.  Dec.  298)  ;  Coe  v.  Smith, 
4  Ind.  79  (58  Am.  Dec.  618)  ;  Riggs  v.  Howe,  25  Tex.  Supp.  456 
(78  Am.  Dec.  584)  ;  Chamblee  v.  Baker,  95  N.  C.  98;  Purcell  v. 
McComber,  1 1  Neb.  209.  But  the  decided  weight  of  authority  is  to 
the  contrary.  Lawson  on  Contracts,  §  470,  n.  4,  and  authorities  there 
cited.  And  it  was  decided  at  an  early  day  in  this  state  that  an  entire 
contract  of  this  character  could  not  be  apportioned,  and  that  under 
the  circumstances  named  no  recovery  could  be  had  by  the  party 
guilty  of  the  breach  of  contract ;  that  he  could  not  recover  on  the 
special  contract  because  he  himself  had  not  performed  it,  nor  upon 
quantum  meruit,  because  of  the  existence  of  the  special  contract. 
Wooten  V.  Read,  2  Smed.  &  M.  585.  In  Hariston  v.  Sale,  6  Smed.  & 
M.  634,  and  Robinson  v.  Sanders,  24  Miss.  391,  it  was  held  that  an 
overseer's  contract  with  his  employer,  though  made  for  a  definite 
time,  was  not  an  entire  contract,  and  recoveries  were  allowed  on 
the  common  counts. 

The  cases  relied  on  to  support  the  rule  announced  in  these  de- 
cisions were  Byrd  v.  Boyd,  2  McCord  (So.  Car.)  246;  Eaken  v. 
Harrison,  id.  249 ;  ]\IcClure  v.  Pyatt,  id.  26.  Of  these,  the  leading 
cases  is  Byrd  v.  Boyd ;  the  others  simply  follow  it.  In  Byrd  v.  Boyd, 
the  court  evidently  legislates  the  exception  into  the  law,  and  so,  in 
effect,  declared,  for,  after  referring  to  the  rule  of  the  common  law, 
the  court  proceeds  to  say :  "There  is,  however,  a  third  class  of  cases 
for  which  it  is  necessary  to  provide,"  and  then  declares  that  these 
cases  for  which  it  is  necessary  for  the  court  "to  provide"  are  "those 
where  the  employer  reaps  the  full  benefit  of  the  services  which  have 
been  rendered,  but  some  circumstance  occurs  which  renders  his  dis- 
charging the  overseer  necessary  and  justifiable,  and  that,  perhaps, 
not  immediately  connected  with  the  contract,  as  in  the  present  case." 

The  South  Carolina  court  put  its  decision  expressly  upon  the 
ground  of  expediency,  and  confined  its  effect,  by  necessary  implica- 
tion, to  the  particular  sort  of  contract  under  consideration.  Since 
the  abolition  of  slavery  we  have  no  such  contracts,  stride,  as  those 
which  formerly  existed  between  employer  and  overseer,  and  the  de- 
cisions in  Wooten  v.  Reed,  and  Hamilton  v.  Sale  have  no  field  of 
operation.   The  instructions  for  the  plaintiff  were  properly  given.^ 

^See  Davis  v.  Maxwell,  12  Met.   (Mass.)  286. 


ndaiit  appcr' 
N,  J.— The  r 
plaintiff's  .v 
ith:  and  iht: 
rich  was  reasKji-. 
ecial  contract;  h\ 
•aciondant  six  m* 

■  of  the  six  moi' 

.   the  plaintit: 

...„  son  that  th( 

n  of  the  clefendai 

■  for  the  purpose.-> 
lie  contract,  and  the 


;  V,  anu  iiitn  icn  ■ 

t  the  defendriTir  , 

'ith  to  moni' 

--ial  damag'e.s  ,,      .  ^ 

part  of  plaintiff;  but 
-atived  the  rigfht  of  tii 

'unt  of  his  non-i>eff' 

en,  other  q; 
.red.    The  c 


siOiciy  Oil  tiie  g\i"oiiiia 

f  nir  months,  or  from 

the  defendant  of 

-'  *-he  contract  on 

>  asked,  which 


■n  the  evidence  in  tl 


the  deff H''"^?';*" 


hese  re 


.-  Gl  ill: 
■It   for  ' 


544 


Df 


>r  the  valu«  of  i 

'  'subject  to  ■: 

ving  fro 

■■   4S1,  Jud 

.;1  opinion,  t-. 

't  such  V 

-tates  h: 
have  overturncf' 
Pixler  V.  Nichi  ' 
4  Irtd.  79  (58  : 
(78  Am.  Dec. 
McComber,  11 
the  con 
cited . 
cor 


con  Id 


xivcd  by 
■  cat  of  tlie 
.  Turner, 
;';  ^?   and 
:•  that 
some 
.,  and 
coniiiion  lav. 
Coe  V.  Smitli 
■X.  Supp.  45> 
)i> ;  Purcell  \ 
luthority  is  i.^ 
rhorities  there 
that  an  entire 
;id'  that  under 
'"V  the  party 
er  on  the- 
..  nor  upon 
-  cial  contract. 
le,  6  Smed.  & 
<  held  that  an 
for  a  definite 
ie  allowed  on 


th 
ef: 

th' 


been  rendered, 


The  insti 


mpunced  in  these  de- 
Car.)  246;  Eaken  v. 
^"*f  these,  the  leading 
In  Byrd  v.  Boyd. 
he  law,  and  so,  in 
the  common  law, 
"  cases 
these 
ire  "those 
hich  have 
:s  his  dis- 
j!'-iiriv..:!i-,   :wir;  :itai,  perhaps, 
ntract,  as  in  the  present  case." 
upon   the 
V  implica- 
)n.    Since 
.  as  those 
id  the  de- 
■  u.iv.:  no  field  of 
[uoperly  given. ^ 


laxwell. 


TERMINATION    BEFORE   TERM.  545 

DIEFENBACK  v.  STARK. 
1883.     Supreme  Court  of  Wisconsin.     56  Wis.  463. 

The  defendant  appealed  from  a  judgment  in  favor  of  plaintiff. 

Orton,  J. — The  first  count  of  the  complaint  is  for  four  months' 
labor  of  plaintiff's  son,  for  which  the  defendant  promised  to  pay  $16 
per  month;  and  the  second  count  is  for  four  months'  labor  of  the 
son,  which  was  reasonably  worth  $16  per  month.  The  answer  sets 
up  a  special  contract  by  which  the  plaintiff's  son  was  to  work  for 
the  defendant  six  months,  at  $16  per  month,  to  be  paid  at  the  expira- 
tion of  the  six  months,  and  avers  the  non-performance  of  the  con- 
tract by  the  plaintiff.  It  appears  from  the  testimony  of  the  plaintiff 
and  the  son  that  the  contract  was  that  the  son  was  to  work  on  the 
farm  of  the  defendant  six  m.onths  from  April  i,  for  $16  per  month, 
and  for  the  purposes  of  the  case  in  this  court,  this  must  be  accepted 
as  the  contract,  and  the  whole  of  it.  The  defendant  and  another  wit- 
ness present  testified  to  the  contract  as  stated  in  the  answer.  It  was 
also  proved  that  the  son  worked  under  this  contract  for  four  months 
only,  and  then  left  the  service  of  the  defendant  solely  on  the  ground 
that  the  defendant  refused  to  pay  him  for  such  four  months,  or  from 
month  to  month.  There  was  evidence  offered  for  the  defendant  of 
special  damages  by  reason  of  the  non-fulfilment  of  the  contract  on 
the  part  of  plaintiff ;  but  as  in  our  view,  the  instructions  asked,  which 
negatived  the  right  of  the  plaintiff  to  recover  under  the  evidence  on 
account  of  his  non-performance  of  the  contract,  ought  to  have  been 
given,  other  questions  raised  by  the  exceptions  need  not  be  con- 
sidered. The  county  court  refused  to  instruct  the  jury  as  requested 
by  the  defendant's  counsel,  as  follows:  i.  That  the  contract  (as 
stated  by  the  plaintiff  and  his  son)  was  an  entire  contract ;  2,  that 
from  the  evidence  in  the  case,  the  money  due  on  the  contract  in 
question  wa.s  payable  the  ist  day  of  October;  3,  that  the  action  was 
prematurely  brought ;  4,  that  the  plaintiff  was  not  entitled  to  recover ; 
5,  that  if  you  find  the  plaintiff's  boy  left  of  his  own  accord,  without 
fault  of  the  defendant,  the  plaintiff  cannot  recover;  6,  that  the  fact 
that  the  defendant  did  not  pay  plaintiff's  boy  money  when  asked  for, 
was  not  sufficient  reason  for  the  boy  to  leave. 

The  point  of  these  requests  to  instruct  the  jury  was  substantially, 
that  the  plaintiff*  could  not  recover  in  this  action  on  the  contract,  or 
upon  the  common  count  for  work  and  labor,  without  showing  full 
performance  of  the  contract  on  his  part  by  the  labor  of  the  son  for 
the  defendant  for  the  whole  six  months,  unless  excused  by  the  act 
of  God  or  the  fault  of  the  defendant,  or  that  the  money  on  the  con- 
tract was  due  only  at  the  expiration  of  that  time,  upon  such  per- 
formance; or  in  other  words,  that  this  contract  was  an  entirety,  and 
Txcither  party  could  recover  of  the  other  without  full  performance 
35 — Reinhard  Cases. 


546  DUTIES   OF    PRINCIPAL   TO   AGENT. 

on  his  part,  or  legal  excuse  for  non-performance.  The  county  court 
committed,  in  our  opinion,  the  double  error  of  refusing-  to  give  these 
instructions,  and  submitting  to  the  jury  the  question  whether  the  con- 
tract was  an  entire  one,  or  whether  the  money  was  due  monthly  or 
at  the  end  of  the  six  months.  It  was  the  dut}'  of  the  court  to  con- 
strue this  contract,  as  testified  to  by  the  plaintiff  himself,  and  not 
leave  such  a  question  to  the  jury.  Ranney  v.  Higby,  5  Wis.  62; 
Mowry  v.  Wood,  12  id.  413;  Martineau  v.  Steele,  14  id.  272;  and 
numerous  other  cases  which  might  be  cited  to  swell  this  opinion,  but 
which  need  not  be,  because  the  decisions  are  all  one  way  on  the 
question.  The  contract,  according  to  the  testimony  of  the  plaintiff, 
was  an  entirety,  and  no  recovery  could  be  had  without  proof  of  full 
performance,  or  performance  excused,  and  the  compensation  was 
to  be  paid  only  at  the  end  of  the  six  months,  on  full  performance 
by  the  plaintiff,  and  the  court  should  have  so  instructed  the  jury, 
or  have  given  the  instructions  asked  by  the  defendant,  which  im- 
ported the  same  thing,  and  this  presents  the  real  question  in  the 
case  upon  this  appeal ;  for  the  plaintiff,  on  this  evidence  and  the  in- 
structions, obtained  a  verdict  in  his  favor  at  the  rate  of  $16  per  month 
for  four  months,  and  obtained  judgment  therefor. 

From  some  general  language  in  the  text-books,  as  well  as  in  some 
opinions  in  cases  of  other  contracts,  it  would  seem  as  if  this  ques- 
tion in  respect  to  contracts  for  mere  work  and  labor,  or  for  mere 
personal  service,  was  in  conflict.  But  we  have  the  authority  of  so 
able  and  eminent  a  jurist  as  Judge  Parsons  for  saying  that  there  is 
really  but  one  case,  and  that  is  the  one  cited  in  the  brief  of  the 
learned  counsel  for  the  respondent,  in  which  it  is  held  that  on  a 
contract  for  services  merely,  a  recovery  can  be  had  upon  a  quantum 
meruit  for  the  value  of  the  service  already  rendered  under  such  a 
contract,  without  a  full  performance.  That  case  is  the  noted  one  of 
Britton  v.  Turner,  6  N.  H.  481 ;  26  Am.  Dec.  713.  But  it  seems  there 
were  other  cases  in  the  same  state,  and  in  at  least  one  other  state, 
before  that  text  was  written,  and  there  have  been  cases  since  in 
Iowa,  and  perhaps  in  some  other  states,  to  the  same  effect.  It  is 
safe  to  say,  however,  that  they  are  against  the  current  of  authority 
in  this  country  and  in  England,  and  certainly  against  reason.  To 
allow  suit  in  such  cases  upon  a  quantum  meruit,  without  full  per- 
formance and  recoupment  of  damages,  would  in  most  cases  be  quite 
inadequate  to  indemnify  the  employer  under  the  ordinary  rule  of 
such  damages. 

The  distinction  between  such  a  contract  and  building  contracts, 
and  some  others,  in  which  this  equitable  doctrine  has  been  applied, 
is  very  clear  and  distinct  and  rests  upon  at  least  plausible  reasons. 
In  respect  to  the  latter  contracts  it  is  said  in  i  Story  on  Cont.,  §  2y : 
"li,  however,  a  party  acting  honestly,  and  with  bo)ia  fide  intention  of 
fulfilling  the  contract,  performs  it  substantially,  but  fails  in  some 
comparatively  slight  particular,  he  is  entitled  to  a  fair  com.pensa- 


!-•  ■•    TERM. 

"-.n  accordinc:  eceivins:  credit  for 

•  ■      "  .         ^       itions." 

'n  the 
class  ■  -^d 

by  thi.i  -iS 

or  in  any  text-bo'  n 

of  a  building  in  a  . 
the  employer  acce]) 
^tcd  tiiat  it  W.J 
I  to  some  ci 

'  meruit,  k 

ding  to 
tracts  which  fall  v 
reasons  for  the  di?: 

rvices,  or  for  wor 

The  criterion  is 
Com.,  §33)-:  "Wb 
feat  the  objects  of 
j-uch  failure  been  a 

is  perhaps,  a  better  and  nie  criierion  a-iiecluig  ail  such  con- 

tracts stated  in  2  Pars,  on    _  '22,  and  that  is  the  possibility 

or  impossibility  of  a  certain  ap:  nt  of  benefits,  according  to 

the  compensation  in  the  cctr  ■•:  part  performance  only; 

or  as  stated  by  the  author:  liat  w^here  parties  make 

a  contract  which  is  noi  '  '  '        '.-,n 

can  be  recovered  in  an  \^ 

for  which  the  consider 
subsequent  section  the  r 
all  contracts,  and  especiall}- 
and  the  casual  reader  ma^ 
one  party,  without  the  faulr 
the  contract,  in  such  a  n^ 
if  the  other  party  have 

vvould  be  unjust  to  ^i 

ing."    But  in  addition 

■tion,  it  is  said  in  tlu: 

e  authorities,  and  cif 

ion,  that  contracts  f -  ■ 

'd  down  in  the  text. 

on  contracts  for  sei  \ 
't  the  c<:!.  ■ 


:    'But 

tlon 


ing  \?V9. 


■  .  t,  or  icgUi  -- 

•.•:y  court 

!.  in  our  O]"*' 

e  these 
The  con- 
•ithly  or 

at  the  end  of  the 

it:  was  ; 

•urt  to  con- 

strue  this  contrac 

■,,^    },x-     . 

'+    ?ind  not 

leave  such  a  qw 

\'is.  62; 

-''.-'  -ry  V.  W'^.^" 

/.  272;  and 

.  rous  otii 

.opinion,  but 

'i  need  i- 

'le  docu-'. 

lie  way  on  the 

-:;on.    Tl- 

iincT  to  '  ■ 

of  the  plaintiff. 

was  an  ei 

ue  had  wu 

liout  proof  of  full 

per  form  a: 

'     .:.  and  the 

zompensation  was 

to  be  pai 

.^ix  months,  on 

full  performance 

bv  tl-  • 

•   .1  .-njuld  have  so  in 

structed  the  jury, 

.ions  asked  by  the  defendant,  which  im- 

■'■■.   in  the 

the  in- 

■i  $16  per  month 

^,  as  well  as  in  some 

■■-'■'  as  if  this  ques- 

or,  or  for  mere 

;.    i.-M  vc  rj:ivL   ire  authority  of  so 

(]go  Pnrt.Mm  for  saying  that  there  is 

in  the  brief  of  the 

It  is  held  that  on  a 

recovery  can  be  had  upon  a  quantum 


meruit  for  th-j 

rvice  aire'. 

' 

r.^pJered  imder  such  a 

.contract,  withr 

aance,     ! 

is  the  noted  one  of 

'Brit':-  ■      '■-■ 
w ;  1  ■ 

;.  But  it  seems  there 

ast  one  other  state, 

■;ince  in 

,:.    It  is 

^alc  to  bay,  i> 

arc  aj.' 

>i  authority 

]■:.   'his  conn! 

■  1.  an<!'> 

reason.    To 

suit  in 

ithout  full  per- 

■■•-'  and  ,.  V 

-t  cases  be  quite 

e  to  in!.; 

rdinary  rule  of 

The    rl. 

i  building  contracts. 

ucnois. 

■'c 

.JocLriue  has  l>een  applied, 

ear  and 

in 

at 

least  plr.'.-'ible  reasons. 

to  the  : 

Id 

in 

I  Stor}               '  .  §  27 : 

>^  a  pa: . . 

,1 

>\; 

th  bona  ,.-.  .;._:itian  of 

tulfV                  -ontract, 

1 

iaily,  but  fails  in  some 

cotnpiuativii^'  slight  ]  . 

'  to  a  fair  cx)mpensa- 

I 


TERMINATION    BEFORE   TERM.  547 

tion  according  to  the  contract,  the  other  party  receiving  credit  for 
whatever  loss  or  damage  he  may  have  sustained  by  these  deviations." 
Even  beyond  this  rule,  there  are  other  cases,  which  fall  within  the 
class  of  building  contracts,  the  doctrine  of  which  is  as  well  stated 
by  this  court  in  Taylor  v.  Williams,  6  Wis.  363,  as  in  any  other  cases 
or  in  any  text-books,  where  the  contract  was  for  the  construction 
of  a  building  in  a  certain  manner,  and  in  a  certain  time,  and  where 
the  employer  accepted  and  used  the  building,  and  thereby  virtually 
admitted  that  it  was  some  benefit  to  him,  and  that  the  builder  was 
entitled  to  some  compensation  therefor,  he  was  allowed  to  recover 
a  quantum  meruit,  notwithstanding  he  had  not  completed  the  work 
fully  according  to  the  contract.  Without  further  specifying  con- 
tracts which  fall  within  this  principle,  it  is  sufficient  to  state  the 
reasons  for  the  distinction  between  them  and  a  contract  for  hiring 
services,  or  for  work  and  labor  simply. 

The  criterion  is  as  well  stated  by  the  same  author  (i  Story  on 
Cont.,  §  33)  :  "Wherever  the  failure  as  to  part  would  materially  de- 
feat the  objects  of  the  contract,  and  would  have  affected  (it),  had 
such  failure  been  anticipated,  the  contract  would  be  entire."  There 
is  perhaps,  a  better  and  more  certain  criterion  affecting  all  such  con- 
tracts stated  in  2  Pars,  on  Cont.,  §  522,  and  that  is  the  possibility 
or  impossibility  of  a  certain  apportionment  of  benefits,  according  to 
the  compensation  in  the  contract,  in  case  of  part  performance  only; 
or  as  stated  by  the  author :  "We  have  seen  that  where  parties  make 
a  contract  which  is  not  apportionable,  no  part  of  the  consideration 
can  be  recovered  in  an  action  on  the  contract  until  the  whole  of  that 
for  which  the  consideration  was  to  be  paid  is  performed."  In  the 
subsequent  section  the  rule  stated  may  be  broad  enough  to  embrace 
all  contracts,  and  especially  contracts  for  service,  or  work  and  labor, 
and  the  casual  reader  may  be  misled  by  it.  The  language  is :  "If 
one  party,  without  the  fault  of  the  other,  fails  to  perform  his  side  of 
the  contract,  in  such  a  manner  as  to  enable  him  to  sue  upon  it,  still 
if  the  other  party  have  derived  a  benefit  from  the  part  performance, 
it  would  be  unjust  to  allow  him  to  retain  that  without  paying  any- 
thing." But  in  addition  to  the  criterion  laid  down  in  the  previous 
section,  it  is  said  in  the  note  which  contains  a  ver>^  able  review  of 
the  authorities,  and  citation  of  many  authorities  to  sustain  the  po- 
sition, that  contracts  for  service  are  not  embraced  within  the  rule 
laid  down  in  the  text.  "We  are  not  aware  that  there  are  any  cases 
upon  contracts  for  service  fully  sustaining  the  proposition  in  the 
text,  except  the  celebrated  one  of  Britton  v.  Turner,  6  N.  H.  481. 
After  quoting  largely  from  the  opinion  in  that  case,  the  note  proceeds 
to  say:  "But  the  courts  of  other  states  have  thus  far  shown  little 
disposition  to  adopt  the  views  of  the  learned  judge.  Thus  in  EI- 
dridge  v.  Rowe,  2  Gilm.  91,  the  court  held  upon  a  similar  state  of 
facts,  that  the  plaintiff  was  not  entitled  to  recover." 

"An  entire  contract  is  one,  the  consideration  of  which  is  entire  on 


548  DUTIES    OF   PRINCIPAL   TO   AGENT. 

both  sides.  The  entire  fulfihiient  of  the  promise  by  either,  in  the 
absence  of  any  agreement  to  the  contrary  or  waiver,  is  a  condition 
precedent  to  the  fulfihiient  of  any  part  of  the  promise  by  the  other." 
"The  principle  upon  which  this  rule  is  founded  seems  to  be  that  as 
the  contract  is  founded  upon  a  consideration  dependent  upon  the 
entire  performance  thereof,  if  from  any  cause  it  be  not  wholly  per- 
formed, the  casus  foederis  does  not  arise,  and  the  law  will  not  make 
provision  for  exigencies  against  which  the  parties  have  neglected  to 
fortify  themselves."  i  Story  on  Cont.,  §  26.  This  text  is  made  by 
the  author  applicable  to  contracts  for  service,  and  in  a  note  are  cited 
numerous  authorities — too  numerous  to  be  repeated  here — to  sustain 
it.  The  text  proceeds  to  say :  'Tf  a  party  agree  to  work  for  a  year 
for  the  certain  sum  of  $120,  and  before  the  expiration  of  the  year 
abandon  such  agreement  without  the  consent  of  the  other  party,  he 
cannot  recover  upon  a  quantum  ineruit."  Stark  v.  Parker,  2  Pick. 
267;  13  Am.  Dec.  425,  and  many  other  authorities  are  cited  to  the 
same  proposition.  We  can  well  see  how  a  contract  for  service  such 
as  the  one  in  question  ought  not  and  cannot  fall  within  that  class 
of  contracts,  upon  the  part  performance  of  which  a  recovery  of  a 
quantum  meruit  may  be  allowed  by  the  criterions  above  stated.  In 
such  a  contract,  when  the  rate  of  payment  is  stated  by  the  month, 
the  time  of  service  fixed  by  it  would  be  entirely  nugatory,  if  not  es- 
sential to  a  recovery  of  anything  unless  there  has  been  full  perform- 
ance, and  I  think  v/e  may  well  say  that  the  time  of  service  is,  if  not 
the  whole,  a  very  important  and  essential  part  of  the  consideration 
of  the  promise  to  pay.  Such  a  contract  is  not  an  apportionable  one, 
because  the  several  months'  service  may  and  are  quite  likely  to  be 
of  very  difi'erent  benefit  and  value.  We  may  well  say  that  if  the 
defendant  here  understood  that  he  was  hiring  the  plaintiff's  boy 
from  month  to  month  or  for  only  one  month,  at  the  option  of  the 
plaintiff,  there  would  have  been  no  stipulation  that  he  should  work 
six  months  and  the  wages  would  have  been  less.  It  follows  that  the 
whole  time  is  the  consideration  of  the  promise  to  pa}^,  and  the  bene- 
fits and  value  for  one  month  or  for  four  months  cannot  be  exactly 
apportioned. 

The  entirety  of  such  a  contract  was  virtually  decided  by  this  court 
in  Jennings  v.  Lyon,  39  Wis.  553  ;  s.  c.  20  Am.  57,  where  the  con- 
tract was  for  one  year  and  abandoned  before  the  time,  and  suit  was 
brought  for  the  value  of  the  services  already  rendered.  The  present 
chief  justice  said  in  his  opinion:  "The  general  rule  doubtless  is,  that 
where  a  contract  is  entire,  operating  as  a  condition  precedent,  it  is 
necessary  for  a  party  to  show  full  performance  on  his  part  before  he 
can  maintain  an  action  upon  it."  In  that  case  the  only  exceptions 
to  this  rule  in  such  cases  which  could  be  recognized  were  stated  to 
be  where  full  performance  is  prevented  by  the  act  of  God  or  the 
conduct  of  the  other  party,  and  it  was  held  that  the  plaintiff  could 
not  recover  because  he  had  not  fully  performed  and  was  not  pre- 


TERMl 


EFORE   TERM. 


549 


vented  from  so  doin^  by  a  sickness  which  he  could  not  have  antici- 
pated at  the  time  of  the  making  of  the  contract.  The  recent  case 
of  Bast  V.  Byrne,  51  .Wis.  531 ;  s.  c.  37  ^\m.  841,  is  not  in  conflict 
with  these  views  or  this  decision.     In  that  case  the  entirety  of  the 


contract  was  not  m  question, 

vas  whether  the  defendant  ha 

•fits  entirety  by  rece 

■iter  he  had  lost  di 

i  incidentally  in 

n  "is  not  going 

V,  lurner,"  and  that  i 

there  the  opinion  says,  : 


;uestion 

advan- 

c  plain- 


ice.     It 

•u  in  Liiai  case  that  holding  such  an 

the  opinion  of  the  court  in  Britton 

■ad  been  followed  in  other  cases;  and 

ink  incorrectly,  that  "there  are  strong 

suitable  reasons  to  sustain  the  doctrine  of  the  above  cases."    The 

ntirety  of  the  coa!  '     V  ^tion  in  f: 

This  is  perhaps  s  t-o  the  ^n^- 

e  contracts.      ■ 


>   mquire   w. 

lonth  will  take  this  cise  out  ot  this 
.ract  a  divisible  instead  of  an  entire 
month  to  month,  and  for  four  month 
-'f  service  is  fixed  at  six  men''  - 
xaCt  question,  it  seems  reaS' 
'oned  in  connection  with 
r  the  whole  amount.    If  ' 
determines  the  time  for  whien  ihc 
the  mention  of  the  six  mor''';-'  J 
the  contract  is  not  only  i 
^^.tit  authorities  in  point  :■ 
o^^^  63,  the  contract  wg- 
h.    The  plaintiff  " 
•jt  cause.    It  was 
plied  assumpsit  nor  on  cht 
64,  the  contract  was  to   •. 
hintiff  left  the  defendant 
;id  sued  for  his  wages  a;- 
Mct  was  entire  for  six  n- 
'' ■       -.p.til  that  time  I 
;r  month  wa 
:o  tur  the  whole 
'.ct  was  to  work 
■onth,  and  plaintiff  left  oejcn 
•cover  nothing  either  up..::i  ;•■ 
'  is  needless  to  pursue  the  q  ■ 
liie  plaintiff  could  not  recover,  ^1.-= 
been  eiven.  ?.s  well  as  the  others. 


general  rule  and  make  the  con- 
one,  and  allow  a  recovery  from 
s,  as  in  this  case,  when  the  time 
^"ithout  authorities  upon  this 
at  the  month  is  only  men- 
■1  to  determine  the  rate 
^3  mention  o^  the  month 
3  bound  xn 

seless,  z  ...  ''f 

he  other,  b 
In  Lan  • 
year  at 


Ix'it'.  sides,     ihe  ci> 

.  Ui    Uk. 

i.er,  in  the 

■'.:•:.• -e  of  any  agTt 

contra! 

:  condition 

;it  to  the  ful 

part  01 

lie  other." 

^  .. .   ;.rinciple  upo^ 

fule  is  f 

)e  that  as 

th€  contract  is  fou. 

considc 

upon  the 

entire  perforninr   - 

'>m  any 

•   vviiolly  per- 

formed,  the  cas 

ot  arise. 

will  not  make 

provision  for  e^ 

which  t'. 

'     ted  to 

fortify  them?eh 

Cont,  ^: 

ide  by 

tiie  author  ; 

-  for  ser" 

iiOic  are  cited 

numerous  .v 

vous  to  1 

-  re — to  sustain 

it.   The  text  pr 

if  a  par' 

Lirk  for  a  year 

for  th€  certain 

id  before 

!...■ 

-.          .V      j/J      i       < 

..un  of  the  year 

abandon  such  a? 

,!L  the  consent 

Of'tbt 

other  party,  he 

cannot  recover 

1  meruit." 

Stark  V. 

Parker;  2  Pick. 

26"/ ;  13   \m.  1 

!v  Other  auth 

nrities 

are  cited  to  the 

SS; ' 

bow 

a  cc 

"  r  service  such 

as 

■  1  canno 

hin  that  class 

of 

of 

which 

a  recovery  of  a 

from  t 

whole 
fits  an 
apportioned. 


The 


tv 


chiti  jU;-li' 
where  a  cc 
necessary  for  a  pan 
can  maintain  an  acLi„ 
to  this  rule  in  such  car 
be  where  full  perform, 
conduct  of  the  other  p. 
not  recover  because  he  ha 


rni  rj.ms  atx")ve  stated.    In 

ted  by  the  month, 

---'ory,  if  not  es- 

1  full  perform- 

i..e  ot  service  is,  if  not 

.  ;t  of  the  consideration 

auracL  ij>  liOt  an  apportionable  one, 

i.e  :  ,;.v  ,  :,  1  are  quite  likely  to  be 

/  well  say  that  if  the 

'  'T  the  plaintiff's  boy 

L  the  option  of  the 

•at  he  should  work 

Tt  follows  that  the 

and  the  bene- 

iot  be  exactly 

.  this  court 

'0  the  con- 

,jid  suit  was 

'.    The  present 

■  ss  is,  that 

-'dent,  it  is 

tils  part  before  he 

!ie  only  exceptions 

7.cd  were  stated  to 

act  of  God  or  the 

tlie  plaintiff  could 

iied  and  was  not  pre- 


TERMINATION    BEFORE   TERM.  549 

vented  from  so  doing  by  a  sickness  which  he  could  not  have  antici- 
pated at  the  time  of  the  making  of  the  contract.  The  recent  case 
of  Bast  V.  Byrne,  51  Wis.  531 ;  s.  c.  37  Am.  841,  is  not  in  conflict 
with  these  views  or  this  decision.  In  that  case  the  entirety  of  the 
contract  was  not  in  question,  but  conceded,  and  the  only  question 
was  whether  the  defendant  had  not  waived  his  right  to  take  advan- 
tage of  its  entirety  by  receiving  back  into  his  employment  the  plain- 
tiff, after  he  had  lost  during  the  year  several  days  by  absence.  It 
is  said  incidentally  in  the  opinion  in  that  case  that  holding  such  an 
opinion  "is  not  going  so  far  as  the  opinion  of  the  court  in  Britton 
V.  Turner,"  and  that  that  case  had  been  followed  in  other  cases ;  and 
there  the  opinion  says,  and  I  think  incorrectly,  that  "there  are  strong 
equitable  reasons  to  sustain  the  doctrine  of  the  above  cases."  The 
entirety  of  the  contract  is  the  only  question  in  this  case. 

This  is  perhaps  more  than  sufficient  as  to  the  general  rule  of  serv- 
ice contracts,  when  the  time  of  service  is  fixed,  and  it  only  remains 
to  inquire  whether  the  rate  of  compensation  being  fixed  by  the 
month  will  take  this  case  out  of  this  general  rule  and  make  the  con- 
tract a  divisible  instead  of  an  entire  one,  and  allow  a  recovery  from 
month  to  month,  and  for  four  months,  as  in  this  case,  when  the  time 
of  service  is  fixed  at  six  months.  Without  authorities  upon  this 
exact  question,  it  seems  reasonable  that  the  month  is  only  men- 
tioned in  connection  with  the  compensation  to  determine  the  rate 
or  the  whole  amount.  If  otherwise,  and  this  mention  of  the  month 
determines  the  time  for  which  the  plaintiff  is  bound  to  service,  then 
the  mention  of  the  six  months'  time  was  useless,  and  that  part  of 
the  contract  is  not  only  contradictory  to  the  other,  but  nugatory. 
But  authorities  in  point  are  not  wanting.  In  Lantry  v.  Parks,  8 
Cow.  63,  the  contract  was  to  work  for  one  year  at  ten  dollars  per 
month.  The  plaintiff  worked  ten  months  and  a  half,  and  then  left 
without  cause.  It  was  held  that  he  could  neither  recover  on  an  im- 
plied assumpsit  nor  on  the  contract.  In  Badgley  v.  Heald,  4  Gilm. 
64,  the  contract  was  to  work  six  months  at  $8  per  month.  The 
plaintiff  left  the  defendant's  employment  at  the  end  of  three  months, 
and  sued  for  his  wages  as  by  the  month.  It  was  held  that  the  con- 
tract was  entire  for  six  months,  and  that  the  plaintiff  could  collect 
nothing  until  that  time  had  expired  and  he  had  fully  performed,  and 
that  $8  per  month  was  the  same  as  if  the  contract  had  stipulated 
for  $48  for  the  whole  time.  In  Hansell  v.  Erickson,  28  111.  257,  the 
contract  was  to  work  for  a  certain  number  of  months  at  $15  per 
month,  and  plaintiff  left  before  that  time.  It  was  held  that  he  could 
recover  nothing  either  upon  a  quantum  meruit  or  on  the  contract. 
It  is  needless  to  pursue  the  question  further.  The  instruction  that 
the  plaintiff  could  not  recover,  asked  by  the  defendant,  should  have 
been  given,  as  well  as  the  others,  to  the  same  effect.  On  the  testi- 
mony of  the  plaintiff  and  the  son  he  certainly  cannot  recover  in  this 
action,  unless  he  show  in  contradiction  of  that  testimony  already 


550  DUTIES    OF    PRINCIPAL   TO   AGENT. 

given  that  the  son  left  the  service  of  the  defendant,  not  because  he 
refused  to  pay  him  from  month  to  month,  but  by  the  fault  of  the 
defendant  in  some  other  way,  or  by  the  act  of  God,  and  by  such  act 
of  God  as  the  plaintiff  could  not  have  reasonably  anticipated  when 
he  entered  into  the  contract. 

By  the  Court. — The  judgment  of  the  county  court  is  reversed, 
and  the  cause  remanded  for  a  new  trial  in  accordance  with  this  opin- 
ion.^ 


YERRINGTON  v.  GREENE  and  Another. 
1863.     Supreme  Court  of  Rhode  Island.     7  R.  I.  589. 

Assumpsit  against  the  defendants,  as  administrators  on  the  estate 
of  William  W.  Keach,  for  the  recovery  of  damages  for  the  breach  of 
a  contract  by  which  the  said  Keach  agreed  to  employ  the  plaintiff, 
at  a  salary,  for  three  years,  in  his  business. 

At  the  trial  of  the  case,  under  the  general  issue,  at  the  March 
term  of  this  court,  1863,  before  the  chief  justice,  with  a  jury,  it  was 
proved  by  letters  interchanged  between  the  plaintiff,  who  then  re- 
sided in  Boston,  and  the  intestate,  who  was  a  manufacturing  jeweler, 
in  Providence,  that  on  the  19th  day  of  March,  i860,  the  former 
agreed  to  serve  the  intestate,  and  the  latter  agreed  to  employ  the 
plaintiff,  as  clerk  and  salesman,  having  charge  of  the  intestate's 
office,  or  place  of  sale,  in  New  York,  and  as  agent  in  his  business  in 
making  occasional  trips  for  him  to  Philadelphia  for  the  term  of  three 
years  from  the  first  day  of  April,  i860,  or  as  soon  thereafter  as  the 
plaintiff  could  obtain  a  release  from  his  employment  in  Boston,  at  a 
salary  of  twelve  hundred  dollars  for  the  first  year,  of  thirteen  hun- 
dred dollars  for  the  second  year,  and  of  fifteen  hundred  dollars  for 
the  third  year ;  that  on  the  sixteenth  day  of  April,  i860,  the  plaintiff 
entered  into  the  service  of  the  intestate,  under  this  contract,  and 
continued  to  serve  him  under  it  until  the  first  day  of  April,  1861, 
when  the  said  Keach  died ;  that  the  defendants,  as  administrators  of 
said  Keach,  continued  to  employ  the  plaintiff,  at  the  stipulated  salary, 
until  the  sixteenth  day  of  June,  1861,  when,  having  discontinued  the 
office  in  New  York,  and  removed  what  goods  v^^ere  there  to  Provi- 

^  In  some  jurisdictions  it  is  held  that  although  the  contract  is  entire,  and  the 
agent  or  servant  is  at  fault,  yet  if  the  principal  has  received  some  benefit  from 
the  service  for  which  in  equity  and  good  conscience  he  ought  to  pay,  he  will 
be  held  liable  for  the  value  of  the  services.  In  such  cases,  however,  the  dam- 
ages occasioned  by  the  abandonment  will  be  deducted.  See  Castlin  v.  Weeks, 
2  Ind.  App.  222;  Wolf  V.  Gerr,  43  la.  339;  Parcell  v.  McComber,  11  Neb. 
209.    Compare  Allen  v.  McKibbin,  5  Mich.  449. 


I 


•^noflipr   '■'lace  of   ?=?.IP,   t!. 


in  said 


ors  of  K 


;s  state  o. 
uh  of  Keach  ter^ 
.  _.  ^    -Y  of  damages 
istrators,  for  their 
"  '-rds ;  whereupon, 
'  dants,  the  plain: 

a  new  trial,  on  ■ . 

Ames,  C.  J.— "ft 
liian  from  his 
rersonal  repre:^ 

his  estate.    An  ^ 
-v-ih  the  civil  and  .:.....        ,., 
formance  depends  upon  tlie  con 
or  thing,  a  condition  is  implied  " 
arising  from  the  peri  shine  '~'^  ^ 
•nance. 
er  of  th- 
contract,  it  is  , 

of  the  continue  .  - 

books  afford  many  illustrat 
ing  contracts,  de  cerio  corp^ 
is,  in  furtherance  of  the  pi 
ties.     The  most  oh--" 
of  marriage  bcf^o-e 
of  an  author  c 
■And  delivery  Oi 

ith  of  a  certain  slave  ; 

I  to  be  redelivered,  b.  :■ 

!  the  death  of  a  master  < 


"tf^A  the  jur 

%  and  t; 


the  plain' 


■  m  iLL\',  in  :• 
♦^h^.t  de?»i-h 


equally  well  established  ai 
n  contracts  in  which  per- 
istence  of  a  certain  person 
•-'■■'■'  -f  performance 
dl  excuse  the 


ia:c  ^ 
father 


.    The  c 


har  the  son 
to  pay  hin. 
mt  in  some 

as  the  ::''  - 
red  into  : 
ijv  THE  Cot  ; 
and  the  cause  r: 

ion,' 


l)ecause  he 
:   alt  of  the 

'.'  such  act 
.'iMted  whe- 


•>DE  iSL/ 


589. 


on  the  estatp 


a;. 

ou.    ,     . 
making  oc' 
years  frcn' 
plainliiT  cc>   ' 

Set  ' 

tilt  thiidi  yeai  ; 
entered  into  tl; 
continued  to  se 


office  tn  New  "*/ 


lustice,  ry,  it  was 

'        '  v.no  then  re- 

arine  jeweler, 

iS6o,  V'  -r 

.ed^to  t.  :: 

of  the  inu 

hi  his  busir.:. 

i  the  term  of  three 
•'■?reafter  as  the 
•\  Boston,  at  a 
'  hun- 
ts for 
lintiff 
•-,  and 
:)rii,  1861, 
....  .i.,.,,,trators  of 
c;  stipulated  salary, 
iinued  the 
to  Provi- 


tn. 

be 


contract  is  entire. 


See  Castlin  v. 

Mi  I   r.nihor.     ' 


Hipare  Ai 


.e  will 


TERMINATION    BEFORE    TERM.  55^ 

dence,  where  Keach  had  another  place  of  sale,  they  declined  longer 
to  employ  the  plaintiff,  or  to  pay  him  his  salary,  though  from  that 
time  to  the  date  of  the  writ  he  had  been  ready  and  willing  to  serve 
in  said  business,  and  had  tendered  his  services  in  it  to  them,  and  had 
been  unable  to  procure  other  employment ;  that  the  defendants,  as 
administrators  of  Keach,  wound  up  his  business  by  selling  the  goods 
removed  from  New  York,  with  other  goods  of  his,  at  Providence, 
and  had  been  allowed  by  the  court  of  probate,  for  their  services  as 
administrators,  the  si:m  of  three  thousand  dollars. 

Upon  this  state  of  facts,  the  chief  justice  instructed  the  jury  that 
the  death  of  Keach  terminated  this  contract  of  service,  and  that  no 
recovery  of  damages  could  be  had  of  the  defendants,  as  his  admin- 
istrators, for  their  refusal  to  employ  the  plaintiff  under  it  after- 
wards ;  whereupon,  the  jury  having  returned  a  verdict  for  the  de- 
fendants, the  plaintiff,  having  duly  excepted  thereto,  now  moved 
for  a  new  trial,  on  the  ground  of  error  in  law  in  said  instruction. 

Ames,  C.  J. — It  is  in  general  true  that  death  does  not  absolve  a 
man  from  his  contracts ;  but  that  they  must  be  performed  by  his 
personal  representatives,  or  their  non-performance  compensated  out 
of  his  estate.  An  exception  to  this  rule,  equally  well  established  at 
both  the  civil  and  common  law,  is  that  in  contracts  in  which  per- 
formance depends  upon  the  continued  existence  of  a  certain  person 
or  thing,  a  condition  is  implied  that  the  impossibility  of  performance 
arising  from  the  perishing  of  the  person  or  thing  shall  excuse  the 
performance.  The  implication  arises  in  spite  of  the  unqualified 
character  of  the  promissory  words,  because,  from  the  nature  of  the 
contract,  it  is  apparent  that  the  parties  contracted  upon  the  basis 
of  the  continued  existence  of  the  particular  person  or  chattel.  The 
books  afford  many  illustrations  of  this  reasonable  mode  of  constru- 
ing contracts,  de  certo  corpora,  as  the  civil  law  designation  of  them 
is,  in  furtherance  of  the  presumed  and  probable  intent  of  the  par- 
ties. The  most  obvious  cases  are  the  death  of  a  party  to  a  contract 
of  marriage  before  the  time  fixed  by  it  for  the  marriage ;  the  death 
of  an  author  or  artist  before  the  time  contracted  for  the  finishing 
and  delivery  of  the  book,  picture,  statue,  or  other  work  of  art ;  the 
death  of  a  certain  slave  promised  to  be  delivered,  or  of  a  horse  prom- 
ised to  be  redelivered,  before  the  day  set  for  delivery  or  redelivery  ; 
and  the  death  of  a  master  or  apprentice  before  the  expiration  of  the 
term  of  service  limited  in  the  indentures.  The  bodily  disability  from 
supervening  illness,  as  of  an  artist,  from  blindness,  to  paint  the  pic- 
ture contracted  for,  or  of  a  scholar  to  receive  the  instruction  his 
father  had  stipulated  should  be  received  and  paid  for,  has  been  held, 
for  the  like  reason,  to  excuse  each  from  the  performance  of  his  con- 
tract. Hall  V.  Wright,  i  EL,  B.  &  E.  746;  Stewart  v.  Loring,  5  Al- 
len 306.  The  cases  in  support  of  these,  and  other  illustrations  of  the 
exception  to  the  general  rule,  are  set  down  in  the  defendants'  brief, 
and  it  is  unnecessary  to  repeat  them.    Both  at  the  civil  and  the  com- 


552  DUTIES   OF    PRINCIPAL   TO   AGENT. 

men  law  it  is  necessary  that  the  party  who  would  avail  himself  of 
this  excuse  for  non-performance  of  the  contract  should  be  without 
fault  in  the  matter  upon  which  he  relies  as  an  excuse.  The  latest 
and  most  instructive  case  upon  this  subject,  so  far  as  the  discussion 
of  the  principle  of  decision  is  concerned,  is  that  of  Taylor  v.  Cald- 
well, decided  by  the  queen's  bench  in  May  last,  8  L.  T.,  N.  S.,  356. 
In  that  case  it  was  held  that  the  parties  were  discharged  from  a  con- 
tract to  let  a  music  hall  for  four  specified  days  for  a  series  of  con- 
certs, by  the  accidental  destruction  of  the  hall  by  fire  before  the  first 
day  arrived.  The  full  and  lucid  exposition  by  Mr.  Justice  Black- 
burn, who  delivered  the  opinion  of  the  court,  of  the  prior  cases,  and 
of  the  principle  upon  which  they  had  been  decided,  leaves  nothing 
further  to  be  desired  upon  this  subject. 

Does  the  case  at  bar  fall  within  the  general  rule  or  within  the  ex- 
ception we  have  been  considering?  This  must  depend  upon  the  na- 
ture of  the  contract,  whether  one  requiring  the  continuing  exist- 
ence of  the  employer,  Keach,  for  performance  on  his  part,  or  one 
which  could,  according  to  its  spirit  and  meaning,  be  performed  by 
the  defendants,  his  administrators.  The  contract  was  to  employ  the 
plaintiff  as  clerk  and  agent  of  the  intestate  in  his  business  in  New 
York  and  Philadelphia ;  and  it  seems  to  us  undoubted  that  the  con- 
tinued existence  of  both  parties  to  the  contract  for  the  whole  stipu- 
lated term  was  the  basis  upon  which  the  contract  proceeded,  and  if 
called  to  their  attention  at  the  time  of  contract,  must  have  been  con- 
templated as  such  by  them.  The  death  of  the  plaintiff  within  the 
three  years  would  certainly  have  been  a  legal  excuse  from  the  fur- 
ther performance  of  his  contract ;  since  it  was  an  employment  of 
confidence  and  skill,  the  duties  of  which,  in  the  spirit  of  the  contract, 
could  be  fulfilled  by  him  alone.  If  this  be  the  law  in  application  to  a 
covenant  for  ordinary  service  (Shep.  Touch.  180),  how  much  more 
in  application  to  a  contract  for  service  of  such  confidence  and  skill 
as  that  of  a  clerk  and  agent  for  sale.  On  the  other  hand,  this  em- 
ployment could  continue  no  longer  than  the  business  in  which  the 
employer  was  engaged  and  the  plaintiff  retained.  The  intestate, 
when  living,  could  by  the  contract  have  required  the  services  of  the 
plaintiff  in  no  other  business  than  that  in  which  he  had  engaged  him, 
and  with  no  other  person  than  himself.  It  would  seem,  then,  neces- 
sarily to  follow,  that  when  the  death  of  the  employer  put  a  stop  to 
this  business,  and  left  no  legal  right  over  it  in  the  administrators,  ex- 
cept to  close  it  up  with  the  least  loss  to  the  estate  of  their  decedent, 
they  were,  by  the  contract,  bound  no  longer  to  employ  the  plaintiff, 
any  more  than  he  to  serve  them.  The  act  of  God  had  taken  away  the 
master  and  principal, — the  law  had  revoked  his  agency,  and  stopped 
the  business  to  which  alone  his  contract  bound  him, — and  if  he 
would  serve  the  administrators  in  winding  up  the  estate,  it  must  be 
under  a  new  contract  with  them,  and  under  renewed  powers  granted 
by  them.    Anv  other  result  than  that  this  contract  of  service  was 


.  or  that 
CO  serve 
thev  V  t 


inaintain  ir.  ju'^t'/ 
ihis  moti'"-^  •  ■  •  •  ' 
t!ie  verdi 


553 
the  em- 


Appeal  from 
-" -'mon  counts  ot  t; 

le,  the  testator,  : 
iacts  averred  in  *>' 
the  work  was  do 
■n  hi'  lifetime,  and  c. 
on  lii?  part.     TV'.c-  •:' 


vv,  York.    20  N.  Y.  197. 
riie  complaint  contained  the 


cereei  intr*  a  if.  .11  act  in  w 

".?.h'!(V)iV(ii; :  ■  /;;  of  ;in  ; 


oaid.  the  rt 


lurnish 

,■••1 .    1 .  , 


iiimseli  ot 

■e  without 

lauk  m  tne  nu 

.'  latest 

and  most  insti  i 

.ussion 

of  the  principle 

.  Cald- 

well,  decided  b>   . 

-    -.,  356. 

ui  that  case  it  was 

rom  a  con- 

tract  to  let  a  ir 

•  )f  con- 

certs,  by  the  a 

lie  first 

day  arrived. 

iicc  Black- 

burn,  who  dc]. 

i  cases,  and 

of  the  prij 

■  y  had  ' 

leaves  nothing 

further  f  , 

'.^;?ct. 

Dr.: 

e  gener 

within  the  cx- 

ceptt<j 

l  upon  the  na- 

tV.Tf^    ■ 

itinuing  exist- 

irt,  or  one 

1  formed  by 

i 

race  was  10  employ  the 

• 

In  I'i;  business  in"  New 

i  that  the  con- 

,1  ...  ;  ijie  whole  stipu- 

itract  proceeded,  and  ii 

have  been  con- 

uiff  within  the 

d  excuse  from  the  fur- 

.  rt-;  an  employment  of 

irit  of  the  contract, 

'"  application  to  a 

low  much  more 

m  app  ;!<-:■■ 

idence  and  skill 

a-  ll-ial.  of 

hand,  this  em- 

p!oyn:ient 

■      ,'       ^he 

employer 

■     lC, 

•  lien  livii 

-of  the 

■ '.  i .- ;  •  IT  i  • 

^.,.,::;d  him 
■len,  nece- 
■X  a  stop  to 
■rators,  ex- 
V\^\v  decedent, 
>y  the  plaintiff". 

Man  he  : 

•   i-.rii;'"'. 

^aken  away  the 
'  ^y,  and  stopped 

!;■ 

.  m,— and  if  he 

ate,  it  must  be 

powers  granted 

oiuract  of  service  was 

TERMINATION    BEFORE    TERM.  553 

upon  the  implied  condition  that  the  employer,  as  well  as  the  em- 
ployed, was  to  continue  to  live  during-  the  stipulated  term  of  employ- 
ment, would  involve  us  in  the  strange  conclusion  that  the  administra- 
tors might  go  on  with  the  business  of  their  intestate,  in  which  the 
plaintiff  must  continue  with  powers  unrevoked  by  the  death  of  his 
principal,  or  that  he,  with  new  powers  from  them,  was  bound  by  the 
contract  to  serve  them  as  new  masters,  and  in  a  different  service, 
and  that  they  were  bound  to  grant  him  such  powers,  and  employ 
him  for  the  stipulated  time  in  such  service.  The  novelty  of  such  a 
claim,  and  the  contradiction  of  well-settled  principles  necessary  to 
maintain  it,  justify  the  ruling  of  the  judge  who  tried  the  cause;  and 
this  motion  must  be  dismissed  wdth  costs,  and  judgment  entered  upon 
the  verdict.^ 


WOLFE  V.  HOWES. 
1859.     Court  of  Appeals  of  New  York.     20  N.  Y.  197. 

Appeal  from  the  supreme  court.  The  complaint  contained  the 
common  counts  only  for  work,  labor  and  services  done  by  Nicholas 
Vache,  the  testator,  for  the  defendants.  The  defendants  denied  the 
facts  averred  in  the  complaint,  and  set  up  as  a  separate  defense  that 
the  work  was  done  under  a  special  contract  not  performed  by  Vache 
in  his  lifetime,  and  claimed  damages  for  the  breach  of  the  contract 
on  his  part.  The  defendants  had  for  nine  years  previous  to  May, 
1852,  been  engaged  as  partners  in  carrying  on  the  business  of  mak- 
ing glass  at  the  Dunbarton  glass-works,  of  which  they  were  the  pro- 
prietors, at  Verona  in  the  county  of  Oneida.  The  testator  was  in 
the  employment  of  the  defendants  at  their  glass-works  as  a  pot- 
maker.  On  the  1st  of  May,  1852,  the  defendants  and  testator  en- 
tered into  a  contract  in  writing  as  follows : 

"Memorandum  of  an  agreement  made  this  day.  Howes,  Scofield 
&  Co.  [defendants],  of  the  first  part,  and  Nicholas  Vache  of  the 
second  part,  witnesseth,  that  for  and  in  consideration  of  $i  to  me 
in  hand  paid,  the  receipt  whereof  I  do  acknowledge,  do  agree  on 
my  part  to  do  all  the  pot-room  work  for  said  parties  of  the  first 
part,  in  a  good  and  workmanlike  manner,  for  one  year  from  the  date 
of  this  contract,  at  the  price  of  $40  per  month,  $10  of  which  is  to  be 
paid  me  monthly.  Dunbarton,  May  ist,  1852.  If  extra  help  is  needed, 
we  agree  to  furnish  it.  (Signed)     Nicholas  Vache." 

The  trial  was  before  a  referee,  who  found  the  following  facts: 

^  Insolvency  of  the  principal  is  no  defense  to  an  action  brought  by  the  agent 
for  failure  to  employ  him  for  a  specified  term.  Lewis  v.  Atlas  Mutual  Ins. 
Co.,  61  Mo.  534. 


554  DUTIES   OF    PRINCIPAL   TO   AGENT. 

The  plaintiff's  testator  entered  upon  the  performance  of  the  con- 
tract, and  continued  to  fulfill  it  in  all  respects  according  to  the  terms 
thereof,  in  a  good  and  workmanlike  manner  from  the  ist  day  of 
May,  1852,  to  the  7th  day  of  December,  following,  when  Vache  be- 
came sick  and  unwell  and  so  continued  for  a  long  time,  and  at  length 
died.  By  reason  of  said  sickness,  and  without  fault  on  his  part,  he 
became  and  was  incapable  of  further  performance  of  his  said  con- 
tract. 

He  held  as  matter  of  law,  that  by  reason  of  his  sickness  and  death, 
V^ache  was  released  and  discharged  from  the  further  performance 
of  his  contract,  and  his  executor  was  entitled  to  recover  a  reasonable 
compensation  for  the  services  of  his  testator. 

That  such  reasonable  compensation  was  the  sum  of  $40  per  month, 
for  the  time  of  the  testator's  service ;  and  after  deducting  certain 
payments  made  to  him  from  time  to  time,  there  was  a  balance  due  of 
$159.28,  for  which  he  ordered  judgment  with  costs.  The  defendants 
took  several  exceptions  to  the  finding  of  the  facts  and  the  decisions 
of  the  referee  on  the  questions  of  law,  and  particularly  to  the  con- 
clusion that  Vache  was  released  and  discharged  from  further  per- 
formance of  the  contract,  and  that  the  plaintiff  was  entitled  to  re- 
cover a  reasonable  compensation  for  the  services  rendered  by  his 
testator  for  the  defendants,  and  in  not  allowing  a  sufficient  amount 
of  set-O'ff.  The  supreme  court,  at  general  term  in  the  fifth  district, 
having  affirmed  the  judgment  entered  on  the  report  of  the  referee, 
the  defendants  appealed  to  this  court. 

Allen,  J. — There  can  be  little  doubt,  I  think,  that  the  contract 
with  Vache  contemplated  his  personal  services.  This  is  evident,  both 
from  the  nature  of  the  business  and  the  amount  of  compensation 
agreed  to  be  paid  him.  It  is  also  manifest  from  the  evidence  on  both 
sides.  The  business  of  pot-making  required  skill  and  experience. 
It  was  an  art  to  be  acquired  after  much  study  and  labor,  and  which 
Vache  seemed  to  have  accomplished.  The  execution  of  the  work 
required  his  constant  and  personal  supervision  and  labor.  No  com- 
mon laborer  could  have  supplied  his  place,  and  hence  the  amount  of 
his  wages  was  largely  increased  beyond  that  of  such  a  hand.  The 
extra  help  mentioned  in  the  contract  had  reference  to  the  breaking 
away  of  the  flattening,  so  called,  and  to  its  repair,  and  nothing  else. 
The  whole  testimony  shows  this,  as  well  as  that  the  personal  serv- 
ices of  Vache  were  contracted  for.  The  referee  well  found  and 
court  below  well  decided  that  such  were  the  temis  of  the  contract. 

2.  The  question  is  then  presented  whether  the  executor  of  a  me- 
chanic, who  has  contracted  to  work  for  a  definite  period,  and  who 
enters  upon  his  labor  under  the  contract,  and  continues  in  its  faith- 
ful performance  for  a  portion  of  the  time,  until  prevented  by  sick- 
ness and  death,  and  without  any  fault  on  his  part,  from  its  final 
completion,  can  recover  for  the  work  and  services  thus  performed 
by  his  testator. 


:  being  - 

■  I  .lie  ccp-r"'' 
las  unci' 
'   nd   aiv\    ,;'    '• 
ict  is  entire. 


:ounsel, 


'A'as  owing  to  the  la' 
cover:    McMi''-'!  - 
Reab  v.  Moo; 
Am.  Dec.  36: 
^^y)  :  Langtv 

ed  that  nul 
with  such  - 
.isks  for  in  the  prt 

Some  >'f   ■"''■■ 
doctrine  • 

Appleby  v.  a,  ;.  _-    - 
some  others.   These  <    ^t 
able  cons^ 
<'!'iitler  y. 

■'    WOldillg    Ol    llic    V-' 

^^      ment,  b_v  which  the 
.?gh  rate  of  wages,  underr 


are. 


ndee:!.   rather  intimate 

v.aar!.  >/; 

■man,  2  lu..   ^-k;'  "i^d 

■  of  the  same  reason- 

.  n  all  contracts.   That  of 

in  this,  th^.t  bv  ''be  ne- 


pril)C:p:. 

i  is  the 

\^  juhns.  i.fj^  (7  i-Vm. 

'tartie.'- '■*    The  law  gi- 

ince.  in  the 

;  oi.Uci  .should  be  bill 

avoidable  sickness  or 

''    !.  that  each  «hou. 

of  the  rontrai^t 


nie  and 


■-•1    llie  con- 

■j  rlie  terms 

day  of 

ache  bc- 

V  length 

'-,  he 

:on- 


'■■      ■..     CL/iltfarr     :■ 

i/ensatiop 
(hat  such  < 
for  the  timt- 


ful 


ho  has  corn 

■^  his  labor 

nee  for  . 


>:ne?s  ar-d  denth, 


ice :  an  tine:  certain 

'     ~      •  '.^_  (..f 

ilic  decisions 
to  the  con- 
further  per- 
,    ,  ,..    >..ititled  to  re- 
ices  rendered  by  his 
'  amount 
district, 
he  rcpoit  of  ilic  referee, 

•  ik,  that  the  contract 

"fl-j ;  ;c:  evident,  both 

-  omi>ensation 

'^vulence  on  both 

.  and  experience. 

'    r,  and  which 

of  the  wv'ik 

>r.    No  com- 

.  '.  ni'iGunt  of 

The 

:  dking 

iug-  else. 

ai  serv- 

ind  and 


period,  and  who 

-1  ipk    ill    if--    fi^ith- 

■ck- 


I 


TERMINATION    BEFORE    TERM.  555 

The  broad  ground  is  taken  on  the  part  of  the  defendants'  counsel, 
that  no  recovery  can  be  had  under  such  circumstances ;  that  full  per- 
formance was  a  condition  precedent  to  the  right  of  recovery,  the 
agreement  being  general  and  absolute  in  its  terms,  and  not  provid- 
ing for  the  contingency  of  sickness  or  death. 

It  has  undoubtedly  been  long  settled  as  a  general  principle,  both 
in  England  and  in  this  as  well  in  most  other  states,  that  where 
the  contract  is  entire,  nothing  but  the  default  of  the  defendants  will 
excuse  performance.  It  will  be  found,  however,  on  an  examination 
of  the  leading  cases  in  our  own  courts,  that  the  failure  to  perform 
was  owing  to  the  fault  or  negligence  of  the  party  seeking  to  re- 
cover: McMillan  v.  Vanderlip,  12  Johns.  165  (7  Am.  Dec.  299); 
Reab  v.  Moor,  19  id.  337;  Jennings  v.  Camp.  13  id.  94;  id.  390  (7 
Am.  Dec.  367)  ;  Sickels  v.  Pattison,  14  Wend.  257  (28  Am.  Dec. 
527)  ;  Langtry  v.  Parks,  8  Cow.  63,  and  various  other  cases.  It  is 
believed  that  not  a  single  case  can  be  found  where  the  rule  is  laid 
down  with  such  strictness  and  severity  as  the  defendants'  counsel 
asks  for  in  the  present  case. 

Some  of  the  English  cases  do,  indeed,  rather  intimate  such  a 
doctrine :  Cutler  v.  Powell,  6  T.  R.  320 ;  Hadley  v.  Clarke,  8  id.  267 ; 
Appleby  v.  Dods,  8  East  300;  Hulle  v.  Heightman,  2  id.  145,  and 
some  others.  These  cases  are,  however,  capable  of  the  same  reason- 
able construction  which  the  law  confers  upon  all  contracts.  That  of 
Cutler  V.  Powell,  supra,  is  distinguishable  in  this,  that  by  the  pe- 
culiar wording  of  the  contract  it  was  converted  into  a  wagering 
agreement,  by  which  the  party,  in  consideration  of  an  unusually 
high  rate  of  wages,  undertook  to  insure  his  own  life,  and  to  render  at 
all  hazards  his  personal  services  during  the  voyage,  before  the  com- 
pletion of  which  he  died. 

The  great  principle  upon  which  the  adjudged  cases  in  all  the 
courts  is  based  is  the  question,  as  stated  in  McMillan  v.  Vanderlip, 
12  Johns.  165  (7  Am.  Dec.  299),  What  was  the  real  intention  of  the 
parties?  The  law  gives  a  reasonable  construction  to  all  contracts. 
For  instance,  in  the  present  case,  did  the  parties  intend  that  the 
contract  should  be  binding  upon  the  plaintiff's  testator  in  case  of  un- 
avoidable sickness  or  death,  or  did  they  intend,  and  is  it  to  be  im- 
plied, that  each  should  perform,  as  to  the  other,  according  to  the 
terms  of  the  contract,  Deo  volente?  It  appears  that  a  fair  and  legal 
interpretation  would  answer  this  question  in  the  affirmative,  and 
that  such  a  provision  must  be  understood  as  written  in  the  contract. 
Nor  is  this  principle  wanting  sanction  either  by  elementary  writers 
or  adjudged  cases.  "Where  the  performance  of  a  condition  is  pre- 
vented by  the  act  of  God,  *  *'  *  it  is  excused :"  Cru.  Dig.,  tit. 
Condition,  41,  43 ;  3  Kent's  Com.  471  ;  2  id.  509;  Madeiros  v.  Hill,  8 
Bing.  231.  In  Mounsey  v.  Drake,  10  Johns.  2"/,  29,  the  court  say: 
"Performance  must  be  shown,  unless  prevented  by  the  act  of  God  or 
of  the  law:"    i  Shep.  Touch.  180;  Gilbert  on  Covenants  472;  Peo- 


556  DUTIES    OF    PRINCIPAL   TO   AGENT, 


pie  V.  Manning,  8  Cow.  297  (18  Am.  Dec.  451)  ;  People  v.  Bartlett, 
3  Hill  (N.  Y.)  570;  Carpenter  v.  Stevens,  12  Wend.  590;  Chit.  Con. 
631  ;  I  Parsons  on  Cont.  524,  and  note;  Fenton  v.  Clark,  11  Vt.  562; 
Fuller  V.  Brown,  1 1  Met.  440. 

There  is  good  reason  for  the  distinction  which  seems  to  obtain  in 
all  cases,  between  the  case  of  a  wilful  or  negligent  violation  of  a 
contract  and  that  where  one  is  prevented  by  the  act  of  God.  In  the 
one  case  the  application  of  the  rule  operates  as  a  punishment  to  the 
person  wantonly  guilty  of  the  breach,  and  tends  to  preserve  the 
contract  inviolable ;  while  in  the  other  its  exception  is  calculated  to 
protect  the  rights  of  the  unfortunate  and  honest  man  who  is  provi- 
dentially and  without  fault  on  his  part  prevented  from  a  full  per- 
formance. There  is  another  reason  for  relaxing  the  rule,  which  is 
applicable  to  the  case  we  are  now  considering.  It  is  well  set  forth 
in  Story  on  Bailments,  §  36,  and  notes,  where  that  learned  jurist, 
after  considering  the  great  number  of  cases  on  this  subject  in  the 
various  courts  of  England  and  this  country,  and  well  observing  that 
they  are  not  at  all  times  in  harmony,  remarks  that  the  true  rule  may 
be  considered  to  be,  "that  where  the  contract  is  for  personal  services 
which  none  but  the  promisor  can  perform,  there  inevitable  accident 
or  the  act  of  God  will  excuse  the  non-performance,  and  enable  the 
party  to  recover  upon  a  quant  nut  meruit.  But  where  the  thing  to  be 
done  or  work  to  be  performed  may  be  done  by  another  person,  then 
all  accidents  are  at  the  risk  of  the  promisor."  In  the  present  case 
the  finding  shows,  and  I  have  already  remarked,  justly,  that  the 
contract  was  personal,  and  that  the  executor  could  not  have  em- 
ployed a  third  person  to  execute  the  contract  on  the  part  of  his  tes- 
tator Vache. 

But  without  pressing  this  point  further,  it  is  sufficient  to  say  that 
it  was  virtually  decided  against  the  defendants  by  this  court,  in  the 
case  of  Jones  v.  Judd,  4  Comst.  411.  It  was  there  decided  that  when 
by  the  terms  of  the  contract  for  work  and  labor,  the  full  price  is  not 
to  be  paid  until  the  completion  of  the  work,  and  that  becomes  im- 
possible by  the  act  of  the  law,  the  contractor  is  entitled  to  recover 
for  the  amount  of  his  labor.  In  that  case  the  work  was  stopped  by 
the  state  officers  in  obedience  to  an  act  of  the  legislature  suspending 
the  work;  and  the  court  held  that  as  the  contractor  was  without 
fault,  he  was  entitled  to  recover.  The  case  of  Mounsey  v.  Drake,  10 
Johns.  27,  was  referred  to  and  approved  of  as  authority  in  favor  of 
the  position;  and  see  Bebee  v.  Johnson,  19  Wend.  502  (32  Am.  Dec. 
518). 

The  conclusion,  then,  is  that  where  the  performance  of  work  and 
labor  is  a  condition  precedent  to  entitle  the  party  to  recover,  a  ful- 
filment must  be  shown;  yet  that  where  performance  is  prevented  or 
rendered  impossible  by  the  sickness  or  death  of  the  party,  a  recovery 
may  be  had  for  the  labor  actually  done.   This  is  not  out  of  harmony 


J 


with  prin'- 
the  ru' 

The 
sary  to  uotice  one  < 

Tt  i;-  insisted  tha; 
•f  the  contra' 
h.'r.-«;  been  alleged  ' 
that  the  plaintilT  i>   ■ 
'light  have  set  uj 
'i^rmance,  and  enti: 
the  complaint  proe. 
the  work  and  lab-r 
cover.    The  defenc 
defense,  and  the  i 
reply.   The  contra^ 
its  chief  conseque; 
damages,  or  to  re;, 
entitled,  though  hi 
some  of  the  cases  a 

Again,  it  is  said  tha 
Jiing,  it  could  be  only 
set-oft'  having  been  fc 
that,  the  defen  ' 
tenable.    The 
per  month;  ten  u' 
This  was  upon  tht 
for  the  whole  time.   This,  ( 
the  plaintiff  was  er*^  '  ■■  ' 
services  of  the  te^ 
'.'.red  by  the  terms  .>r  rn.e 

It  is  further  urged  that 
ants'  damages  ncc^ 
quit.    That  was  a  '^ 
that  the  plaintiff  did  1 
o'  '-ii    si.-Iviiess  ;  he-allo- 
defendants ; 


neces- 


id 


le, 
iff 


;it  CI   t; 
ch  the  [ 
'.  d  qiianium  meruu. 

rift  was  entitled  to  recover  any- 

'  "th,  and  that  the  defendants' 

■e  to  amount  to  more  than 

nt.   This  obj(     '       '    not 

■  0  rate  of  f'  re 


)te  of 


lacL  • 
think 
'  >t  Tit  iiLKji  Lv  lo  uucrjcie. 


I  ei  II  1,11 11  1   li.ti :    ;  i.:i C  v  ',-  .1   .ii 

T's  testator,  and  that  qui; 
by  a 
less : 


n-ig,  6  L. 

/.)  570;' 

ms  on  C 

:^!!  case::;,  bei-u^ccn  • 

VViilUi    ■.  ' 

contract  and  that  h 

evented  ■ 

one  case  the  api  ' 

lie  opera  I 

person  wanton'. 

> reach,  .-: 

contract  'm\ . 

other  it- 

protect  the  1  _.  . .     . 

late  and 

dentially  and  withoi-i 

nis  part  t 

for;-         '     '■■ 
..pi 

in 

untr^ 

it  was 

''  '-e  of  juiu 


amoamt 

inc  stare  ofTi 
the  work : 


Bartleti 
'  hit.  Con. 
:  Vt.  562 

s  to  obtain  in 

'   tion  of  a 

•  1.    In  the 

!it  to  the 

,      serve  the 

calculated  to 

x,v  who  is  provi- 

from  a  full  per- 

rule,  which  is 

veil  set  forth 

arned  jurist, 

-iibject  in  the 

uitry,  anci  well  observing  that 

,  remarks  that  the  true  rule  may 

)ic  contract  is  for  personal  services 

-^rform,  there  inevitable  accident 

n-performance,  and  enable  the 

where  the  thing-  to  be 

■  another  person,  then 

In  the  present  case 

;rked,  justly,  that  the 

•  could  not  have  em- 

■  the  part  of  his  tes- 

'hcient  to  say  that 
this  court,  in  the 

decided  that  when 
c  full  price  is  not 
that  becomes  im- 
.t;+t„/i  i^j  recover 

ropped  by 
.  huspending 
■  was  without 
Urake,  10 
1  favor  of 
Am.  Dec. 


kision,  then, 

;  ;  .  .r  i:   <i  condition  prec 
filnient  must  be  sliown  • 
rendered  impossible 
niav  be  had  for  the  . 


work  and 

u.>  recover,  a  ful- 

:e  is  prevented  or 

1  the  party,  a  recovery 

is  not  out  of  harmony 


TERMINATION    BEFORE    TERM.  557 

with  principle  or  adjudged  cases,  and  is  certainly  in  harmony  with 
the  rules  of  common  honesty  and  strict  justice. 

These  views  dispose  of  the  main  questions  in  the  case.  It  is  neces- 
sary to  notice  one  or  two  of  minor  importance. 

It  is  insisted  that  if  sickness  were  an  excuse  for  the  non-perform- 
ance of  the  contract  on  the  part  of  Vache,  that  such  excuse  should 
have  been  alleged  in  the  complaint,  and  this  not  having  been  done, 
that  the  plaintiff  is  not  entitled  to  recover.  It  is  true  that  the  plaintiff 
might  have  set  up  the  agreement  and  the  excuse  for  its  non-per- 
formance, and  entitle  himself  to  recover  upon  such  a  pleading.  But 
the  complaint  proceeds  upon  a  quantum  meruit;  and  upon  showing 
the  work  and  labor  of  Vache,  the  plaintiff  entitled  himself  to  re- 
cover. The  defendants  set  up  the  special  agreement  as  matter  of 
defense,  and  the  plaintiff's  excuse  was  properly  enough  matter  of 
reply.  The  contract  was  in  fact  discharged  by  the  act  of  God,  and 
its  chief  consequence  was  to  measure  the  amount  of  the  plaintiff's 
damages,  or  to  regulate  the  compensation  to  which  the  plaintiff  was 
entitled,  though  his  remedy  w^as  as  upon  a  quantum  meruit.  So  say 
some  of  the  cases  already  cited. 

Again,  it  is  said  that  if  the  plaintiff  was  entitled  to  recover  any- 
thing, it  could  be  only  ten  dollars  a  month,  and  that  the  defendants' 
set-off  having  been  found  by  the  referee  to  amount  to  more  than 
that,  the  defendants  were  entitled  to  judgment.  This  objection  is  not 
tenable.  The  compensation  was  to  be  at  the  rate  of  forty  dollars 
per  month;  ten  dollars  (a  part)  of  which  was  to  be  paid  monthly. 
This  was  upon  the  supposition  that  the  contract  was  to  be  performed 
for  the  whole  time.  This,  however,  having  been  rendered  impossible, 
the  plaintiff  was  entitled  to  recover,  if  anything,  the  full  value  of  the 
services  of  the  testator,  not  exceeding  the  rate  of  compensation  se- 
cured by  the  temis  of  the  contract. 

It  is  further  urged  that  the  referee  erred  in  not  allowing  defend- 
ants' damages  accruing  to  them  after  Vache  was  sick  and  before  he 
quit.  That  was  a  question  of  fact  entirely  for  the  referee.  He  found 
that  the  plaintiff  did  his  work  well  and  skilfully  down  to  the  time 
of  his  sickness ;  he  allowed  and  deducted  the  whole  amount  of  set-off 
proved  by  defendants ;  and  he  does  not  find  that  the  defendants  sus- 
tained any  damages  by  reason  of  any  defect  in  V^ache's  work  down  to 
the  time  of  his  quitting  in  December,  1852.  With  these  questions  of 
fact  we  cannot  interfere.  The  court  below  sanctioned  the  finding.  I 
think  they  were  fully  warranted  in  so  doing.  At  all  events,  we  are 
not  at  liberty  to  interfere. 

The  judgment  must  be  affirmed. 

Johnson,  C.  J.,  concurred,  observing  that  it  was  material  that  the 
defendants  had  received  actual  benefit  from  the  services  of  the  plain- 
tiff's testator,  and  that  quite  a  different  question  would  be  presented 
by  a  case  where  the  services  actually  rendered  should  prove  value- 
less ;  e.  g.,  if  one  should  be  retained  to  compose  an  original  literary 


558  DUTIES    OF    PRINCIPAL   TO   AGENT, 

work,  and  having  faithfully  employed  himself  in  preparation,  should 
die  without  having  completed  any  work  of  value  to  the  employer. 

CoMSTOCK,  J.,  and  other  judges  concurred  in  this  qualification. 

Judgment  affirmed.^ 


Section  2. — Duty  to  Reimburse  Agent. 

MOORE  V.  APPLETON. 
1855.     Supreme  Court  of  Alabama.     26  Ala.  633. 

Trespass  on  the  case  by  Claiborne  G.  Appleton  against  John 
Moore,  "to  recover  damages  sustained  by  plaintiff,  growing  out  of 
certain  acts  performed  by  plaintiff,  in  the  capacity  of  agent  for  de- 
fendant, in  the  year  1846,  in  dispossessing  and  removing  one  Aaron 
B.  Quinby  from  a  certain  tract  of  land  lying  in  Lawrence  county, 
Alabama,  and  known  as  the  place  on  which  said  defendant  now 
keeps  a  toll-gate;  which  act  of  dispossessing  and  removing  said 
Quinby  was  done  at  the  special  instance  and  request  of  defendant, 
and  while  plaintiff  was  acting  as  his  agent." 

The  declaration  contained  two  counts ;  the  first  alleging,  in  sub- 
stance these  facts :  That  defendant  in  1846,  constituted  and  ap- 
pointed plaintiff  his  agent,  generally  and  specially,  to  do  and  perform 
such  acts  and  things  as  he  might  request  plaintiff  to  do  during  the 
year  of  1846;  that  afterwards,  and  while  plaintiff  was  acting  in  the 
capacity  of  such  agent  for  defendant,  and  at  defendant's  special  in- 
stance and  request,  and  as  such  agent,  "plaintiff  took  possession  of 
certain  goods  and  chattels,  to  wit,"  etc. ;  "which  goods  and  chattels 
defendant  then,  and  before  plaintiff  so  took  possession  of  them  as 
such  agent,  stated  and  represented  to  plaintiff,  were  the  property  of 
said  defendant,  and  to  the  possession  of  which  defendant  represented 
to  plaintiff  that  he  (defendant)  was  then  entitled,  which  statements 
and  representations  plaintiff"  then  believed  and  acted  on  in  so  taking 
possession  of  said  goods  and  chattels ;"  that  afterwards,  in  March, 
1847,  ^^^  Aaron  B.  Quinby  instituted  suit  against  plaintiff  and  de- 
fendant, in  the  circuit  court  of  Lawrence,  to  recover  damages  sus- 
tained by  him  in  consequence  of  the  taking  possession  of  said  goods 
and  chattels  by  plaintiff;  that  after  certain  proceedings  were  regu- 
larly had  in  said  suit,  a  judgment  was  rendered  against  plaintiff  and 
defendant,  in  favor  of  said  Quinby's  administrator,  for  $200  dam- 
ages, besides  costs,  which  amounted  to  $435.58;  that  an  execution 

^Accord:  Coe  v.  Smith,  4  Ind.  79.  Compare  Lakeman  v.  Pollard,  43  Me. 
463,  and  Jennings  v.  Lyons,  39  Wis.  553. 


ys   ieci, 
ted. 


icfendant,  and  a? 

request,  and  by  h 

Sarah  Ouinbv  ocj 

,iiid  after  saidpurcha- 

ceeded  to  and  did  tak 


..  ..'Uiciit  was  re. 
p-'umtiff  was  com' 
damage,  etc. 

The  defendant  v.. ii 
demurrer  was  overru- 
to  give  in  evidence  a. 
also  demurred  to  fne 
;i'cient,  and  judgir- 

The  ruling's  c^  ■■  error. 

Rice,  J. — ^Every  man  vvno  c  . -r  to  do  an  act  which  the 

employer  appears  to  have  a  rii,..<  Ize  him  to  do  undertakes 

to  indemnify  him  for  all  such  act?:  ;ent.does  not  know  to  be 

imlawful.and  as  would  b:  '      "'  ''  •.     .  .1  ,       ,  . 

ii'e  ])retends  to  have.    A' 

icy,  §  339- 

;iere  two  person.  o  pcr-^r- 

1y  to  each  other,  ar 
-      .1  person  to  take  it,  ar 
lieve  that  his  employer  is 
takes  it,  without  knov--^  • 
••r  tort,  a  promise  of 

.'h  it  subsequent';-. 

.  and  the  act  >'{  . 

174- 

III  all  such  cases  a  pro. 
:ites  of  reason  an 
7y ,  Parsons  on  Con,  :\ 

The  promise  thus  ii 
as  are  direct  and  imi' 
nf  the  aqrencv.     tn  ot' 


tracts,  §  176. 

Assumpsit  Ii'-  i.,-,.-iv,  vi^,-  .^^,  ^^.^  ^^,.^ 

>;ually  m^i  jpriate  rem- 


r.uTiE:^ 


..   n;ivuiii   ) 

'\  '^Ll     1  1  11 

Mit  having  t 

work  o 

-,  J.,  Jul 

r  affirme.' 

'lover. 


Section  2. — Dut^ 


Agent. 


tR: 


■LETON 


.0  G.    ■  nst  John 

1  by  pl<:  ,         ;!g  out  of 

the  capacity  oi  agent  for  de 
. .  I    . .  v;..3ing  and  removing  one  Aaror 
.xt  of  land  lying  in  L.i\vrence  count  v 
~        '"'"'i  sai«|  defendant  now 
ig  and  removing  said 
aid  request  of  defendant 


counts ; 

the  first  allegmg,  m  sul 

i.t'il-    in 

■<^-'^,  constituted  and  afi 

po,. 

ily,  to  do  and  perform 

SLlCi'   cvv  > 

'■"^  to  do  during  the 

year-bf 

was  acting  in  the 

capacity  oi 

:dant's  special  in- 

stance and  r 

dole  possession  of 

certain 

■ '  and  chattels 

defends: 

11  of  them  as 

such  agent,  stat^. 

e  property  o 

said  defendant, : 

t  representeu 

to  plaintiff  that 

h  statements 

and  repress  '  ^ ' 

in  so  t- ' 

T -ir-, ■,'-.< vs si r»n  ' 

•'■<?.  in  M 

■ius- 

y  him  ii: 

'■:  ot  the  ' 

•>i  said  goods 

.:-.'..  ,  attels  by  ! 

nftf-r  .  . 

s  were  regu- 

larly  had  in  said 

plaintiff  and 

defendant,  in  fs 

. ,  Lur  $20o  dam- 

ages,  besides  co 

ihat  an  execution 

'  Accord:    ' 

Pollard.  43  Mc. 

DUTY   TO   REIMBURSE   AGENT.  559 

to  pay  $325.97 ;  that  in  addition  to  this,  plaintiff  was  obliged  to 
pay  out  large  sums  of  money  in  defending  said  suit,  attorneys'  fees, 
etc.,  whereby  plaintiff  has  been  greatly  damaged,  etc. 

The  second  count,  after  alleging  the  agency  as  above  stated, 
averred  that  plaintiff,  "while  acting  in  the  capacity  of  such  agent 
for  defendant,  and  as  such  agent,  and  at  defendant's  special  instance 
and  request,  and  by  his  direction,  and  on  his  behalf,  purchased  from 
one  Sarah  Quinby  certain  goods  and  chattels,"  etc. ;  that  afterwards, 
and  after  said  purchase  was  made,  defendant  ratified  the  same,  pro- 
ceeded to  and  did  take  possession  of  said  goods  and  chattels ;  "that 
Aaron  B.  Quinby  afterwards  instituted  suit  against  plaintiff,  to  re- 
cover damages  for  the  taking  away  of  said  goods  and  chattels ;  that 
judgment  was  rendered  in  said  suit,  on  which  execution  issued,  and 
plaintiff  was  compelled  to  pay,  etc. ;  whereby  he  has  sustained  great 
damage,  etc. 

The  defendant  demurred  to  each  count  in  the  declaration,  but  his 
demurrer  was  overruled,  and  he  then  pleaded  not  guilty,  with  leave 
to  give  in  evidence  any  special  matter  of  defense.  The  defendant 
also  demurred  to  the  plaintiff's  evidence,  but  the  court  held  it  suf- 
ficient, and  judgment  was  rendered  accordingly. 

The  rulings  of  the  court  are  now  assigned  for  error. 

Rice,  J. — Every  man  who  employs  another  to  do  an  act  which  the 
employer  appears  to  have  a  right  to  authorize  him  to  do  undertakes 
to  indemnify  him  for  all  such  acts  as  the  agent  does  not  know  to  be 
unlawful,  and  as  would  be  lawful  if  the  employer  had  the  authority 
He  pretends  to  have.  Adamson  v.  Jarvis,  4  Bing.  66 ;  Story  on 
Agency,  §  339. 

Where  two  persons  are  claiming  title  to  personal  property  ad- 
versely to  each  other,  and  one  of  these  claimants  calls  upon  the 
other  person  to  take  it,  and  the  latter  has  reasonable  ground  to  be- 
lieve that  his  employer  is  the  owner  of  the  property,  and  therefore 
takes  it,  without  knowing  at  the  time  that  such  taking  is  a  trespass 
or  tort,  a  promise  of  indemnity  will  be  implied  to  such  person,  al- 
though it  subsequently  turns  out  that  the  title  of  employer  was  not 
good,  and  the  act  of  taking  a  trespass.  Avery  v.  Halsey,  14  Pick. 
174. 

In  all  such  cases  a  promise  of  indemnity  is  implied  upon  the  plain 
dictates  of  reason  and  natural  justice.  Gower  v.  Emery,  i8  Me. 
79;  Parsons  on  Con.  36,  n.  (x). 

The  promise  thus  implied  extends  only  to  such  losses  and  damages 
as  are  direct  and  immediate,  and  naturally  flow  from  the  execution 
of  the  agency.  In  other  words,  the  agency  must  be  the  cause,  and 
not  merely  the  occasion  of  the  losses  or  damages,  to  found  a  just 
right  to  reimbursement.  Story  on  Agency,  §  341 ;  Story  on  Con- 
tracts, §  176. 

Assumpsit  lies  upon  such  implied  promises.  An  action  on  the  case 
is  equally  maintainable,  and  is  said  to  be  the  more  appropriate  rem- 


560  DUTIES    OF    PRINCIPAL   TO   AGENT. 

edy.  Myers  v.  Gilbert,  18  Ala.  467;  Adamson  v.  Jarvis,  and  other 
cases  cited  supra.  But  whether  the  action  be  assumpsit  or  case,  the 
declaration  is  bad,  on  demurrer,  if  no  breach  is  stated  in  it.  i  Chit- 
ty's  PL  337. 

When  the  declaration  is  in  case,  as  it  is  here,  and  shows  that  the 
losses  for  which  the  agent  is  seeking-  indemnity  from  the  principal, 
are  certain  damages  recovered  against  the  agent  for  taking  property 
by  the  direction  of  the  principal,  in  an  action  for  trespass  brought 
against  the  agent  by  the  true  owner  of  the  property,  the  declaration 
is  defective,  if  it  omits  to  state  that  the  taking  by  the  agent  was  with- 
out k-nowledge  on  his  part,  at  the  time  of  the  taking,  that  it  was  a 
trespass.  The  agent  must,  in  his  declaration,  negative  the  existence 
of  such  knowledge  on  his  part,  although  the  onus  of  proving  the 
existence  of  such  knowledge  may  be  on  the  principal ;  for  the  rule, 
that  the  allegata  and  probata  must  correspond,  is  not  of  universal 
application.   Carpenter  v.  Devon,  6  Ala.  718. 

Each  count  of  this  declaration  is  bad,  for  the  omission  of  a  breach, 
and  also  for  failing  to  aver  that  the  agent,  at  the  time  of  the  taking, 
did  not  know  that  it  was  a  trespass  or  tort. 

An  averment  that  the  principal  had  notice  of  the  losses  and  dam- 
ages sustained  by  the  agent  set  forth  in  the  declaration,  and  failed 
to  pay  the  same,  would  be  a  good  breach  in  such  a  case  as  this. 

We  admit  the  rule,  that  the  law  will  not  enforce  contribution  nor 
indemnity  between  wrong-doers.  But  that  rule  does  not  apply  to 
any  case,  where  the  act  of  the  agent  was  not  manifestly  illegal  in  it- 
self, and  was  done  bona  fide  in  the  execution  of  his  agency,  and  with- 
out knowledge  (either  actual,  or  implied  by  law)  that  it  was  illegal. 
Parsons  on  Contracts,  p.  36,  note  (x). 

That  rule  is  applicable,  whenever  it  appears  that  the  act  of  the 
agent  was  manifestly  illegal  in  itself.  For  example,  if  A  employs  B 
to  assault  C,  and  B  thereupon  does  assault  C,  and  is  subjected  to 
damages  therefor,  B  cannot  recover  such  damages  from  A,  the  act 
of  B  being  clearly  illegal  in  itself,  the  law  implies  that  he  knew  it  to 
be  so,  and  therefore  will  not  enforce  his  claim  to  indemnity. 

The  rule  also  applies,  whenever  it  appears  that,  although  the  act 
of  the  agent  was  not  manifestly  illegal  in  itself,  yet,  in  fact,  he  knew 
it  to  be  unlawful  at  the  time  he  did  it.  For  example,  if  Appleton,  at 
the  time  he  took  the  property  claimed  by  Moore,  knew  that  Moore 
had  no  just  nor  lawful  right  to  it,  and  that  Moore's  claim  was 
groundless  and  iniquitous,  and  that  it  really  belonged  to  some  other 
person,  such  knowledge  on  the  part  of  Appleton  at  the  time  of  the 
taking,  would  defeat  any  recovery  by  him  for  any  loss  resulting  from 
such  taking,  although  he  took  it  as  the  agent  of  Moore,  and  by 
Moore's  direction.    Chappell  v.  Wysham,  4  Harris  &  Johns.  560. 

For  the  error  of  the  court  below  in  overruling  the  demurrer  to 


•nts  of  the  drcla: 


a.-sc  rcii: 


1878.      SuPkEM 

Mercur,  J. — This  :■•. 

- ^oney  had  and  - 

red  came  ini 


slructed  the  plai! 
iL.  rhere  being  no  ; 
Mav  thev  d'rec^'r'd  ^ 


.    Inimediavely  C 
<^''l'-     '~tn  the  sn  . 
lents  h\ 

pr'.trci  ds.    On  r; 

the  proceeds  to  1 

i  May,  and   , 

iTs  in  error,  • 

■  f  the  bonds  wtre  1  ^  '  lui 
-or  wliich  they  li-'''       '  ' 

others  at  the  sa' 

nd  held  the  r'    • 
::ne  day  the 

:ice  of  this    >: 

3.000   of    tllL 

'rected  Cecil,  Suiu  ^v    1 
d.  and  draw    'yr  t'.  ■  v 


,;^C'il,   r.Vi    Hit    1." 

!.  Stout  &  Tliayer, 

>n  the  14th  of  May, 

1  Fold  at  the  price 

the  defendant 


;i    a:""'!',' 


pra. 
:aa  is  bat- 

v  hen  the  decl. 
losses  for  whi'1: 
are  certain  ci 
hy  the  direc  ' 
against  the  ;. 
is  defective,  i 
out  know  i'?(i 
trespass. 
of  such   ' 
exis 


B, 


■jr  case,  the 
1  Chit- 

■  the 

.pal, 

erty 

.../ught 

laration 

!!t  was  witli- 

hat  it  was  a 

:  ■  'cnce 

-  the 

for  the  rule, 


';  Ala.  7i> 


dan- 
of  .: 
1>c  - 

of  the  ::,  _: 

it  to  be  unla\ 

the  '■'-■'■  ''-'■'  ■ 
hao 


Moore" s  direction.   (, 


Fn 


,li,^   .^ 


«:•):  a  Liri-acn, 
■  the  taking, 

and  dani- 
;,  and  failed 
as  this. 
'-       ribution  nor 

.     c  <.u. .^  not  apply  to 

>i:  manifestly  illegal  in  it- 

•H  y,  and  with- 

r  v/as  illegal. 

.      -.    ..Lt  of  the 

.  if  A  employs  B 

'  ■    subjected  to 

1  A.  the  act 

i'.e.  knew  it  to 

••ity. 

>ugh  the  act 

act,  he  knew 

.•\ppleton.  at 

^^"it  Moore 

aim   was 

V  lie  other 

.      :M,e  of  the 

.^s  resulting  from 

'    ^^."l0^e,  and  bv 

hns.  560. 


DUTY    TO    REIMBURSE   AGENT.  561 

several  counts  of  the  declaration,  its  judgment  is  reversed,  and  the 
cause  remanded.^ 


MAITLAND  v.  MARTIN. 

1878.     Supreme  Court  of  Pennsylvania.     86  Pa.  St.  120. 

Mercur,  J. — This  action  was  brought  by  the  defendant  in  error 
for  money  had  and  received  for  her  use.  The  money  sought  to  be 
recovered  came  into  the  hands  of  the  plaintiffs  in  error  under  the 
following  circumstances :  In  August.  1873,  being  brokers  in  the  city 
of  Philadelphia,  they  purchased  for  the  defendant  in  error  five  South 
Carolina  bonds,  of  the  nominal  value  of  $1,000  each.  She  left  the 
bonds  in  their  possession.  They  were  sealed  up  in  an  envelope,  her 
name  endorsed  thereon,  and  deposited  in  the  safe  of  the  plaintiffs  in 
error  in  the  "Fidelity."  They  thus  remained  until  ]\Iay,  1875,  when 
she  instructed  the  plaintiffs  in  error  to  sell  them,  at  thirty-three  per 
cent.  There  being  no  market  in  Philadelphia  for  them,  on  the  12th 
of  May  they  directed  their  correspondents,  Cecil,  Stout  &  Thayer, 
brokers  in  New  York,  to  sell  them.  By  dispatch,  on  the  14th  of  May, 
they'  advised  the  plaintiffs  in  error  that  they  had  sold  at  the  price 
named.  Immediately  thereafter  the  plaintiffs  notified  the  defendant 
of  the  sale.  On  the  same  day  the  plaintiffs  forwarded  the  bonds  to 
their  correspondents  by  express,  and  requested  a  draft  to  be  remitted 
for  net  proceeds.  On  receipt  of  the  bonds,  Cecil,  Stout  &  Thayer  re- 
mitted the  proceeds  to  plaintiffs  in  error  on  the  15th  of  May.  On  the 
17th  of  Alay,  and  while  the  proceeds  remained  in  the  hands  of  the 
plaintiffs  in  error,  they  were  notified  by  Cecil,  Stout  &  Thayer  that 
three  of  the  bonds  were  not  fundable,  and  not  a  good  delivery  at  the 
price  for  which  they  had  sold  them ;  and,  therefore,  they  had  pur- 
chased others  at  the  same  price  to  supply  the  place  of  those  not  fund- 
able, and  held  the  plaintiffs  in  error  for  the  sum  thus  advanced.  On 
the  same  day  the  plaintiffs  in  error  advised  the  defendant  of  the 
substance  of  this  notice,  and  further  requested  her  to  consider  the 
sale  of  3,000  of  the  bonds  reported  by  them  sold,  as  canceled.  They 
also  directed  Cecil,  Stout  &  Thayer  to  return  the  three  bonds  not 
accepted,  and  draw  on  them  for  the  sum  paid.    Thereupon  Cecil, 

^  "Where  an  agent,  acting  faithfully,  without  fault,  in  the  proper  service  of 
his  principal,  is  subjected  to  expense,  he  ought  to  be  reimbursed.  If  sued  on 
a  contract  made  in  the  course  of  his  agency  pursuant  to  his  authority,  though 
the  suit  be  without  cause,  and  he  eventually  succeeds,  the  law  implies  that 
the  principal  will  indemnify  him,  and  refund  the  expense.  For  this  he  can 
maintain  an  action  of  indebitatus  assumpsit;  and  the  proof  of  these  facts 
will  be  sufficient  to  warrant  the  jury  to  find  the  promise."  Swift,  Ch.  J.,  in 
Stocking  V.  Sage,  i  Conn.  518,  521. 
36 — Reinhard  Cases. 


562  DUTIES    OF    PRINCIPAL   TO   AGENT. 

Stout  &  Thayer  returned  the  bonds,  and  the  plaintiffs  in  error  paid 
them  the  sum  which  they  had  advanced. 

The  plaintiffs  in  error  oft'ered  to  return  the  three  bonds  to  the 
defendant,  and  account  for  the  proceeds  of  the  two  others;  but  she 
denies  their  right  to  hold  her  responsible  for  the  money  thus  paid 
by  them,  and  seeks  to  recover  the  whole  sum  agreed  to  be  paid  for 
the  five  iDonds. 

It  appears,  by  the  evidence,  that  about  the  ist  of  June,  1874,  the 
treasurer  of  the  state  of  South  Carolina  issued  a  notice  that  certain 
bonds  of  that  state  had  been  declared  null  and  void  by  the  legisla- 
ture, and  would  not  be  recognized.  Thereupon,  June  2d,  1874,  the 
New  York  Stock  Exchange  made  an  order  that  the  bonds  embraced 
in  said  notice  should  not  pass,  as  a  good  delivery,  on  a  sale  of  regu- 
lar "South  Carolina  bonds,"  after  that  date.  Three  of  these  bonds 
appear  to  have  been  repudiated  by  the  legislature,  and  at  the  time 
of  the  sale,  in  May,  1875,  were  not  fundable,  and  as  a  consequence 
were  almost  worthless.  Cecil,  Stout  &  Thayer  professed  to  sell 
"fundable  bonds"  only.  They  supposed  all  of  the  five  to  be  of  that 
class.  The  purchaser  had  a  right  to  suppose  he  was  buying  such. 
Discovering  that  three  of  them  were  not  of  that  kind,  he  refused  to 
accept  them.  Cecil,  Stout  &  Thayer  thereupon  replaced  them  with 
such  bonds  as  filled  the  contract.  If  these  facts  be  proved,  they 
undoubtedly  had  a  valid  claim  against  the  persons  in  whose  behalf 
they  agreed  to  make  the  sale.  At  the  time  the  plaintiffs  in  error 
directed  them  to  make  the  sale,  they  did  not  disclose  the  name  of 
their  principal ;  yet  this  in  no  manner  changed  the  legal  rights  and 
liabilities  between  her  and  them.  The  specific  bonds  were  her  prop- 
erty. The  plaintiff's  were  her  agents  to  effect  the  sale.  It  was  to  be 
made  for  her  benefit.  The  plaintiffs  were  bound  to  due  care,  pru- 
dence and  diligence  in  the  execution  of  the  powers  committed  to 
them.  These  they  appear  to  have  exercised.  They  kept  their  prin- 
cipal informed  of  their  action.  The  defendant  is  not  shown  to  have 
sustained  any  damage  by  reason  of  any  information  being  withheld 
from  her.  These  bonds  had  depreciated  while  owned  by  her.  If 
the  plaintiffs  in  error,  while  acting  as  her  agents  in  effecting  the 
sale,  without  any  fault  on  their  part,  became  liable,  she,  and  not 
they,  must  bear  the  loss. 

The  object  to  be  effected  was  the  sale  of  the  bonds.  The  plaintiffs 
in  error,  as  well  as  Cecil,  Stout  &  Thayer,  were  acting  as  agents  to 
reach  that  end.  An  agreement  to  sell  fundable  bonds,  and  a  pay- 
ment by  the  purchaser  to  one  agent,  and  his  transmission  to  another 
agent,  did  not  necessarily  complete  the  transaction. 

•It  required  a  delivery,  or  a  readiness  to  deliver  the  bonds,  of  the 
kind  sold,  according  to  the  contract.  Anything  less  than  that  left 
the  transaction  incomplete,  unless  further  fulfilment  was  waived. 

In  fully  perfecting  a  sale  the  plaintiffs  in  error  were  strictly  in 
the  line  of  their  duty.     We  discover  nothing  affecting  their  good 


If,  then,  without  fault  ■  :.anage- 

.r  .1.  -  i-nsiness  of  the  de-  -   *^'^05e 

be  borne  by  her  .2:e, 

D'Arcy  v.  Ly  ■ 
tiffs  m  em 
'■I  die  p-  1 
.;  and  reii 
se  them, 
•vs  consent  m.-, 
>y  necessarily  ac 
as  stated,  tlv  ^ 
;.     If  so  jus' 
rity  of  the  p.. 
and  their  a.^ 
;h  by  fai: 
have  be-'.-....    . . 

ioes  not  bar  tht 
dant  to  make  th 
ns  of  the  charge 

'^signmcr.'  led. 

nt  revev  novo  awarded.^ 


>ii  3. — Employer's  Liability. 


\T?w"r:TJ.  V  "rof:  ;  ^ter  "R^^ 


SupPEME  Jvv: 

till  actiwii  (J I  i\c 
ation  that  he  ag 

.-nt  of  an  engiiic.r  . 
d   cars   runnin^r   ^'-n 
r,  and  enter 
duties  as  et ,. 
at  Newton,  by  their 
'  '-Managed  and  n" 

le  short  swr 
lat  the  engine  ana 


M'Hxt  &  Thayer  n 

\hi.\n  the  sum  v/hk', 

plaintiffs  ir. 

■d  to  re 

...  ..  ..Jant,  and  ace 

...  proce'^'l 

ucnies  their  right 

ier  respe: 

by  them,  and  seeks 

'.er  the  wnu' 

the  five  bonds. 

It  appears,  1- 

■ce,  that 

treasurer  of  tb 

:-.th  Car- 

bonds  of  that  . . 

;u  declared  ; 

ture,  and  woul 

!:>gnized.    T\ 

New  York  St<; 

:  made  an  or 

in  said  not' 

-s,  as  a  gooi 

lar  "Souti 

after  that 

appear  to  ii.ix 

'  by  the 

of  the  sale,  in 

n':>t  fn-" 

were   almost    \ 

er  liad  a  right  i;o  si 

.:..,.._       ...1 

ree  of  tl-'-"'  ■.■-,•■,•,■■  .-.-, 

a.     Cecil 

,  Stout 

error 


paid 


The  pia 


erty. 

made 
dence 
them.     .. 
cipal  info; 
sustained  any 
from  her.     T 
the  plaintiffs 
sale,  without  ; 
they,  must  bear 

The  object  to  L'. 
in  error,  as  well  a.- 
rcach  that  end.     .-'■■ 
ment  by  the  purcha 
agent,  did  not  necessar. 

-It  required  a  delivery, 
kind  sold,  according  to  tli 
the  transaction  incomplete, 
In  fully  perfecting  a  sa 
ne  of  their  duty 


e  bonds  to  the 

.  others;  but  she 

0  money  thus  paid 

~  •  t".  be  paid  for 

,  1874,  the 

..hat  certain 

by  the  legisla- 

e  2d,  1874,  the 

onds  embraced 

a  sale  of  regu- 

(  of  these  bpnds 

iud  at  the  time 

a  consequence 

sed  to  sell 

-;  be  of  that 

appose  he  was  buying  such. 

t  of  that  ki!^d,  he  refused  to 

.reupon  replaced  them  with 

^(   these  facts  be  proved,  they 

■liX  the  persons  in  whose  behalf 

le  sak.     Ai  the  time  the  plaintiffs  in  error 

the  sale,  they  c'id  not  disclose  the  name  of 

red  the  legal  rights  and 

.  -    nc  bonds  were  her  prop- 

^ents  to  effect  the  sale.    It  was  to  be 

.,,r~,fr_  .,         hound  to  due  cafe,  pru- 

e  powers  committed  to 

''^hey  kept  their  prin- 


not  shown  to  have 

iiion  being  withheld 

"\vned  by  her.     If 

as  het  :i  effecting  the 

1-^    iw  iA'.o    Qiir'  not 

i  nt^  piaiiuiffs 

.  Mig  as  agents  to 

^_  bonds,  and  a  pay- 

.  amission  to  another 

n. 

T  the  bonds,  of  the 
.:  less  than  that  left 
uaent  was  waived. 
I  error  were  strictly 
.(lung  affecting  their  g 


employer's  liability.  563 

faith.  If,  then,  without  fault  on  their  part  in  the  honest  manage- 
ment of  the  business  of  the  defendant,  they  incurred  damages,  those 
damages  must  be  borne  by  her  and  not  by  them.  Stocking  v.  Sage, 
I  Conn.  519;  D'Arcy  v.  Lyle,  5  Binn.  441 ;  Whart.  on  Agents,  §  316. 

If  the  plaintiffs  in  error  in  good  faith  carried  out  the  contract 
made  with  the  purchaser,  they  did  not  thereby  adopt  the  loss  as 
their  own  and  relieve  the  defendant  from  her  legal  obligation  to  re- 
imburse them.  Although  they  took  back  the  bonds,  without  the 
express  consent  and  authority  of  the  defendant,  yet  they  did  not 
thereby  necessarily  accept  them  as  their  own.  If  the  facts  are  found 
to  be  as  stated,  the  purchaser  was  justified  in  refusing  to  accept  the 
bonds.  If  so  justified,  it  was  clearly  within  the  general  scope  and 
authority  of  the  plaintiffs  in  error,  as  her  agents,  to  fulfil  the  con- 
tract, and  their  acts,  in  contemplation  of  law,  became  her  acts.  Al- 
though by  failing  to  disclose  their  principal,  the  plaintiffs  in  error 
may  have  become  personally  liable  to  Cecil,  Stout  &  Thayer,  yet 
that  does  not  bar  the  right  of  the  plaintiffs  in  error  to  require  the 
defendant  to  make  their  loss  good.  It  therefore  follows  that  many 
portions  of  the  charge  were  too  unfavorable  to  the  plaintiffs  in  error, 
and  the  assignments  are  substantially  sustained. 

Judgment  reversed  and  a  venire  facias  de  novo  awarded.^ 


Section  3. — Employer's  Liability. 

(a)    FELLOW-SERVANT    RULE. 

FARWELL  V.  BOSTON  &  WORCESTER  RAILROAD 
CORPORATION. 

1842.     Supreme  Judicial  Court  of  Massachusetts.     4  Met.  49. 

In  an  action  of  trespass  upon  the  case,  the  plaintiff  alleged  in  his 
declaration  that  he  agreed  with  the  defendants  to  serve  them  in  the 
employment  of  an  engineer  in  the  management  and  care  of  their  en- 
gines and  cars  running  on  their  railroad  between  Boston  and 
Worcester,  and  entered  on  said  employment,  and  continued  to  per- 
form his  duties  as  engineer  till  October  30th,  1837,  when  the  de- 
fendants, at  Newton,  by  their  servants,  so  carelessly,  negligently  and 
unskilfully  managed  and  used,  and  put  and  placed  the  iron  match 
rail,  called  the  short  switch,  across  the  rail  or  track  of  their  said 
railroad,  that  the  engine  and  cars,  upon  which  the  plaintiff  was  en- 

^  In  Mohr  v.  ]Miesen,  47  ^linn.  228,  it  was  held  that  an  agent  cannot  recover 
from  his  principal  for  advances  made  in  illegal  transactions. 


564  DUTIES    OF    PRINCIPAL   TO   AGENT. 

gaged  and  employed  in  the  discharge  of  his  said  duties  of  engitieer, 
were  thrown  from  the  track  of  said  railroad,  and  the  plaintiff,  by 
means  thereof,  was  thrown  with  great  violence  upon  the  ground; 
by  means  of  which  one  of  the  wheels  of  one  of  said  cars  passed  over 
the  right  hand  of  the  plaintiff,  crushing  and  destroying  the  same. 

The  case  was  submitted  to  the  court  on  the  following  facts  agreed 
by  the  parties :  "The  plaintiff  was  employed  by  the  defendants,  in 
1835,  as  an  engineer,  and  went  at  first  with  the  merchandise  cars, 
and  afterwards  with  the  passenger  cars,  and  so  continued  till  Oc- 
tober 30,  1837,  at  the  wages  of  two  dollars  per  day;  that  being  the 
usual  wages  paid  to  engine-men,  which  are  higher  than  the  wages 
paid  to  a  machinist,  in  which  capacity  the  plaintiff  formerly  was  em- 
ployed. 

"On  the  30th  of  October,  1837,  the  plaintiff",  then  being  in  the 
employment  of  the  defendants,  as  such  engineman,  and  running  the 
passenger  train,  ran  his  engine  off  at  a  switch  on  the  road,  which  had 
been  left  in  a  wrong  condition,  (as  alleged  by  the  plaintiff,  and, 
for  the  purpose  of  this  trial,  admitted  by  the  defendants,)  by  one 
Whitcomb,  another  servant  of  the  defendants,  who  had  been  long 
in  their  employment,  as  a  switch-man  or  tender,  and  had  the  care 
of  switches  on  the  road,  and  was  a  careful  and  trustworthy  servant, 
in  his  general  character,  and  as  such  servant  was  well  known  to 
the  plaintiff.  By  which  running  off,  the  plaintiff  sustained  the  in- 
jury complained  of  in  his  declaration. 

"The  said  Farwell  (the  plaintiff)  and  Whitcomb  were  both  ap- 
pointed by  the  superintendent  of  the  road,  who  was  in  the  habit 
of  passing  over  the  same  very  frequently  in  the  cars,  and  often  rode 
on  the  engine. 

"If  the  court  shall  be  of  opinion  that,  as  matter  of  law,  the  de- 
fendants are  not  liable  to  the  plaintiff,  he  being  a  servant  of  the 
corporation,  and  in  their  employment,  for  the  injury  he  may  have 
received  from  the  negligence  of  said  Whitcomb,  another  servant  of 
the  corporation,  and  in  their  employment,  then  the  plaintiff  shall 
become  nonsuit ;  but  if  the  court  shall  be  of  opinion,  as  matter  of 
law,  that  the  defendants  may  be  liable  in  this  case,  then  the  case 
shall  be  submitted  to  a  jury  upon  the  facts  which  may  be  proved 
in  the  case ;  the  defendants  alleging  negligence  on  the  part  of  the 
plaintiff." 

Shaw,  C.  J. — This  is  an  action  of  new  impression  in  our  courts, 
and  involves  a  principle  of  great  importance.  It  presents  a  case, 
where  two  persons  are  in  the  service  and  employment  of  one  com- 
pany, whose  business  it  is  to  construct  and  maintain  a  railroad,  and 
to  employ  their  trains  of  cars  to  carry  persons  and  merchandise 
for  hire.  They  are  appointed  and  employed  by  the  same  company 
to  perform  separate  duties  and  services,  all  tending  to  the  accom- 
plishment of  one  and  the  same  purpose — that  of  the  safe  and  rapid 
transmission  of  the  trains ;  and  they  are  paid  for  their  respective 


.''^5 


labor  and 

tion    is,    Hi  ■  1   !i:i       ;  ,,  .   ij 

emplovfci.  by  means  of  \.h.. 
the  pa: 
is  3n 

CiiHt  ilO 

1  down  Iv 
does  any  damage  to  a 
w^^  -.ftrltct    But  the  «'• 
in  the  master's 
ms  owri  misbe'- 
East  io6.    This  ■. 
cf   social   duty,   tli;' 
nffsirs,  whether  b_ 
r  them  as  t 
r  thereby  su- 
ervant,  in  th 
,.  ..  ri.ope  of  his  aui 
so  far  the  act  of 
ckUiter.     But  this 
in  the  relation  of  si 
rion,  ip  such  . 
-s  on  the  ca 
icat  superior  is  . 
.  yi  policy  and  secuii'. , 
But  this  does  not  apply 
i-Tainst  his  own  er" 
■  in  the  course  o  "■. 
peril  as  the  em  ' 
r^nrf  bear'  may 

them,  and  wnicii,  in 
nus  regulated, 
same  view  seen: 
•  plaintiff  in   th- 
ould  not  be  pla<. 


.  .  Lhe 
ques- 
so 
r, 
..  It 
n  de- 


he  does  n 
.-.  ;.  cT  for  it.     J 
ent,  and  acting 
1,  iu  contemplation  o-  ;,uv, 
latter  shall  be  answerable 
i  to  each  other 
lo  privity;  and 
LOi  t.    The  form  is 
nage.     The  maxim 
ifom  general  considera- 


ant  lii  the  C' 

and  must  \y. 

of  contract.     As 

■' ^t^ilicable  t*"-  ^^^'■■ 

act  of  V 

"!t  WOu:'i 

'o  be  TV 

m  11:  c 

sons  a 

gat;ea  and  employe. 

.arge  i;t 

•■.:;-    or, 

were  thrown  from 

said  raj 

..■  .r .  i^   by 

means  thereof,  wa- 

i  great 

-  ground; 

by  means  of  which 

heels  of  '■■ 

,     .0,1    ,s  „•,.,- 

the  right  hand  of  ti 

ushing  -.'A 

The  case  was  su' 

court  CM 

■'0  '•'■  ■    -'i:;''-^-" 

by  the  parties :   "1 

vas  emp' 

defendants,  in 

1835,  as  an  en- 

at  first    • 

iidise  cars, 

and  afterwards 

?;e-  cm-- . 

.:d  till  Oc- 

tober  30,  1837. 

that  being  the 

usual  wage-  ^ 

iian  the  wages 

paid  to  a  r 

riacity  tlu 

inerly  was  em- 

ployed. 

"On  the  -^oth  01 

■■,'"-     '  i  ■)  0     :  '  L; .      ' 

1  being  in  the 

i  1     1 1  i  t: 

fendants  a 
corporation,  aii 
received  from  ■-, 
the  corporation,  e.. 
become  nonsuit;  b. 
law,  that  the  defo. 
shall  be  submitted 
ii!  the  case ;  the  dt 


ui  running  the 

>ad,  which  had 

.1  by  iiie  plaintiff,  and, 

iC  defenOc>nts,)   by  one 

>«ho  had  been  long 

>.;...;.  and  had  the  care 

areful  and  trustworthy  servant, 

h  servant  was  well  known  to 

,  tlie  plaintiff  sustained  the  in- 

V  hitcomb  were  both  ap- 
;id,  who  was  in  the  habit 
■II  fac  cars,  and  often  rode 

' cer  of  lau .  w.^  ._.^- 

or  a  servant  of  the 

V  he  may  have 

■her  servant  of 

plaintiff  shall 

■  .  as  matter  of 

then  the  case 

.''V  be  proved 

;)art  of  the 


pany,  whose  busin 
to  employ  thfeir  tv 
for  hire.    They  ari 
to  perform  separati.   . 
plishment  of  one  and 
transmission  (''  *' 


.••.scats  a  case, 
jt  of  one  com- 
uiin  a  railroad,  and 
■  and  merchandise 
the  same  company 
iing  to  the  accom- 
the  safe  and  rapid 


employer's  liability.  565 

services  according  to  the  nature  of  their  respective  duties,  and  the 
labor  and  skill  required  for  their  proper  performance.  The  ques- 
tion is,  whether,  for  damages  sustained  by  one  of  the  persons  so 
employed,  by  means  of  the  carelessness  and  negligence  of  another, 
the  party  injured  has  a  remedy  against  the  common  employer.  It 
is  an  argument  against  such  an  action,  though  certainly  not  a  de- 
cisive one,  that  no  such  action  has  before  been  maintained. 

It  is  laid  down  by  Blackstone,  that  if  a  servant,  by  his  negligence, 
does  any  damage  to  a  stranger,  the  master  shall  be  answerable  for 
his  neglect.  But  the  damage  must  be  done  while  he  is  actually  em- 
ployed in  the  master's  service ;  otherwise,  the  servant  shall  answer 
for  his  own  misbehavior,  i  Bl.  Com.  431.  M'AIanus  v.  Crickett, 
I  East  106.  This  rule  is  obviously  founded  on  the  great  principle 
of  social  duty,  that  every  man,  in  the  management  of  his  own 
affairs,  whether  by  himself  or  by  his  agents  or  servants,  shall  so 
conduct  them  as  not  to  injure  another;  and  if  he  does  not,  and 
another  thereby  sustains  damage,  he  shall  answer  for  it.  If  done 
by  a  servant,  in  the  course  of  his  employment,  and  acting  within 
the  scope  of  his  authority,  it  is  considered,  in  contemplation  of  law, 
so  far  the  act  of  the  master,  that  the  latter  shall  be  answerable 
ciz'ilifer.  But  this  presupposes  that  the  parties  stand  to  each  other 
in  the  relation  of  strangers,  between  whom  there  is  no  privity ;  and 
the  action,  in  such  case,  is  an  action  sounding  in  tort.  The  form  is 
trespass  on  the  case,  for  the  consequential  damage.  The  maxim 
respondeat  superior  is  adopted  in  that  case,  from  general  considera- 
tion of  policy  and  security. 

But  this  does  not  apply  to  the  case  of  a  servant  bringing  his  ac- 
tion against  his  own  employer  to  recover  damages  for  an  injury 
arising  in  the  course  of  that  employment,  where  all  such  risks  and 
peril  as  the  employer  and  the  servant  respectively  intend  to  assume 
and  bear'  may  be  regulated  by  the  express  or  implied  contract  be- 
tween them,  and  which,  in  contemplation  of  law,  must  be  presumed 
to  be  thus  regulated. 

The  same  view  seems  to  have  been  taken  by  the  learned  counsel 
for  the  plaintiff  in  the  argument;  and  it  was  conceded,  that  the 
claim  could  not  be  placed  on  the  principle  indicated  by  the  maxim 
respondeat  superior,  which  binds  the  master  to  indemnify  a  stranger 
for  the  damage  caused  by  the  careless,  negligent  or  unskilful  act 
of  his  servant  in  the  conduct  of  his  affairs.  The  claim,  therefore, 
is  placed,  and  must  be  maintained,  if  maintained  at  all,  on  the 
ground  of  contract.  As  there  is  no  express  contract  between  the 
parties,  applicable  to  this  point,  it  is  placed  on  the  footing  of  an  im- 
plied contract  of  indemnity,  arising  out  of  the  relation  of  master 
and  servant.  It  would  be  an  implied  promise,  arising  from  the  duty 
of  the  master  to  be  responsible  to  each  person  employed  by  him, 
in  the  conduct  of  every  branch  of  business,  where  two  or  more  per- 
sons are  employed,  to  pay  for  all  damage  occasioned  by  the  negli- 


566  DUTIES    OF    PRINCIPAL   TO   AGENT. 

gence  of  every  other  person  employed  in  the  same  service.  If  such 
a  duty  were  estabHshed  by  law — like  that  of  a  common  carrier, 
to  stand  to  all  losses  of  goods  not  caused  by  the  act  of  God  or  of  a 
public  enemy — or  that  of  an  innkeeper,  to  be  responsible,  in  like 
manner  for  the  baggage  of  his  guests ;  it  would  be  a  rule  of  frequent 
and  familiar  occurrence,  and  its  existence  and  application,  with  all 
its  qualifications  and  restrictions,  would  be  settled  by  judicial  prec- 
edents. But  we  are  of  opinion  that  no  such  rule  has  been  estab- 
lished, and  the  authorities,  as  far  as  they  go,  are  opposed  to  the 
principle.  Priestley  v.  Fowler,  3  Mees.  &  Welsh,  i ;  Murray  v. 
South  Carolina  Railroad  Company,  i  McMullan  385. 

The  general  rule,  resulting  from  considerations  as  well  of  justice 
as  of  policy,  is,  that  he  who  engages  in  the  employment  of  another 
for  the  performance  of  specified  duties  and  services,  for  compensa- 
tion, takes  upon  himself  the  natural  and  ordinary  risks  and  perils 
incident  to  the  performance  of  such  services,  and  in  legal  presump- 
tion, the  compensation  is  adjusted  accordingly.  And  we  are  not 
aware  of  any  principle  which  should  except  the  perils  arising  from 
the  carelessness  and  negligence  of  those  who  are  in  the  same  em- 
ployment. These  are  perils  which  the  servant  is  as  likely  to  know, 
and  against  which  he  can  as  effectually  guard,  as  the  master.  They 
are  perils  incident  to  the  service,  and  which  can  be  as  distinctly  fore- 
seen and  provided  for  in  the  rate  of  compensation  as  any  others. 
To  say  that  the  master  shall  be  responsible  because  the  damage  is 
caused  by  his  agents,  is  assuming  the  very  point  which  remains  to 
be  proved.  They  are  his  agents  to  some  extent,  and  for  some  pur- 
pose; but  whether  he  is  responsible,  in  a  particular  case,  for  their 
negligence,  is  not  decided  by  the  single  fact  that  they  are,  for  some 
purposes,  his  agents.  It  seems  to  be  now  settled,  whatever  might 
have  been  thought  formerly,  that  underwriters  cannot  excuse  them- 
selves from  payment  of  a  loss  by  one  of  the  perils  insured  against, 
on  the  ground  that  the  loss  was  caused  by  the  negligence  or  un- 
skilfulness  of  the  officers  or  crew  of  the  vessel,  in  the  performance 
of  their  various  duties  as  navigators,  although  employed  and  paid 
by  the  owners,  and,  in  the  navigation  of  the  vessel,  their  agents. 
Copeland  v.  New  England  Marine  Ins.  Co.,  2  Met.  440-443,  and 
cases  there  cited.  I  am  aware  that  the  maritime  law  has  its  own 
rules  and  analogies,  and  that  we  cannot  always  safely  rely  upon 
them  in  applying  them  to  other  branches  of  law.  But  the  rule  in 
question  seems  to  be  a  good  authority  for  the  point,  that  persons  are 
not  to  be  responsible,  in  all  cases,  for  the  negligence  of  those  em- 
ployed by  them. 

If  we  look  from  considerations  of  justice  to  those  of  policy,  they 
will  strongly  lead  to  the  same  conclusion.  In  considering  the  rights 
and  obligations  arising  out  of  particular  relations,  it  is  competent 
for  courts  of  justice  to  regard  considerations  of  policy  and  general 
convenience,  and  to  draw  from  them  such  rules  as  will,  in  their 


.\]  anplir^Tion     best  prrnnote  the  saf 

■  '  '       "  -d 

i'    •  ^" 

tion  of  wnat  is  bt  'is 

concerneci,   under  '  n 

and  familiar  cases  >d 

to  actual  fault    -  le 

for  all  losses  '  S': 

'  by  the  aci  oi  L; 

them  ag'air!':*-  ^'' 

)ss,  it  V 

of  embt  : 
of  the  carrier,  although  it  ' 
i"he  risk  is  therefore  thi' 
the  form  of  payment  {• 
which  he  thus  assumes. 
the  attendance  of  hone.vi  » 


uiaies  ana  ;• 

.-  property  <-■  . 

id  yet  it  would  '  -"  these 

cts. 

The  liability  of  pas; 
ins.    They  are  h';'  ' 
d  ckill,  on  the  .. 
they  ai 
y  of'tlir 
r.  it.     Story  on  : 
..  ^  are  of  opinir- 
ise  in  question. 
■    -'f  one  coinniOii  •  ' 
Is  much  on  thu 
m  his  a' 


may   requr 
tnore  efft  •' 
jn  cmpi 

'      vher.     ;-,. 
ninw  ar, 


;n  that 


DUTJ) 


public  cn€niyT-or 
r. i;i.r.ner  for  the  I.:*' 

i(..-5  vj^ualiii'." 
edeiits.    1 
lisbed,  and  t; 
principle.      ?'-• 
South  Ca; 
The  i^-e: 


s  in  the 

.     ..  .  ....L.iies  pt-i' 

e  natural  ai. 


:J1  be  respoi; 
hig  the  ^ 

s   to  S(»f 


elves  frO' 


of  the 


rules  and  an? 


f  such 
:arrier, 

or  of  a 

ui  like 

■ equent 

,  ith  ^till 

i  prec- 

estab- 

'pposed  to  the 

.1 ;  Murray  v. 

well  of  justice 

:ent  of  another 

for  compensa- 

and  perils 

1  presump- 

ve  are  not 

vising  from 

same  em- 

■  to  know, 

->ter.    They 

mctly  fore- 

..    any  others. 

the  damage  is 

v'.hich  remains  to 

and  for  some  pur- 

ular  case,  for  their 

they  are,  for  some 

iever  might 

.   L. ,.  -.icuse  them- 

perils  insured  against, 

-  -"^ligence  or  un- 

'e  performance 

'     old 

,/uS. 

^'^443>  and 

■las  its  own 

rely  upon 

.1  the  rule  in 

nat  persons  are 

■f  those  em- 


nd  to  draN\ 


-  -y,  they 

.  rights 

■us,  it  is  competent 

i  policy  and  generp.l 

rules  as  will,  ii 


employer's  liability,  567 

practical  application,  best  promote  the  safety  and  security  of  all 
parties  concerned.  This  is,  in  truth,  the  basis  on  which  implied 
promises  are  raised,  being  duties  legally  inferred  from  a  considera- 
tion of  what  is  best  adapted  to  promote  the  benefit  of  all  persons 
concerned,  under  given  circumstances.  To  take  the  well-known 
and  familiar  cases  already  cited;  a  common  carrier,  without  regard 
to  actual  fault  or  neglect  in  himself  or  his  servants,  is  made  liable 
for  all  losses  of  goods  confided  to  him  for  carriage,  except  those 
caused  by  the  act  of  God  or  of  a  public  enemy,  because  he  can  best 
guard  them  against  all  minor  dangers,  and  because,  in  case  of  ac- 
tual loss,  it  would  be  extremely  difiicult  for  the  owner  to  adduce 
proof  of  embezzlement  or  other  actual  fault  or  neglect  on  the  part 
of  the  carrier,  although  it  may  have  been  the  real  cause  of  the  loss. 
The  risk  is  therefore  thrown  upon  the  carrier,  and  he  receives, 
in  the  form  of  payment  for  the  carriage,  a  premium  for  the  risk 
which  he  thus  assumes.  So  of  an  innkeeper;  he  can  best  secure 
the  attendance  of  honest  and  faithful  servants,  and  guard  his  house 
against  thieves.  Whereas,  if  he  were  responsible  only  upon  proof 
of  actual  negligence,  he  might  connive  at  the  presence  of  dishonest 
inmates  and  retainers,  and  even  participate  in  the  embezzlement  of 
the  property  of  the  guests,  during  the  hours  of  their  necessary  sleep, 
and  yet  it  would  be  difficult,  and  often  impossible,  to  prove  these 
facts. 

The  liability  of  passenger  carriers  is  found  on  similar  considera- 
tions. They  are  held  to  the  strictest  responsibility  for  care,  vigilance 
and  skill,  on  the  part  of  themselves  and  all  persons  employed  by 
them,  and  they  are  paid  accordingly.  The  rule  is  founded  on  the 
expediency  of  throwing  the  risk  upon  those  who  can  best  guard 
against  it.     Story  on  Bailments,  590,  and  seq. 

We  are  of  opinion  that  these  considerations  apply  strongly  to  the 
case  in  question.  Where  several  persons  are  employed  in  the  con- 
duct of  one  common  enterprise  or  undertaking,  and  the  safety  of  each 
depends  much  on  the  care  and  skill  with  which  each  other  shall 
perform  his  appropriate  duty,  each  is  an  observer  of  the  conduct  of 
the  others,  can  give  notice  of  any  misconduct,  incapacity  or  neglect 
of  duty,  and  leave  the  service,  if  the  common  employer  will  not  take 
such  precautions,  and  employ  such  agents  as  the  safety  of  the  whole 
party  may  require.  By  these  means,  the  safety  of  each  will  be 
much  more  effectually  secured,  than  could  be  done  by  a  resort  to  the 
common  employer  for  indemnity  in  case  of  loss  by  the  negligence 
of  each  other.  Regarding  it  in  this  light,  it  is  the  ordinary  case  of 
one  sustaining  an  injury  in  the  course  of  his  own  employment,  in 
which  he  must  bear  the  loss  himself,  or  seek  his  remedy,  if  he  have 
any,  against  the  actual  wrong-doer. 

In  applying  these  principles  to  the  present  case,  it  appears  that  the 
plaintiff  was  employed  by  the  defendants  as  an  engineer,  at  the  rate 
of  wages  usually  paid  in  that  employment,  being  a  higher  rate  than 


568  DUTIES    OF    PRINCIPAL   TO   AGENT. 

the  plaintiff  had  before  received  as  a  machinist.  It  was  a  voluntary 
undertaking  on  his  part,  with  a  full  knowledge  of  the  risks  incident 
to  the  employment  and  the  loss  was  sustained  by  means  of  an  ordi- 
nary casualty,  caused  by  the  negligence  of  another  servant  of  the 
company.  Under  these  circumstances,  the  loss  must  be  deemed  to 
be  the  result  of  a  pure  accident,  like  those  to  which  all  men,  in 
all  employments,  and  at  all  times,  are  more  or  less  exposed ;  and 
like  similar  losses  from  accidental  causes,  it  must  rest  where  it  first 
fell,  unless  the  plaintiff  has  a  remedy  against  the  person  actually  in 
default ;  of  which  we  give  no  opinion. 

It  was  strongly  pressed  in  the  argument,  that  although  this  might 
be  so,  where  two  or  more  servants  are  employed  in  the  same  de- 
partment of  duty,  where  each  can  exert  some  influence  over  the  con- 
duct of  the  other,  and  thus  to  some  extent  provide  for  his  own  se- 
curity ;  yet  that  it  could  not  apply  where  two  or  more  are  employed 
in  different  departments  of  duty,  at  a  distance  from  each  other,  and 
where  one  can  in  no  degree  control  or  influence  the  conduct  of 
another.  But  we  think  this  is  founded  upon  a  supposed  distinction, 
on  which  it  would  be  extremely  difficult  to  establish  a  practical  rule. 
When  the  object  to  be  accomplished  is  one  and  the  same,  when  the 
employers  are  the  same,  and  the  several  persons  employed  derive 
their  authority  and  their  compensation  from  the  same  source,  it 
would  be  extremely  difficult  to  distinguish,  what  constitutes  one  de- 
partment and  what  a  distinct  department  of  duty.  It  would  vary 
with  the  circumstances  of  every  case.  If  it  were  made  to  depend 
upon  the  nearness  or  distance  of  the  persons  from  each  other,  the 
question  would  immediately  arise,  how  near  or  how  distant  must 
they  be,  to  be  in  the  same  or  different  departments.  In  a  black- 
smith's shop,  persons  working  in  the  same  building,  at  different 
fires,  may  be  quite  independent  of  each  other,  though  only  a  few 
feet  distant.  In  a  ropewalk,  several  may  be  at  work  on  the  same 
piece  of  cordage,  at  the  same  time,  at  many  hundred  feet  distant 
from  each  other,  and  beyond  the  reach  of  sight  and  voice,  and  yet 
acting  together. 

Besides,  it  appears  to  us,  that  the  argument  rests  upon  an  as- 
sumed principle  of  responsibility  which  does  not  exist.  The  mas- 
ter, in  the  case  supposed,  is  not  exempt  from  liability,  because  the 
servant  has  better  means  of  providing  for  his  safety,  when  he  is 
employed  in  immediate  connection  with  those  from  whose  negligence 
he  might  suffer ;  but  because  the  implied  contract  of  the  master  does 
not  extend  to  indemnify  the  servant  against  the  negligence  of  any 
one  but  himself;  and  he  is  not  liable  in  tort,  as  for  the  negligence 
of  his  servant,  because  the  person  suffering  does  not  stand  towards 
him  in  the  relation  of  a  stranger,  but  is  one  whose  rights  are  regu- 
lated by  contract  express  or  implied.  The  exemption  of  the  master, 
therefore,  from  liability  for  the  negligence  of  a  fellow  servant,  does 
not  depend  exclusively  upon  the  consideration,  that  the  servant  has 


A  case  may  be  ! 

■se  the  i'     ' 
I  was  iC' 

'Onditiou  luy  tic  j '. 
•,.it  the  engine:'  r.v'  , 
rs,  paying  toll  to 
...ition  from  passei 
to  suffer  a  loss  fr^ 
■     '  "cd   to   the  o, 
-:  the  railroa 
tiicL  as  between  ii 
engines  and  cars,  .'; 
the  engineer  woui 

iirm  there  could  be  .    .    .. 

er  would  have  n;  :  conduct  of 

leader.    The  respo  -  r  -  ^'~    - 

his  servant,  in  thr  ,, 

is  founded  on  anot  n- 

tract,  and  stand?  ■  ts 

'!'  policy,  we- 
ir whose  see 
olicy  and  general  ex] 
j  far  as  to  warrant  l 
nployer  for  an  indei 
'     nature  and  t:' 
■  not  ronduci 


.  )n,  we  would  a?- 

application  of  i 

•'Ic.     It  may  be  ■ 

tijiig  in  the  present  . 

actual  negligence 


would  bt  T<. 


'  i;.^ 


;.i.e  i  '-nntifl:  had  before  ■ 

voluntary 

,,jm'>"  '  .'■  ino-  on  his  p.-^i  ■' 

-  iM,~I(]f'nt 

to                   -lymenf  ; 

naiy  ^,.i::if.cilty,  caus' 

';     I  lie 

company.    Under  t> 

icd  to 

be  the  result  of 

n,  in 

all  employment 

•  and 

like  similar  loss 

It:  It  first 

fell,  unless  the 

ri.ially  in 

default ;  of 

ion. 

It  was  sti.  .     .  J. - 

argil  tiieii 

...1.  i'.A^  might 

be  so,  where  two  o 

■ints  are 

the  same  de- 

partmer" 

;ii  exert  si 

over  the  con- 

duct,  of 

■  me  exti. 

r  his  own  se- 

ci::   • 

ertiployed 

Ml 

ither,  and 

;   or 

ini 

■■'.t  conduct  of 

d  tipon  ' 

j;i  distinction, 

lit  to  estabhsh 

a  practical  rule. 

.    .,,:.]     tl>.. 

...,,,.^   when  the 
ed  derive 
>ource,   it 
-s  one  de- 

luent 

of  duty. 

it  would  vary 

V.l  ■ 


smun  ;- 

fires,  ni 
feet  distant,     i 
piece  of  cordnf. 
from  each  ' 
acting  too^et:. 

B<  sides,  It  appears  t. 
Slimed  pr.inciple  '■'   '-':-•' 
ter,  in  the  c^se 
servant  has  bet- 
emj'loved  in  im: 

t  suffer 

-nd  to  i) 
one  but  himself;  a.y 
of  It--  V,    va.nt,  becai: 
lii.  elation  of  a 

latcLi  ii\  .JM tract  expre->:-  ■  .  n.i^ . 
therefore,  from  liability  for  the  r 
not  depend  exclusively  upon  the 


-.     If  it  were  made  to  depend 

c  of  the  persons  from  each  other,  the 

^ri=e,  how  near  or  how  distant  must 

Afferent  dt'partments.     In  a  black- 

"n  the  same  building-,  at  different 

of  each  other,  though  only  a  few 

■  i,  on  the  same 


■  <\  feet  distant 
voice,  and  yet 

rests  upon  an  as- 

/-vUt.     The  mas- 

> ,  because  the 

liCn  he  is 

icgligence 

.  iSter  does 

nny 


.-■f 


consiQr.u. 


s  rights  are  regi: 
ion  of  the  master 
;low  servant,  do('- 
tnat  the  servant  ha 


employer's  liability.  569 

better  means  to  provide  for  his  own  safety,  but  upon  other  grounds. 
Hence  the  separation  of  the  employment  into  different  departments 
cannot  create  that  liabihty,  when  it  does  not  arise  from  express  or 
imphed  contract,  or  from  a  responsibiHty  created  by  law  to  third 
persons,  and  strangers,  for  the  negligence  of  a  servant. 

A  case  may  be  put  for  the  purpose  of  illustrating  this  distinction. 
Suppose  the  road  had  been  owned  by  one  set  of  proprietors  whose 
duty  it  was  to  keep  it  in  repair  and  have  it  at  all  times  ready  and 
in  fit  condition  for  the  running  of  engines  and  cars,  taking  a  toll, 
and  that  the  engines  and  cars  were  ow^ned  by  another  set  of  proprie- 
tors, paying  toll  to  the  proprietors  of  the  road,  and  receiving  compen- 
sation from  passengers  for  their  carriage;  and  suppose  the  engineer 
to  suffer  a  loss  from  the  negligence  of  the  switch-tender.  We  are 
inclined  to  the  opinion  that  the  engineer  might  have  a  remedy 
against  the  railroad  corporation ;  and  if  so,  it  must  be  on  the  ground, 
that  as  between  the  engineer  employed  by  the  proprietors  of  the 
engines  and  cars,  and  the  switch-tender  employed  by  the  corporation, 
the  engineer  would  be  a  stranger,  between  whom  and  the  corpora- 
tion there  could  be  no  privity  of  contract ;  and  not  because  the  engi- 
neer w^ould  have  no  means  of  controlling  the  conduct  of  the  switch- 
tender.  The  responsibility  which  one  is  under  for  the  negligence  of 
his  servant,  in  the  conduct  of  his  business,  towards  third  persons, 
is  founded  on  another  and  distinct  principle  from  that  of  implied  con- 
tract, and  stands  on  its  own  reasons  of  policy.  The  same  reasons 
of  policy,  we  think,  limit  this  responsibility  to  the  case  of  strangers, 
for  whose  security  alone  it  is  established.  Like  considerations  of 
policy  and  general  expediency  forbid  the  extension  of  the  principle, 
so  far  as  to  warrant  a  servant  in  maintaining  an  action  against  his 
employer  for  an  indemnity  which  we  think  was  not  contemplated 
in  the  nature  and  terms  of  the  employment,  and  which,  if  established, 
would  not  conduce  to  the  general  good. 

In  coming  to  the  conclusion  that  the  plaintiff,  in  the  present  case, 
is  not  entitled  to  recover,  considering  it  as  in  some  measure  a  nice 
question,  we  would  add  a  caution  against  any  hasty  conclusion  as 
to  the  application  of  this  rule  to  a  case  not  fully  within  the  same 
principle.  It  may  be  varied  and  modified  by  circumstances  not  ap- 
pearing in  the  present  case,  in  which  it  appears,  that  no  wilful  wrong 
or  actual  negligence  was  imputed  to  the  corporation,  and  where 
suitable  means  w^ere  furnished  and  suitable  persons  employed  to  ac- 
complish the  object  in  view.  We  are  far  from  intending  to  say  that 
there  are  no  implied  warranties  and  undertakings  arising  out  of 
the  relation  of  master  and  servant.  Whether,  for  instance,  the  em- 
ployer would  be  responsible  to  an  engineer  for  a  loss  arising  from  a 
defective  or  ill-constructed  steam  engine :  Whether  this  would  de- 
pend upon  an  implied  warranty  of  its  goodness  and  sufficiency,  or 
upon  the  fact  of  wilful  misconduct,  or  gross  negligence  on  the  part 
of  the  employer,  if  a  natural  person,  or  of  the  superintendent  or  im- 


570  DUTIES   OF    PRINCIPAL   TO   AGENT. 

mediate  representative  and  managing  agent,  in  case  of  an  incorpo- 
rated company — are  questions  on  which  we  give  no  opinion.  In  the 
present  case,  the  claim  of  the  plaintiff  is  not  put  on  the  ground  that 
the  defendants  did  not  furnish  a  sufficient  engine,  a  proper  railroad 
track,  a  well-constructed  switch,  and  a  person  of  suitable  skill  and 
experience  to  attend  it ;  the  gravamen  of  the  complaint  is,  that  that 
person  was  chargeable  with  negligence  in  not  changing  the  switch, 
in  the  particular  instance,  by  means  of  which  the  accident  occurred, 
by  which  the  plaintiff  sustained  a  severe  loss.  It  ought,  perhaps, 
to  be  stated,  in  justice  to  the  person  to  whom  this  negligence  is 
imputed,  that  the  fact  is  strenuously  denied  by  the  defendants,  and 
has  not  been  tried  by  the  jury.  By  consent  of  the  parties,  this  fact 
was  assumed  without  trial,  in  order  to  take  the  opinion  of  the  whole 
court  upon  the  question  of  law,  whether,  if  such  was  the  fact,  the 
defendants,  under  the  circumstances,  were  liable.  Upon  this  ques- 
tion, supposing  the  accident  to  have  occurred,  and  the  loss  to  have 
been  caused,  by  the  negligence  of  the  person  employed  to  attend 
to  and  change  the  switch,  in  his  not  doing  so  in  the  particular  case, 
the  court  are  of  opinion  that  it  is  a  loss  for  which  the  defendants 
are  not  liable,  and  that  the  action  cannot  be  maintained. 
Plaintiff  nonsuit.^ 


VALTEZ  V.  OHIO  and  MISSISSIPPI  RAILWAY  COMPANY. 
1877.     Supreme  Court  of  Illinois.     85  111.  500. 

Mr.  Justice  Breese  delivered  the  opinion  of  the  court. 

This  was  case,  in  the  St.  Clair  circuit  court,  by  Joseph  Valtez, 
plaintiff,  and  against  the  Ohio  and  Mississippi  Railway  Company, 
defendant,  to  recover  damages  for  a  personal  injury  caused  by  the 
negligence  of  defendant's  servants.  The  questions  came  before  us 
on  a  demurrer  to  the  evidence,  which  had  been  adjudged  in  favor 
of  the  defendant,  and  a  judgment  rendered  against  plaintiff  for  the 
costs,  to  reverse  which  he  appeals,  and  makes  the  point  that  the 
demurrer  was  not  properly  framed,  and  should  have  been  overruled 
on  the  ground,  and  for  the  reason,  that  it  admitted  the  evidence, 
instead  of  the  facts  which  the  evidence  established. 

We  do  not  appreciate  the  force  of  this  objection  as  now  made,  as 
the  record  shows  the  plaintiff  voluntarily,  without  any  order  of  the 
court,  joined  in  the  demurrer,  thus  distinguishing  the  case  from  that 
of  Dormandy  v.  The  State  Bank,  2  Scam.  236.  It  is  the  office  of 
a  demurrer  to  the  evidence,  to  withdraw  the  issues  from  the  jury, 

^  See  article,  "American  Law  Concerning  Employer's  Liability,"  in  24  Am. 
Law  Rev.  175. 


1  order 


oi  tiic 
iiat  are  ■ 
j.i-.'.jitiff  was  in  ilie  ci 
•r  with  other    •  " 
I  in  East  St 
was  in  a  shv ..  ■ 
ed ;  that  the  per 
'his  car,  whi/ ' 
1  on  tlie  "d; 
not  in  use  were  ' 
:ng  and  less  dai: 
ployed,  he,  by  th<, 

._, .  -ompany,  enr.  .-;.., 

ed.    This  h  the  que 


one  sfcivoiiji 
,       :3  done  by  a 
the  master  has  seiec 
there  is  ''■•  ■''-   -  '  - 
switch  '- 
m:- iter,     riamciii  k* 

jompany,  the  ha 

ts  of  his 
-  ice  into 
many  men,  and  iiad 

ipt;-;  ut  III    .  ir'  'Vi  -.-^  ,'    ;;■ 


ii  the  usi. 


■.fior,  anse>.     xi   ■-, 
a  this  court  has  held 


/\amx. 
vj  ...  >  cind  occu 
that  one  is  nee 


the  cla; 


trat  K,  a  wc, 


'ind  tha 


ill  Liic  parii. 
by  which  t? 
to  be  state 


coi; 


-rson   Lo 

-h-  i1ep.i> 

;  :ies,  this  fact 

t     tA'    La:: 

.  of  the  whole 

>vhether. 

the  fact,  th. 

.  m  this  < 

los?  to 

OSS  for 

.  lendant 

'nr    no    r 

■c:;tcc:tppt  p  \tt  \'^^ 


PAW 


«5  il- 


costs, 

t- 

.-^"^ 

■|T1  f 

• 

vVe 

do 

nt 

tlU: 

' 

' 

co: 

of 

opeals,  and 


the  coi; 

;t,  by  Joov._,Mi    V  altez. 

'i  Railway  Compan}- 

;iy  caused  by  the 

'"sme  before  u- 

in  favor 

-.1  for  the 

'e  point  that  the 

'-  i^een  overruled 

the  evidence, 

as  now  made,  as 


tile  oiiice  oi 

■:m  the  iu"v. 


» 


EMPLOYER  S    LIABILITY.  5/1 

in  order  that  the  court  may  pronounce  the  law  upon  the  facts  ad- 
mitted by  the  demurrer.  The  defendant,  in  effect,  says  to  the 
plaintiff*,  by  demurring  to  the  evidence,  that  all  the  facts  such  evi- 
dence tends  to  prove  are  admitted  to  exist,  but  upon  those  facts 
you  are  not  entitled  to  recover,  and  on  that  we  demand  the  judg- 
ment of  the  court. 

What  are  the  material  facts  admitted  by  the  demurrer?  That 
plaintiff  was  in  the  employment  and  service  of  the  defendant,  to- 
gether with  other  servants  and  employees,  in  repairing  cars,  at  its 
depot  in  East  St.  Louis ;  that  the  usual  place  of  making  such  re- 
pairs was  in  a  shed,  into  which  one  or  more  tracks  of  the  company 
entered ;  that  the  person  in  charge  of  the  repair  gang,  one  Rein, 
directed  this  car,  which  required  new  springs  to  be  attached,  should 
be  placed  on  the  "dead  track,"  so  called  for  the  reason  that  cars 
not  in  use  were  placed  there,  and  where  there  would  be  less  switch- 
ing and  less  danger  than  in  the  shed ;  that  while  he  was  so  em- 
ployed, he,  by  the  negligence  and  carelessness  of  another  servant  of 
the  company,  employed  on  the  same  track  at  this  depot,  was  badly 
injured.  This  is  the  substance  of  the  proof,  and  the  question,  so 
often  decided  by  this  court,  of  respondeat  superior,  arises.  It  is 
unnecessary  to  cite  the  numerous  cases  wherein  this  court  has  held 
that  one  servant  cannot  recover  from  the  common  master,  for  in- 
juries done  by  a  fellow  servant  in  the  same  line  of  employment,  if 
the  master  has  selected  trusty  and  competent  servants,  and  of  this 
there  is  no  dispute.  The  accident  was  caused  by  the  driver  of  a 
switch  engine,  there  employed,  mistaking  the  signal  of  the  yard 
master.  Plaintiff  knew,  when  he  entered  into  the  employment  of 
the  company,  the  hazard  attending  his  vocation,  and,  for  the  emolu- 
ments of  his  position,  assumed  the  usual  and  ordinary  hazards  of  the 
service  into  which  he  entered.  He  knew  the  company  employed 
many  men,  and  had  a  right  to  believe  some  of  them  might  be  care- 
less and  negligent  in  the  performance  of  a  duty,  and  this  hazard  he 
voluntarily  accepted.  Those  who  are  engaged  in  the  service  of  the 
same  master,  in  carrj'ing  on  and  conducting  the  same  general  busi- 
ness, in  which  the  usual  instrumentalities  are  used,  may  justly  be  con- 
sidered fellow  servants.  A  proper  test  of  the  existence  of  this  rela- 
tion may  be  to  inquire  whether  the  negligence  of  the  one  is  likely 
to  inflict  injury  on  the  other,  as  claimed  by  appellee  in  its  argument. 
This  is  not  unlike  the  case  of  the  Chicago  and  Alton  Railroad  Com- 
pany V.  Murphy,  Admx.,  53  111.  336.  It  was  there  said,  where  the 
ordinary  duties  and  occupations  of  the  servants  of  a  common  master 
are  such  that  one  is  necessarily  exposed  to  hazard  by  the  careless- 
ness of  another,  they  must  be  supposed  to  have  voluntarily  taken 
the  risks  of  such  possible  carelessness  when  they  entered  the  service, 
and  must  be  regarded  as  fellow  servants  within  the  rule. 

It  is  very  plain  appellant  knew,  when  he  entered  the  service  of 
this  company,  he  would  be  exposed  to  the  action  of  other  servants  of 


572  DUTIES    OF    PRINCIPAL   TO   AGENT. 

the  company;  that,  on  an  emergency,  he  might  be  called  upon  to 
make  repairs,  as  in  this  case,  not  in  the  shed,  but  on  a  track,  and 
be  exposed  to  the  acts  of  engine-drivers  and  others,  whose  business 
called  them  on  to  the  same  track.  Admitting,  as  the  demurrer  does, 
all  the  facts  and  the  inferences  fairly  to  be  drawn  from  them,  there 
is  no  cause  of  action  made  out,  and  the  circuit  court  did  right  in  sus- 
taining the  demurrer,  and  its  judgment  must  be  affirmed.  See  case 
of  Illinois  Central  Railroad  Company  v.  Modglin,  ante,  p.  481, 
Judgment  affirmed \ 


DANIELS  V.  UNION  PACIFIC  RAILWAY  COMPANY. 
1890.     Supreme  Court  of  Utah.     6  Utah  357. 

Blackburn,  J. — This  is  a  suit  by  a  brakeman,  an  employee  of  the 
defendant  company,  for  an  injury  to  him  while  in  the  line  of  his 
duty  on  a  train  that  was  wrecked.  He  was  severely  injured,  and 
permanently  in  one  leg  and  one  of  his  shoulders,  so  as  to  be  unable 
to  perform  manual  labor.  The  evidence  tends  to  show  that  the  train 
on  which  the  plaintiff  was  at  work  as  brakeman  was  wrecked  by  a 
broken  wheel ;  that  there  was  an  old  crack  in  the  wheel,  which  could 
have  been  seen  by  proper  inspection ;  and  the  question  was  fairly 
submitted  to  the  jury,  and  they  found  that  this  was  negligence  in 
the  defendant  company.  We  think  the  evidence  abundantly  sup- 
ports this  finding.  It  was  the  duty  of  the  company  to  furnish  reason- 
ably safe  cars  for  the  running  trains,  and  to  have  them  inspected  with 
reasonable  care  at  proper  intervals;  and,  if  an  emplo3'ee  was  injured 
by  a  neglect  to  perform  this  duty,  the  company  is  liable  to  him  for 
the  damage  he  sustained.  On  this  branch  of  the  subject  we  see  no 
error. 

The  instructions,  as  we  think,  state  well  and  fairly  the  law  of  the 

^  In  Chicago,  etc.,  R.  R.  Co.  v.  Kneirim,  152  111.  458,  it  was  held  that  it  was 
a  question  for  the  jury  to  decide  whether  a  helper  in  a  train  yard  is  a  fellow 
servant  with  a  brakeman  on  a  train  coming  from  a  distance. 

"The  question  as  to  who  are  fellow  servants  is  a  mixed  question  of  law  and 
fact."     Gary,  J.,  in  Wilson  v.  Railway  Co.,  51  S.  Car.  79,  96. 

In  Wilson  v.  Madison,  etc.,  R.  R.  Co.,  18  Ind.  226,  the  plaintiflf,  a  general 
employee  of  the  railroad,  was  injured  while  uncoupling  freight  cars.  On 
page  230  Worden,  J.,  said :  "The  fact  that  the  plaintiff,  under  his  employment, 
had  duties  to  perform  other  than  coupling  and  uncoupling  cars,  can  make  no 
difference  in  the  case.  If  he  received  an  injury  while  in  the  performance  of 
that  service,  his  rights  can  neither  be  enlarged  nor  diminished  by  the  fact  that 
his  employment  embraced  other  ser\'ice." 

In  Specs  V.  Boggs,  198  Pa.  St.  112,  it  was  held  that  a  girl  employed  in  the 
tailoring  department  of  a  dry  goods  store  is  a  fellow  servant  of  a  boy  employed 
to  run  an  elevator  set  apart  for  the  exclusive  use  of  employees. 


I 


y/i 


and  nr 


tiu-:  it  was  1 

h'.  i;.,.  V,   ^^rvant  of  .mv: 

tti-''. ,  I'Ondent  cannot  recc 

■J.     -i^    to    who    : 

and  great  vari, 

•o  review  thci'. 
^  it  of  authority  i^ 
cr  fellow  servants,    , 
L  be  engaged  in  the  b,.,. 
■■  foreman,  be  eiiipi'..  c*]  i; 
ftment  in  wr" 
inal  relation.- 
'Otive  of  pre." 
shall  be  at 
other  ill  the 

—  i.-S  shall  bring  ..„. 

xercise  an  influL  ,  i  each  other 

'.nd  to  be  so  siti  '•  •-  labor, 

•nd  watch  the  co  .  other  i 

^s.    Railroac 
nee  in  this 
jt  in  the  same  line 
0  do  with  the  runnii.  .     , 
iuctor,  but  reports  to,  is  app' 
md  is  under  the  dire  '■        ^* 
zo  conassociation  wi* 
!.  unless  casually  : 
no  work  in  ccr; 
""  to  act  t' 
.>t  say,  t: 
!S  case,  was  a  fellow 
occurred. 

s  contended,  also,  b;. 
iiat  point  the  jury 
rovince  of  the  jnrv 
;  and  they  dou!  ■ 
"  authorized  to 
"I  one  leg  for 
■     V.H--     vholl,    .  .  .,  . 
red  entuelv  ■ 


die  same  head  of  the 


or  that 
ion,  as  li..  . 
e  of  proper 

-.-*    -■ ■'.    to    SUl'-_i  V  :.~C 

:e  and  care- 
..  203.    The 

r  of  cnrs   is 


.e  respoi 


(itieiore,  we  caiuiot  say 


y;  that, 
.  ...  .  ,  _  IS,  as  in 
be  exposed  to  the  a 
called  them  on  to  th 
all  the  facts  and  th' 
is  no  cause  of  actioi, 
taining  the  deiniiT, 
of  Illinois  Cent-  • 
Truicnnent  aflV 


on 

th  ■ 


'Irivers 


upon  1. 


■■■'  !ii  sn.s- 
See  case 


DANIEI 


FlC  RAIL 


)MPANY. 


ports  this  fi 

ab' 

re.. 

by  a  licglect  io 

the  damage  he 

error. 

nriii-.    in -it  ; 


difir-c:    ....     .i: 

that  service. 

his   rn,-.'r,vr,. 


Dloyee  of  the 

.ne  of  his 

ured,  and 

i»e  unable 

Liiai  the  train 

vv  I  c'cked  by  a 

:,  which  could 

on  was  fairly 


■  ■ .         1.  J.C.     \\  <i  ■ 

A  his  shouli 


aii  oiu  crack  in 
-section;  and  tr 

found  that  this  was  negligence  in 
■:  J.iink  ''-  . -i'l.  ,^,re  abundantly  sup- 
duty  ol  to  furnish  reason- 
'  .  inspected  with 

e  was  injured 
■  le  to  him  for 
oct  Ave  see  no 

..  jaw  of  the 

held  that  it  was 
yard  is  a  fellow 

of  law  and 

\  a  general 
cars.     On 


1  clevatoi  at-t  apaii  tur  the  exclu: 


'shed  by  the  fact  that 

girl  employed  in  the 
mt  of  a  boy  employed 
employee 


i 


employer's  liability.  573 

case,  and  no  point  is  made  on  them  in  the  brief  of  the  appellant's 
counsel ;  but  the  contention  of  the  defendant  company  is  that,  if 
there  was  negligence,  it  was  the  negligence  of  the  car-inspector,  and 
he  was  the  fellow  servant  of  the  respondent.  If  this  contention  is 
true,  the  respondent  cannot  recover,  and  this  case  should  be  re- 
versed. As  to  who  are  fellow  servants,  there  have  been  a  great 
many  and  great  variety  of  decisions,  and  it  would  serve  no  useful 
purpose  to  review  them.  However  various,  the  decisions  agree  that 
the  weight  of  authority  is  that,  in  order  to  constitute  servants  of  one 
master  fellow  servants,  within  the  rule  respondeat  superior,  they 
must  be  engaged  in  the  same  line  of  woik,  be  under  control  of  the 
same  foreman,  be  employed  and  discharged  by  the  same  head  of  the 
department  in  which  they  work;  that  they  labor  together  in  such 
personal  relations  that  they  can  exercise  an  influence  upon  each  other 
promotive  of  proper  caution  in  respect  of  their  mutual  safety;  that 
they  shall  be  at  the  time  of  the  injury  directly  co-operating  with 
each  other  in  the  particular  business  in  hand,  or  that  their  mutual 
duties  shall  bring  them  into  habitual  conassociation,  as  that  they  may 
exercise  an  influence  upon  each  other  promotive  of  proper  caution, 
and  to  be  so  situated  in  their  labor,  to  some  extent,  to  supervise 
and  watch  the  conduct  of  each  other  as  to  skill,  diligence  and  care- 
fulness. Railroad  Co.  v.  Kelly,  127  111.  637,  21  N.  E.  203.  The 
evidence  in  this  case  clearly  shows  that  the  inspector  of  cars  is 
not  in  the  same  line  of  work  with  the  brakeman.  He  has  nothing 
to  do  with  the  running  of  trains ;  is  not  under  control  of  the  con- 
ductor, but  reports  to,  is  appointed  by,  and  may  be  discharged  by, 
and  is  under  the  direction  of,  the  foreman  of  the  repair  shops ;  has 
no  conassociation  with,  and  is  rarely  seen  by,  the  brakeman  on  the 
train,  unless  casually  noticed  by  him  when  the  train  is  stopped.  They 
have  no  work  in  common ;  are  not  so  associated  in  their  labor  as 
to  be  able  to  act  together  in  a  way  promotive  of  their  mutual  safety. 
We  cannot  say,  therefore,  as  a  matter  of  law,  that  the  car  inspector, 
in  this  case,  was  a  fellow  servant  of  the  respondent  when  the  acci- 
dent occurred. 

It  is  contended,  also,  by  appellant  that  the  damages  are  excessive. 
On  that  point  the  jury  were  properly  instructed.  It  is  peculiarly 
the  province  of  the  jury  to  estimate  the  damages  in  this  class  of 
cases ;  and  they  doubtless  took  into  consideration,  what  they  were 
legally  authorized  to  do,  that  the  respondent  was  lamed  and  de- 
formed in  one  leg  for  life,  and  permanently  disabled  in  one  shoulder, 
so  that  he  was  wholly  rendered  unable  to  perform  manual  labor ; 
that  he  was  rendered  entirely  helpless  by  the  accident ;  that  he  was 
neglected  for  more  than  two  days  before  his  wounds  were  dressed; 
and  that  he  sufifered  unnecessarily  in  mind  and  body  from  his  in- 
jury. The  damages  are  seemingly  heavy,  but,  in  view  of  the  facts 
of  the  case,  we  do  not  think  they  are  so  excessive  as  to  justify 
a  renewal.    Therefore,  we  cannot  say  that  the  jury  were  influenced 


574  DUTIES    OF    PRINCIPAL   TO   AGENT. 

by  passion  or  prejudice  in  assessing  the  damages  at  the  amount  they 
did.    We  think,  therefore,  the  judgment  should  be  affirmed. 
Judgment  affirmed. 


UNION  PACIFIC  RAILROAD  COMPANY  v.  ERICKSON. 
1894.     Supreme  Court  of  Nebraska.     41  Neb.  i. 

Irvine,  C. — Erickson  was  employed  by  the  railroad  compan}^  as  a 
section  hand  and  was  engaged  in  his  work  repairing  the  road-bed  of 
the  railroad  near  Fremont,  when  a  fast  passenger  train  approached 
and  he  stepped  aside  to  let  it  pass.  As  the  train  passed  him  a  large 
piece  of  coal  fell  from  the  tender  of  the  locomotive,  struck  the 
ground  near  him  and  broke  into  smaller  pieces,  one  of  which  flew 
towards  him,  striking  him  and  causing  a  fracture  of  the  leg.  He 
brought  this  action  against  the  railroad  company,  alleging  as  negli- 
gence that  the  piece  of  coal  had  been  negligently  allowed  to  fall  from 
the  tender  while  the  train  was  running  at  a  high  rate  of  speed ;  that 
the  coal  had  been  negligently  loaded  and  negligently  permitted  to  re- 
main on  the  tender  in  a  position  rendering  it  liable  to  fall  and  to  be 
cast  off  by  the  motion  of  the  train.  The  railway  company  answered, 
among  other  things  denying  any  negligence  upon  its  part  and  al- 
leging contributory  negligence  on  the  part  of  Erickson.  There  was 
a  verdict  and  judgment  for  Erickson  for  $1,625.^    *    *    * 

The  next  proposition  is  that  Erickson  was  a  fellow-servant  of 
whoever  was  guilty  of  negligence,  and  that  the  company  is,  there- 
fore, not  liable.  Upon  this  subject  elaborate  briefs  have  been  filed 
upon  either  side  reviewing  nearly  all  the  American  authorities.  We 
shall  not  here  undertake  such  a  review.  We  are  aware  of  the  hope- 
less conflict  existing.  In  fact  a  study  of  the  question  must  convince 
any  one  that  shortly  after  the  introduction  of  railways  the  law 
entered  upon  a  slow  but  marked  period  of  transition  upon  the  subject 
of  fellow-servants.  No  definite  result  has  yet  been  reached.  Prob- 
ably the  leading  case,  both  in  America  and  in  England,  applying  the 
doctrine  of  fellow-servants  to  all  the  emploves  of  a  common  master, 
is  that  of  Farwell  v.  Boston  &  W.  R.  Co.,  4  Met.  (Mass.)  49.  All 
the  cases  holding  that  broad  doctrine  seem  to  be  based  directly  or 
indirectly  upon  the  authority  or  the  reasoning  of  Chief  Justice  Shaw 
in  that  case.  It  was  decided  in  1842,  before  the  railway  system  of 
the  country  was  developed,  before  the  existence  of  other  large  cor- 
porations employing  vast  numbers  of  men  engaged  in  the  pursuit  of 
one  general  object,  but  performing  different  functions  and  engaged 
in  many  distinct  departments.     This  state  of  aflFairs  was  then  just 

*  A  portion  of  the  opinion  is  omitted. 


could  ri"t  ihei;  be  I-j 
•^m!  i'.'      ilie  reasons 
vants  for  ini 
I  its  are  state: 
1  to  be  withr 
contract ;  ar; 
ment  of  such   a   v 
servant  is  made  c\' 
and  that  the  scruti 
..are.    The  first  rt 
'.vithout   discrimin. 
•i! ready  been  con/ 
courts  in  America 
;s  everywhere  com 
through  agents  ai 
'ie  rule  would  dis  - 
ervants,  and  this 
■-  that  of  a  vice-]v 
■  T,  the  rule  (! 
ecessarv  t'">  ■ 


i':>r  t 


niastcr 

--*  that 

10  lie 

as 

1]  '^rhc 

1-1 

es  must  be  pre- 


from  i:. 

here  th'^  ...^,..  _.  .. 
aken  as  those  of  the 
on  of  this  exception 
le  a  servant  assumes 


•^g  that  a  servr.::  !:i 
..,  to  possible  nc  '■'     ■ 
ith  a  view  to  po- 
nd upon  the  same  .".  um.; 
■  hich  probably  afford  as  grea; 
>ccupation.     Can  it  Ij 
rs  within  the  scope  ■ 
ductor,  superintends 
vn  duties  ?    To  the  a\ 
'1  between  grades  of 
-  it  was  based  upon  ■ 
ii. — that  founded  ur 
'  vation  of  IS'Jr.  Tm 

■T2U.  S.  377-    • 
'  thus  cj" 
,    o  subjec: 
^he  one,  or  .- 


uiied  U- 


0\  i^ii^l 

<licl.     ' 
Judgment  affirmec: 


r.ount  the 


UNIC'V  R\CTF 


\D  CO 


'  )  A . 


Irvine, 
section  ^^  - 
the  rn 
and  h. 


■-d  t3y  thi  company  as  a 

■""^'■'   ^'  le  road-bed  of 

•n  approached 
iS  tre  ■,  '  'lim  a  large 

of  the  truck   the 

A'hich  flew 
■>.■  leg.    He 
^n\cr  as  neg^li- 
xl  to  fall  from 
->f  speed ;  that 
-  "tted  to  re- 
•  and  to  be 
answered, 
rt  and  al- 
ii tile  part  oi  i:i.nckson.    There  was 

lrs.i',v.     for  $1,625.-^      :>:      *      * 

n  was  a  fellow-servant  of 


vviioevci    . 

f..  ctijci  tha 

Lt  the  company  is,  there- 

fore,  not  Ir 

iect  elabc'rate  briefs  have  been  filed 

upon  t ' 

>-  all  tho    • 

ithorities.    We 

shall  T 

■eviev/. 

e  of  the  hope- 

less  C( 

t  convince 

any  0. 

s   the  law 

*ijtered  upon  a 

'he  subject 

'>f  fellow-serva 

:  •  •   V         1    ^  .■  .  ,   ■ 

cd.    Prob- 

ihly  the  leadin; 

'.\i  Amerio 

: 'plying  the 

■  >e  of  fel' 

r^all  thf 

;»n  master, 

of  Far^'. 

'  <^  W.  F 

)  49.    All 

VAC    Ci. 

lirectly  or 

indirci 

i-^Hce  Shaw 

in  that  case.     : 

'vay  system  > 

the  couutj-y  w.i 

iher  large  co; 

jjorations  emp'' 

.1  in  the  pursuit  of 

one  genern!  -^" 

;.. actions  and  engaged 

in.  many  r' 

■  affairs  was  then  just 

■   i'lrtion  oi  ihc 

emitted. 

employer's  liability.  575 

arising,  and  the  vast  change  of  conditions  in  the  relations  of  master 
and  servant  was  onl}-  then  beginning  to  appear.  The  extent  of  that 
change  and  the  consequences  of  applying  old  rules  to  new  conditions 
could  not  then  be  foreseen.  In  that  case,  as  in  all  others  upon  the 
subject,  the  reasons  for  the  rule  exempting  masters  from  liability 
to  servants  for  injuries  produced  by  the  negligence  of  their  fellow- 
servants  are  stated  as  twofold:  First,  that  such  injuries  must  be  pre- 
sumed to  be  within  the  contemplation  of  the  parties  when  they  made 
their  contract ;  and  second,  that  public  policy  requires  the  enforce- 
ment of  such  a  rule,  upon  the  theory  that  by  enforcing  it  each 
servant  is  made  closely  observant  of  the  acts  of  his  fellow-servants, 
and  that  the  scrutiny  of  one  another  naturally  tends  to  efficiency  and 
care.  The  first  reason  given,  where  the  rule  is  sought  to  be  applied 
without  discrimination  to  all  servants  of  a  common  master,  has 
already  been  completely  set  aside  and  disregarded,  even  by  those 
courts  in  America  most  inclined  to  conservatism  upon  the  subject.  It 
is  everywhere  conceded  that  inasmuch  as  a  corporation  can  only  act 
through  agents  and  all  agents  are  servants,  the  logical  application  of 
the  rule  would  discharge  a  corporation  entirely  from  liability  to  its 
servants,  and  this  gives  rise  to  a  corollary  that  where  the  negligence 
is  that  of  a  vice-principal  whose  acts  must  be  taken  as  those  of  the 
master,  the  rule  does  not  apply.  The  recognition  of  this  exception 
was  necessary  to  preserve  another  rule,  that  while  a  servant  assumes 
the  dangers  incident  to  his  employment,  he  does  not  assume  dangers 
caused  by  the  negligence  of  his  master.  There  is  as  much  reason  for 
holding  that  a  servant  in  entering  an  employment  contracts  with  a 
view  to  possible  negligence  of  the  master  as  to  hold  that  he  contracts 
with  a  view  to  possible  negligence  of  the  man  who  works  beside  him 
and  upon  the  same  footing.  To  illustrate  by  reference  to  railways, 
which  probably  afiford  as  great  a  variety  of  grades  in  employment  as 
any  occupation.  Can  it  be  logically  said  that  a  section  man  in  the 
matters  within  the  scope  of  his  employment  is  less  liable  to  err  than 
a  conductor,  superintendent,  or  general  manager  with  reference  to 
his  own  duties  ?  To  the  writer's  mind,  when  the  first  distinction  was 
drawn  between  grades  of  servants,  the  force  of  the  general  rule,  so 
far  as  it  was  based  upon  contract,  was  destroyed.  As  to  the  second 
reason, — that  founded  upon  public  policy, — there  is  much  force  in 
the  observation  of  Mr.  Justice  Field  in  Chicago,  M.  &  St.  P.  R.  Co. 
V.  Ross,  112  U.  S.  377:  "It  may  be  doubted  whether  the  exemption 
has  the  effect  thus  claimed  for  it.  We  have  never  known  parties 
more  willing  to  subject  themselves  to  dangers  of  life  or  limb  because, 
if  losing  the  one,  or  suffering  in  the  other,  damages  could  be  recov- 
ered by  their  representatives  or  themselves  for  their  loss  or  injury. 
The  dread  of  personal  injury  has  always  proved  sufficient  to  bring 
into  exercise  the  vigilance  and  activity  of  the  servant."  Still  we  con- 
cede that  there  may  be  some  force  to  the  rule  so  far  as  grounded 
upon  public  policy  and  confined  to  servants  who  are,  in  the  language 


576  DUTIES    OF    PRINCIPAL    TO    AGENT. 

of  the  Supreme  Court  of  Illinois,  "consociated  by  means  of  their 
daily  duties  or  co-operating  in  the  same  department  of  duty  or  the 
same  line  of  employment."  (Chicago  &  N.  W.  R.  Co.  v.  Moranda,  93 
111.  316).  Beyond  this  line  we  can  see  no  force  in  it.  When  the  au- 
thorities are  examined  it  is  found  that  they  range  themselves  in  two 
general  classes,  those  following  the  opinion  of  Chief  Justice  Shaw 
and  those  distinguishing  between  grades  of  employment,  and  em- 
ployes in  distinct  departments  of  service.  The  principal  objection 
urged  to  the  latter  class  is  that  by  adopting  such  distinctions  the 
courts  overthrow  a  general  rule  of  easy  application  and  adopt  one 
not  susceptible  of  precise  application  and  uncertain  in  its  results. 
Possibly  this  objection  is  well  taken.  If  so,  we  can  only  say  that  it 
accords  with  the  general  spirit  of  the  common  law.  Perhaps  the 
main  distinction  between  the  civil  law  and  the  common  law  is  that  the 
civil  law  is  based  upon  well-defined  logical  rules  readily  susceptible 
of  ascertainment,  while  the  common  law  is  founded  upon  broader 
general  principles,  to  be  applied  to  the  diversity  of  human  affairs  in 
such  a  manner  as  to  favor  individual  liberty  and  to  conform  them- 
selves to  changed  conditions.  When  the  law  of  fellow-servants  was 
first  announced  business  enterprises  were  comparatively  small  and 
simple.  The  servants  of  one  master  were  not  numerous.  They 
were  all  engaged  in  the  pursuit  of  a  simple  and  cominon  undertak- 
ing. Now,  things  have  changed.  Large  enterprises  are  conducted 
by  persons  or  by  corporations  employing  vast  numbers  of  servants 
divided  into  classes,  each  pursuing  a  different  portion  of  the  work, 
and  each  practically  independent  of  the  other.  The  old  reasons  do 
not  apply  to  the  new  conditions.  We  are  not  prepared  in  this  case 
to  propose  any  set  rule  for  always  determining  when  two  employes 
are  fellow-servants  within  the  meaning  of  the  law  and  when  they  are 
not,  nor  are  we  required  for  present  purposes  so  to  do.  Erickson 
was  a  section  man.  He  was  employed  with  several  others  to  keep  the 
road-bed  and  the  track  in  repair.  The  fireman  was  employed  to  fire 
the  engine  and  perform  certain  duties  in  connection  with  the  opera- 
tion of  trains.  Some  one  was  employed  at  Grand  Island  to  load  the 
tenders  with  coal.  With  either  the  fireman  or  this  third  person 
Erickson  had  nothing  in  common,  except  that  he  drew  his  pay  from 
a  common  source,  and  that  in  a  broad  sense  they  were  all  carrying 
out  parts  of  a  vast  transportation  business.  Erickson  had  no  control 
over  either  of  the  others,  no^  opportunities  of  judging  their  com- 
petency, no  supervision  of  their  specific  acts,  and  only  by  adopting 
the  broadest  rule  as  announced  by  Chief  Justice  Shaw  could  we  hold 
them  to  be  fellow-servants.  This  rule  we  are  not  prepared  to  adopt. 
We  hold  on  the  contrary  that  employment  in  the  service  of  a  com- 
mon master  is  not  alone  sufficient  to  constitute  two  men  fellow- 
servants  within  the  rule  exempting  the  master  from  liability  to  one 
for  injuries  caused  by  the  negHgence  of  the  other,  and  that  to  make 
the  rule  applicable  there  must  be  some  consociation  in  the  same  de- 


e  iigiit  uf  qi; 
supreme  co"- 

o.  V.  Ross,  . 

ere  not  f elloA v  ... 

other  errors  disc  i 
:■.    a  of  instructions. 
r:ic  branches  of  the  c 
•.■  instructions,  as  '■'  arc  co 

lined  of,  simply  i 
Uidgment  affirmc't. 


1906.    Court  (  :  .8  Ky.  I 

LE,  J. — ''  r  the  Campbell 

court,  enter',  '  " 'e 

ed  of  appellr  i 

;ed  in  it- 

,  ,  it,  a  cor; 

Licking  river  in  ti 

""'  to  its  elevator  i; 

■  the  bank  at  tht 

iie  float  with  ari  ■■ 

■verlookinr"  tbc    =  .;"e 


d  upon  the  oth' 

rs  are  moved  u]. 

over  a  drum  r-.pe , 

■    -.ted  in  the  cr. 

ioat  is  a  horv 


he  steam  n: 
:>vel.-r);    V.-r,v 


.1. 

s  of  their 

:'ity  or  th€ 

;?i                   1  eiiipio; 

'  ^la,  93 

' '            , .    jJeyond 

\\i-  au- 

s  are  exami' 

-v.:iL,i.-ii  classe?,  '•' 

M.^      .^,.,1/        ■ 

,t.C    ollUvV 

and  those  dist: 

>,"n  grad. 

.  and  em- 

ployes  in  disti 

•  f  serviv 

Mection 

urged  to  the 

I  by  ad  • 

.IS  the 

courts 

of  eap; 

iiid  adopt  one 

not  sr 

Mtion   -■: 

in  its  results. 

Possibly  t 

•nly  say  that  it 

nr/'orr]-;    " 

Perhaps  the 
law  is  that  the 

..f.>yi'.i:t! 

lily  susceptible 

;]  law  is 

upon  broader 

ii^ 

:ie  diver' 

1  affairs  in 

1  liberty  . 

c^rm  them- 

•:  ttie  law  oi 

rvants  was 

w  ere  comp. 

small  and 

\ere  noi 

us.     They 

i  ^luiple  and 

.  undertak- 

i.    Large  enterj 

.    conducted 

b)   pc: 

.;.-•.  of  servants 

dividt' 

n  of  the  work, 

■  ■'•-  oi  the  othci. 

i  he  old  reasons  do 

•^.     We  are  not  prepared  in  this  case 

to  pn 

lys  determining  when  two  employes 

are  fell'  

eaning  0+  •'   ■  '•■'^v 

and  when  they  are 

not,  nor  are  \\ 

esent  p^ 

)  to  do.     Erickson 

was  a  section  n 

'--  ' 

'  others  to  keep  the 

road-bed  and  t 

IS  employed  to  fire 

the  eng-ine  and 

.)n  with  the  opera- 

tion  of  trains. 

T'bnd  to  load  the 

tenders  with,  coal. 

ird  person 

Erickson  had  mit'i; 

.s  pay  from 

a  common  sor.. 

re  all  carrying 

out  parts  of  a  > 

,  iiad  no  contr^  ' 

over  either  of 

'■,  lig  their  co 

pekTu:y,  no  si; 

;>  by  adopting" 

the  broadest  rt. 

could  we  hold 

them  to  be  fell' 

lueparcd  to  adopt. 

We  hold  on  ti 

service  of  a  corn- 

mon  master  i 

two  men  fellr 

servants  wt*^^' 

om  liability  to  Oi.^. 

for  injuriv 

.  and  that  to  make 

'ihe  rule  appii.i  L:-j  iii 

ere  mast  De  soni'.  cm  --cuition  in  the  same  d.^ 

employer's  liability.  577 

partment  of  duty  or  line  of  employment.  For  the  purposes  of  this 
case  we  are  content  to  follow  the  opinion  of  Mr.  Justice  Miller  in 
Garrahy  v.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  25  Fed.  Rep.  258, 
where,  in  the  light  of  quite  recent  decisions  and  of  the  mature  judg- 
ment of  the  supreme  court  of  the  United  States  in  Chicago,  M.  &  St. 
P.  R.  Co.  V.  Ross,  supra,  he  held  that  persons  occupying  such  rela- 
tions were  not  fellow-servants  within  the  meaning  of  the  rule. 

The  other  errors  discussed  in  the  briefs  relate  to  the  giving  and 
refusal  of  instructions.  If  we  are  right  in  the  conclusions  reached 
on  the  branches  of  the  case  already  discussed,  there  was  no  error  in 
the  instructions,  as  those  given  and  refused,  so  far  as  they  are  com- 
plained of,  simply  relate  to  those  questions. - 

Judgment  affirmed. 


DANA  V.  BLACKBURN. 
1906.     Court  of  Appeals  of  Kentucky.     28  Ky.  L.  695. 

Settle,  J.— This  is  an  appeal  from  a  judgment  of  the  Campbell 
circuit  court,  entered  upon  the  verdict  of  a  jury,  whereby  appellee 
recovered  of  appellant  $750  in  damages  for  personal  injuries  received 
while  engaged  in  its  service  as  a  shoveler  of  coal. 

Appellant,  a  corporation,  owns  and  operates  a  coal  elevator  on 
the  Licking  river  in  the  city  of  Newport.  The  coal  it  handles  is 
carried  to  its  elevator  in  barges  which  are  moored  to  a  float  and  the 
float  to  the  bank  at  the  foot  of  a  double  track  tramway  which  con- 
nects the  float  wath  an  engine  house  and  coal  sheds  on  an  elevated 
point  overlooking  the  river.  The  coal  is  loaded  from  the  barge 
in  cars  standinj^  on  the  float,  which  are  run  up  one  of  the  tracks  of 
the  tramway  to  the  coal  sheds  above,  and  when  emptied  of  coal  are 
returned  upon  the  other  track  of  the  tramway  to  the  float  below. 
The  cars  are  moved  up  and  down  by  means  of  a  wire  cable  which 
]>asses  over  a  drum  operated  by  a  steam  engine,  the  drum  and  engine 
being-  situated  in  the  engine  house  at  the  top  of  the  tramway. 

On  the  float  is  a  hopper  supported  by  upright  posts.  By  the  use 
of  a  steam  digger  coal  may  be  dumped  into  the  hopper,  through 
which  it  runs  into  the  cars  when  placed  beneath  the  hopper  to  receive 
it.  \\'hen  the  steam  digger  is  not  in  use  the  coal  is  thrown  by  ap- 
pellant's shovelers  from  the  barge  into  the  cars  on  the  float  with 
shovels,  and  such  was  the  manner  of  loading  the  coal  on  the  cars 

"  Cases  holding  the  "different  department"  rule  are  collected  in  26  Cyc.  1342. 
37 — Reinhard  Cases. 


578  DUTIES    OF    PRINCIPAL    TO    AGENT. 

when  appellee  received  the  injuries  complained  of.  The  shovelers 
were  paid  for  their  work  by  appellant  according  to  the  number  of 
cars  loaded  by  them  respectively.  A  shoveler  and  truckman  were 
assigned  to  each  car,  it  being  the  duty  of  the  truckman  to  aid  the 
shoveler  in  getting  the  empty  car  to  the  place  on  the  float  where  it 
could  be  loaded  by  the  shoveler  from  the  barge,  and  the  further 
duty  of  the  two  after  it  was  loaded,  the  shoveler  by  pushing  and  the 
truckman  by  pulling  it,  to  move  and  adjust  the  car  to  the  track  of 
the  tramway,  and  when  the  loaded  car  was  adjusted  to  the  track 
upon  which  it  ascends  to  the  coal  sheds,  it  was  the  duty  of  the 
shoveler  who  loaded  it  to  attach  it  to  the  wire  cable  by  dropping  the 
ring  at  the  end  of  the  cable  over  the  hook,  or  "gooseneck,"  on  the 
end  of  the  car,  after  which  the  car  would  by  the  action  of  the  engine 
and  drum  in  pulling  the  cable  be  drawn  to-  the  unloading  place 
above. 

Although  several  employes  of  appellant  were  present  when  ap- 
pellee was  injured,  some  of  whom  were  introduced  as  witnesses,  none 
of  them  saw  or  could  tell  how  it  was  done.  The  only  witness  on 
that  point  was  appellee  himself,  and  his  testimony  is  quite  con- 
fused and  indefinite. 

When  questioned  by  his  counsel  as  to  the  manner  of  receiving  his 
injuries,  he  said :  "Well,  there  was  a  certain  car  after  dinner,  and 
when  I  was  taking  it  down  to  the  run,  Mr.  Elam  Grizzell — I  think 
that  is  his  name — which  are  the  river  boss  was  taking  mud  off  the 
track  and  I  hollered  to  him  to  get  out  so  I  could  pull  the  cable  wire 
rope.  After  he  had  gotten  out  why  I  taken  hold  of  the  hook  and 
swung  to  put  it  over  the  gooseneck,  and  as  I  did  why  I  sort  of  slipped 
and  throwed  my  hand  up  against  the  car.  At  that  time  I  looked  down 
the  car  and  was  going,  I  struggled  to^  get  aside  of  it  and  found  my- 
self I  was  being  mashed  and  that  was  the  last  I  knowed  of." 

Upon  being  asked  if  he  did  not  slip  before  he  was  caught  by  the 
car,  appellee  said :  "When  I  was  feeling  for  the  cable  as  I  went  to 
hook  it,  I  slipped  and  got  against  the  car ;  that  is  the  last  I  remember 
of  it  till  I  was  being  mashed.'- 

But  taking  appellee's  testimony  as  a  whole,  and  giving  it  a  mean- 
ing most  favorable  to  him,  it  was  in  substance  that  after  loading  a 
car,  he  was  assisted  by  the  truckman  to  get  in  position  for  its  ascent 
to  the  coal  shed  and  had  just  attached  it  to  the  cable  when,  without 
notice  to  him,  it  was  started  up  the  tramway,  observing  which  he 
tried  to  get  out  of  its  way,  but  in  doing  so  slipped  and  fell,  which  oc- 
casioned his  being  caught  between  the  car  and  a  post  of  the  hopper, 
whereby  his  body  was  crushed,  several  of  his  ribs  broken,  and  other 
injuries  of  a  serious  nature  sustained  by  him.  His  testimony  fully 
establishes  the  fact  that  it  was  his  duty  to  attach  the  cable  to  the  car 
and  that  he  had  so  attached  it  before  he  was  injured.  Indeed,  the 
latter  fact  cannot  be  disputed,  for  the  car  could  not  be  moved  until 
it  was  so  attached. 


I 


l  that  he  '- 
lid  not  tell    • 
nan  or  not. 
i  by  one  otlvri    \ 
i^ineer  without  .i 
limine  room  <■ 
tell  when  tl' 

and  when  i  . 
iDre  a  sigTial 
1  by  a  signal  fro' 
was  not  at  th^^  ■ 

from  the  ti 

uidow  of  the  engine 

when  lie  air  ■.  and  no  other  witness 

d  that  he  ^^  •  time.     Tn  hrief.  there 

o  testimony  thar  • 

ir  without  a  -' 
r  was  that  < 


;y  Oi   itic  ii . 
I  not  be  sin;" 

.  ence  of  the 
,    uciated  wi<1i 
vorked  undc 
''^nving  the  i  'l 
ruckman  w: 
:  ~.  did  noi 
■t,  2?   K'- 


llee  ve>.^ 

for  the' 


:.jnr.!   '.}c   i--";;;,. 
duty  of  the  Uv 
trtickman  by  i 
the  tramwav. 
upon  whi; 
shoveler  w 
ring  at  tli 
end  of  *^ 
and  I 


r  the  hi 


inellant 


.0  shovelers 

•lumber  of 

knian  were 

'    aid  the 

here  it 

Lurther 

lud  the 

;ack  of 

■c  track 

;c  duLy  of  the 

,  dropping  the 

eneck,"  on  the 

'  -n  of  the  engine 

unloading  place 

sent  when  ap- 
es ses,  none 
A-itnc^?  on 


ns  testi. 


and  throv\ , 
the  car  an;i  ^\r• 
<e\i  I  was  boiii 


■   ner  of  receiving  his 

■AiXb  a  certain  c;:'      ""       .linner,  and 

he  run.  IMr.  E1;i  W — I  think 

"  river  boss  ig  mud  off  the 

;et  out  so  I  c  1  the  cable  wire 

why  I  taken  liolci  of  the  hook  and 

,  V  r,\fA  r.^  T  did  why  1  sort  of  shpped 

*  hat  time  I  looked  down 

•    of  it  and  found  nr- 

knowed  of." 

was  caught  by  the 

cable  as  I  went  to 

■  he  last  I  remember 


car,  he  was  as  • 
\o  the  coal  sht 
iV)*'^^"  to  hiVn 

Vr 

where 

injurii     . 
esta1)lishe.- 
and  that  ht  r 
latter  fact  cau^ 

it  \va><  so  riTfachc 


ed.  several 


ed,  for  the 


it  a  mea'^. 
......r  loading  a 

n  for  its  ascent 
'  'jii,  without 
which  he 
icll,  which  " 
of  the  hopp'. 
broken,  and  ot! 
[is  testimony  fuJ. , 
1  he  cable  to  the  car 
jured.     Indeed,  thr 
•lot  be  moved  ut: 


employer's  liability.  579 

It  is  appellee's  contention  that  he  was  injured  by  the  negligence 
of  appellant's  engineer,  that  the  latter  was  his  superior  in  authority, 
and  that  the  negligence  consisted  in  the  moving  of  the  car  by  which 
he  was  injured  without  notice  to  him  and  before  he  could  reach  a 
place  of  safety  after  attaching  the  cable  to  it.  His  own  testimony 
was  that  he  gave  no  signal  to  the  engineer  to  start  the  car,  and  that 
as  in  attaching  the  cable  to  the  car  and  when  injured,  he  was  so 
situated  that  he  could  not  see  the  truckman,  or  be  seen  by  him, 
he  could  not  tell  whether  the  car  was  moved  by  a  signal  from  the 
truckman  or  not.  Appellee  also  testified,  in  which  he  was  corrob- 
orated by  one  other  witness,  that  the  car  was  sometimes  started  by 
the  engineer  without  a  signal,  for  when  looking  from  the  window  of 
the  engine  room  out  on  the  tramway  and  float,  as  he  often  did,  he 
could  tell  when  the  cable  was  attached  to  the  car  by  its  taut  con- 
dition, and  when  in  such  condition  he  knew  the  car  could  be  moved ; 
therefore  a  signal  was  unnecessary ;  but  that  the  car  was  usually 
started  by  a  signal  from  the  truckman  to  the  engineer.  If  the  engi- 
neer was  not  at  the  window,  or  in  sight,  the  signal  was  given  by  a 
halloo  from  the  truckman. 

In  testifying,  appellee  would  not  undertake  to  say,  and  did  not 
know,  whether  or  not  the  engineer  was  at  the  window  of  the  engine 
house  when  he  attached  the  cable  to  the  car,  and  no  other  witness 
testified  that  he  was  at  the  window  at  that  time.  In  brief,  there 
was  no  testimony  that  tended  to  prove  whether  the  car  was  started 
with  or  without  a  signal.  The  only  testimony  as  to  the  moving  of 
the  car  was  that  of  appellee,  and  though  it  be  admitted  that  it  was 
started  without  notice  to  him,  and  before  he  was  ready  for  it  to  start, 
and  that  some  one  was  guilty  of  negligence  in  thus  starting  it,  the 
identity  of  the  negligent  servant  is  tmdisclosed  by  the  evidence. 
It  will  not  be  sufficient  to  say  that  appellee  was  injured  either  by 
the  negligence  of  the  engineer  or  truckman.  Manifestly,  the  truck- 
man associated  with  appellee  in  his  work  was  his  fellow-servant, 
both  worked  under  the  same  foreman  and  in  the  same  department, 
neither  having  the  right  to  command  or  control  the  other.  The  fact 
that  the  truckman  was  accustomed  to  give  signals  for  the  starting 
of  the  cars  did  not  make  him  appellee's  superior.  In  I.  C.  R.  R.  Co. 
V.  Stewart,  23  Ky.  L.  637,  it  was  held  that  a  switchman  could 
not  recover  of  the  railroad  company  because  of  the  negligence  of 
another  switchman  in  giving  improper  signals,  as  they  were  fellow- 
servants.  Indeed,  it  seems  to  be  conceded  by  counsel  for  appellee 
that  he  and  the  truckman  were  fellow-servants,  so  even  if  it  be  ad- 
mitted that  the  engineer  was  appellee's  superior  in  appellant's  serv- 
ice, as  contended  by  the  former,  as  at  most  the  testimonv  only  tends 
to  prove  that  appellee's  injuries  may  have  resulted  from  the  negli- 
gence of  the  engineer  or  truckman,  and  the  inference  that  they  re- 
sulted from  the  negligence  of  the  truckman,  a  fellow-servant,  for 
which  appellant  is  not  liable,  being  just  as  strong  as  that  they  re- 


580  DUTIES    OF    PRINCIPAL   TO   AGENT. 

suited  from  the  negligence  of  the  engineer,  a  recovery  was  un- 
authorized. The  burden  was  upon  appellee  to  prove  that  his  injuries 
were  caused  by  the  negligence  of  a  servant  of  appellant  superior  to 
himself  in  authority. 

The  mere  fact  that  he  was  injured  while  in  appellant's  service  is 
not  evidence  that  he  was  injured  by  the  negligence  of  a  superior,  or 
even  of  a  fellow-servant.  Nor  is  such  negligence  to  be  presumed, 
and  as  appellant,  in  the  absence  of  proof  of  negligence,  is  not  re- 
quired to  account  for  appellee's  injuries,  the  fact  that  it  did  not 
upon  the  trial  attempt  to  do  so,  gave  no  support  to  appellee's  con- 
tention. Louisville  Gas.  Co.  v.  Kaufman-Straus  |&  Co.,  105  Ky.  131 ; 
Hughes  V.  R.  R.  Co.,  91  Ky.  526;  Wintuski's  Adm'r  v.  L.  &  N. 
R.  R.  Co.,  14  Ky.  L.  579. 

While  in  this  state  the  common-law  doctrine  of  respondeat  su- 
perior applies  where  a  brakeman  on  a  railroad  train  is  injured  by 
gross  negligence  upon  the  part  of  the  engineer  of  the  same  train,  we 
have  been  referred  to  no  case  which  extends  this  doctrine  to  an  in- 
jury to  a  servant  caused  by  the  negligence  of  a  stationary  engineer 
employed  by  the  same  master  and  engaged  in  the  same  service  with 
the  injured  servant.  No  evidence  was  offered  in  the  case  at  bar 
which  tended  to  show  that  the  elevator  engineer  was  a  representa- 
tive of  the  master  in  respect  to  other  workmen  in  the  master's 
service  engaged  in  the  work  of  transferring  coal  from  barges  in  the 
river  to  coal  sheds  on  the  hill  above.  In  that  work,  appellee,  the 
engineer,  and  all  other  workmen  about  the  barges  and  elevators, 
were  directed  and  controlled  by  a  superintendent  in  appellant's 
employ  known  as  the  "river  boss,"  but,  according  to  the  proof  of  the 
engineer,  did  not  control  or  command  appellee  or  the  other  work- 
men about  him.  In  a  certain  sense,  appellee  and  the  truckman  had 
as  much  control  over  the  cars  as  the  engineer ;  they  filled  and  moved 
them  on  the  float  to  the  point  where  they  were  attached  to  the  cable, 
and  when  that  was  done  the  engineer  controlled  their  movements 
until  they  reached  the  coal  sheds. 

The  engineer  was,  therefore,  a  fellow-servant  of  appellee,  and  if 
the  latter  was  injured  by  his  negligence — of  which  there  was  no 
proof — svich  injury  was  incidental  to  the  work  in  which  both  were 
engaged,  and  one  of  the  ordinary  risks  pertaining  thereto.  Sherman 
&  Redfield  on  Negligence,  §  109 ;  Fort  Hill  Stone  Co.  v.  Orms' 
Adm'r.  84  Ky.  182 ;  Doyle  v.  Swift  Iron  ,&  Steel  Works,  5  Ky.  L.  59. 

We  do  not  think  the  evidence  shows  that  appellee  and  the  engineer 
were  employes  working  in  dififerent  departments  of  the  same  service, 
as  contended  by  counsel.  There  are  numerous  cases,  some  of  them 
decided  by  this  court,  holding  that  employes  working  in  a  distinct 
and  independent  department,  although  in  the  same  line  of  service, 
as  engineers  operating  dififerent  trains,  are  co-agents,  and  not  fellow- 
servants.  \^olz  V.  C.  &.  O.  Ry.  Co.,  95  Ky.  188;  L.  &  N.  R.  R.  Co. 
V.  Edmonds,  23  Ky.  L.  1049. 


enlt-j::    -e  'are   uit 
on  the  encourn  ,' 
rule    as    to    i 
It."    "=    *    * 
!"  '.rther  on  . 
additional    r 
ss  either  tI, 
aal   assi 
■.   .      ily  co-opci-' 
•   !.  or  in  the  .-: 
r  to  incite 
.  or  hv  ' 


on 

m- 

on 

rial 

•her 

•jt  the 

apply 


tew  in  numi 
es  so  close)} 
•:umscribed  i 


.  or  repoi'l  u 
ances,  all  s? 
-servants  in 
:.ig  appellant  ; 
our  opinion  the 
'•  iction  asked 
3  testimony, 
the  reason- 
•;ded  for  a  in  \ 
-inion. 

ole  court  sitti'i.r 
\^e  Nnnn  di 
'"     engineer 


ijpellee  received  his 

area  of  operations 

er  all  was  required. 

;  ■  .ite  with 

by  €x- 

ir- 

•vi 


J*^ 


ri,  the  ir 

.    Theb-i 

wervj  ^;HUsed  by  the 

iiiinself  in  authority 

The  mere  fact  t\' 
not  evidence  that  h 
even  of  a  fellow-s. 
and  as  appellor 
quired  to  acc<  - 
upon  the  trial 
tention.    Lori 
Hughes  V 
R.  R.  Co.,  i,  r..y.  '. 

While  in  this  «t 


as  much  contt'  >; 
them  on  t' 
and  when 
until  they  reached 
The  engineer  w: 
the  latter  was 
proof — such  i; 
en  Pa  lied,  and  c 


Vv'e  do  not  i' 
w  ere  employe-" 
as  content" 
decided  b;     > 
and  indooendr 


ured  while 


of  plVrtf  !.■ 

injuries,  tl 
-e  no  su' 

,  'rnnn-^t' 


aon-law  doci 


od  in  th 

the  elevator  engi 

lect  to  other  -wc 

oi  ^ransferrinsf 


'  was  un- 
:.is  injuries 
superior  to 

vice  is 
lor,  or 
limed, 
IS  not  re- 
it  did  not 
appellee's  con- 
.'105  Ky.  131; 
"r  v.  L.  &  N. 

espondeat  sur- 
injured  by 
c  train,  we 
.<  to  an  in- 
y  engineer 
•  rvice  with 
ase  at  bar 
representa- 
■■'  master's 
•ge?  in  the 


e.     In  thciL  work,  appellee,  the 

bout  the  barges  and  elevators, 

a   supeinntendent   in   appellant's 

,    !)Ut,  according  to  the  proof  of  the 

nimand  appellee  or  the  other  work- 

■-.-'■-     ■■--'-■  and  the  truckman  had 

:  thev  filled  and  moved 

■"ed  to  the  cable, 

eir  movements 

/f  nnnellee,  and  if 

re  was  no 

both  were 

.     Sherman 

Lo.  V.  Orms' 

«   5  Ky.  L.  59. 

•■"jer 

';e, 

some  of  them 

l.iUg  in  a  distinct 

me  line  of  service, 

" "  and  not  fello"; 

i-N.R.  R.  ( 


here  ar 


employer's  liability.  581 

In  discussing  the  different  department  doctrine,  McKinney  on 
Fellow  Servants,  p.  168,  §  74,  says :  "The  different  department  lim- 
itation or  doctrine  of  consociation,  seems  to  be  founded  entirely  on 
the  fact  that  servants  in  different  departments  of  a  large  industrial 
enterprise  are  unable  to  exercise  any  influence  upon  one  another 
on  the  encouragement  of  caution,  and  the  supposed  reasons  for  the 
rule  as  to  fellow-servants  failing,  the  courts  refuse  to  apply 
it."    *    *    * 

Further  on  in  the  same  section  (74),  page  173,  the  author  pre- 
sents additional  reasons  for  the  doctrine  in  question  as  follows : 
"Unless  either  their  duties  are  such  that  they  usually  bring  about 
personal  association  between  such  servants,  or  unless  they  are 
actually  co-operating  at  the  time  of  the  injury  in  the  business  in 
hand,  or  in  the  same  line  of  employment,  they  have  generally  no 
power  to  incite  each  other  to  caution  by  counsel,  exhortation  or  ex- 
ample, or  by  reporting  delinquencies  to  the  master." 

The  principles  on  which  the  separate  department  rule  rests  do  not 
apply  to  this  case.  Appellant's  plant  is  a  small  one,  and  its  opera- 
tives few  in  number.  They  were  at  the  time  appellee  received  his 
injuries  so  closely  associated  in  work  and  the  area  of  operations 
so  circumscribed  that  but  one  superintendent  over  all  was  required. 
Each  employe  had  an  opportunity  to  observe  and  communicate  with 
his  fellow-servants,  to  caution  them  by  counsel,  incite  them  by  ex- 
ample, or  report  their  delinquencies  to  the  master.  Under  such  cir- 
cumstances, all  save  the  superintendent  were  on  an  equality,  and 
fellow-servants  in  appellant's  employ.  We  can  find  no  grounds  for 
holding  appellant  responsible  in  damages  for  appellee's  injuries,  and 
in  our  opinion  the  trial  court  should  have  granted  the  peremptory 
instruction  asked  by  appellant's  counsel  at  the  conclusion  of  ap- 
pellee's testimony.^     *     *     * 

For  the  reasons  indicated  the  judgment  is  reversed  and  cause 
remanded  for  a  new  trial  and  further  proceedings  consistent  with 
the  opinion. 

Whole  court  sitting. 

Judge  Nunn  dissents  from  so  much  of  the  foregoing  opinion  as 
holds  the  engineer  a  fellow-servant  of  the  appellee. - 

^  A  portion  of  the  opinion  is  omitted. 

"  "The  practical  difficulty  in  trying  to  enforce  the  department  doctrine  is  that 
it  is  nowhere  stated  of  what  the  departments  shall  he  composed.  The  term 
or  name  is  employed  as  expressive  of  a  class,  but  there  has  been  no  attempt 
to  classify.  The  result  is  contrary  judgments  upon  the  same  facts,  an  irrecon- 
cilable contrariety  of  opinion,  with  a  natural  and  to-be-expected  confusion  in 
the  law,  with  no  better  or  more  satisfactory  results  to  either  the  master  or 
servant  than  were  attained  before  the  doctrine  was  announced."  Marshall,  J., 
in  Grattis  v.  Kansas  City,  etc.,  R.  R.,  153  Mo.  380,  395. 


582  DUTIES    OF    PRINCIPAL    TO   AGENT. 

INDIANAPOLIS  &  GREENFIELD  RAPID  TRANSIT  COM- 
PANY V.  FOREMAN. 

1903.     Supreme  Court  of  Indiana.     162  Ind.  85. 

Monks,  J. — Appellee  brought  this  action  against  appellant  and 
the  Kirkpatrick  Construction  Company,  a  corporation,  to  recover  for 
a  personal  injury  alleged  to  have  been  caused  by  the  negligence  of 
said  corporations.  The  defendants  jointly  filed  a  demurrer  to  each 
paragraph  of  the  amended  complaint,  and  each  defendant  filed  a 
separate  demurrer  to  each  paragraph  of  the  complaint.  These  de- 
murrers, which  challenged  each  paragraph  of  the  complaint  for  want 
of  facts,  were  overruled  by  the  court,  to  which  ruling  the  defend- 
ants "jointly  and  separately  excepted."  A  trial  of  said  cause  re- 
sulted in  a  general  verdict  against  appellee  as  to  the  Kirkpatrick 
Company  and  in  favor  of  appellee  against  appellant.  Appellant  filed 
a  motion  for  a  new  trial,  which  was  overruled,  and  judgment  was 
rendered  on  the  verdict  in  favor  of  appellee. 

The  errors  assigned  call  in  question  the  action  of  the  court  in 
overruling  (i)  the  joint  demurrer  of  appellant  and  said  construction 
company  to  the  amended  complaint,  (2)  the  separate  demurrer  of 
appellant  to  each  paragraph  of  the  amended  complaint,  and  (3)  ap- 
pellant's motion  for  a  new  trial.  The  amended  complaint  is  also 
challenged  by  an  assignment  that  the  same  "does  not  state  facts 
sufficient  to  constitute  a  cause  of  action." 

Appellee  insists  that  appellant's  assignment  of  errors  predicated 
upon  the  exception  taken  by  appellant  to  the  rulings  on  the  demur- 
rers to  each  paragraph  of  the  complaint  presents  no  question  as  to 
the  sufficiency  of  the  paragraphs  thereof,  citing  City  of  South  Bend 
V.  Turner,  156  Ind.  418,  421,  54  L.  R.  A.  396,  83  Am.  St.  200.  It 
will  be  Deserved  that  in  the  case  cited  the  exception  was  joint, 
while  in  this  case  the  defendants  "jointly  and  separately  excepted." 
7t  is  clear,  therefore,  that  the  case  cited  is  not  in  point  here. 

The  first  paragraph  of  the  amended  complaint  proceeds  upon  a 
common-law  liability.  Appellant  was,  on  May  27,  1901,  "a  cor- 
poration owning  and  operating  an  interurban  street  railway  extend- 
ing from  Irvington  to  Greenfield,  in  this  state,  and  was  a  com- 
mon carrier  of  passengers  for  hire.  On  said  day  appellee  was  an 
employe  of  appellant  as  a  common  laborer,  and  was  engaged  with 
divers  others  in  constructing  a  spur  from  appellant's  track  to  Spring 
Lake,  a  distance  of  three-fourths  of  a  mile.  Appellant  had  in  use  on 
said  day  a  car  known  as  a  work  car,  which  had  been  and  was  used  in 
carrying  its  employes  to  divers  points  along  said  road  where  they 
were  engaged  and  employed  by  appellant  in  building,  maintaining, 
and  repairing  its  said  line  of  road.  After  said  day's  work  had  been 
finished,  at  about  6:30  p.  m.,  appellee,  with  divers  other  employes 
of  appellant,  entered  said  work  car  on  said  spur  for  the  purpose  of 


I 


wit.  th;: 


thar  the  ^oll'^Mn'    . 
t!  ■  ence  an 

1,.  -senq-er-' 

it  is  also  ai' 
i-.M,.  ilee  was  t-:,.    _ 
;  nd  had  no  c 
•\t  to  or  a  p ; 
vants  in  cha^ 
rs   with    '.  ' 
ere  wit'^ 
ited  with  ihi 

.  said  passt'i:  acI 

^  charge  of  said  \  ^oi,  bvu  was  simply 

-  reenter  therer-  \i,e] lee  says  that 

naragraph  of  on-law  lia- 

"  and  that  tl;  '  '■-'-  his 

was  occasi'  ■■  'is 

my,  W'hose  ui. 
hose  of  the  . 
,  7  Ind.  43^^. 
\as  held  in  the 
'..  5  Ind.  339,  <>' 
to  an  emplo\  > 
employes  oi 
1  with  whiv'i. 
_  irtment  with 
er,  were  overrn' 
I,  31  Ind.  174.  ! 
:::f  said  rule:  "Bir. 
•    -a  liability  in 
t  cases ;  and 


12,  Hi   !  xeitnc: 


the  Kirkpatric' 
a  personal  inj-, 
said  corporati' 
paragraph  of 
separate  deirv 
murrers,  v 
of  fact.,.     . 


rers  i 

the  su„.  ..... 

V.  Turner,  15^ 

will  \><='.   Dbservm  a.>r 

while  in  this  case  •  is  " 

7t  is  clear,  the- 
The  first  p.. 
common-law  liability, 
ppration  owning  and  ■ 
ing  from  Irvingti 
"^""  carrier  of  p^i 
ve  of  appcP 
''  crs  in  con-^i  m:  inr^  .n  si)Ui 
tanoe  nf  three-fourths  of 
,  n  as  a  work 
c:  yes  to  diver  ^ 

were  ■■  and  employed  b 

and  r-i  -.., ..  ^  as  said  line  of  r< 
finished,  at  abc>ut  6:30  p.  m.,  :. 


■\t  and 

,  er  for 

nee  of 

(1  each 

:ni  filed  a 

These  de- 

oaragra  nt  for  want 

court,  '  ,,  .he  defend- 

cepted."     I^  '   said  caiise  re- 

iinst  appellc  iie  Kirkpatrick 

v-e  against  ay  Appellant  filed 

'■  was  overruicij  Igment  was 

'  of  appelke. 

the  act  )e  court  in 

-,'ellant  a  mstruction 

laiht,  {2)  til  cnmrrer  of 

.  .  ihe  amended  -  .'.d  (3)  ap- 

trial.     The  amende  ,  Int  is  also 

nt  that  the  same  "d<:c,<  u-.n  state  facts 

j^e  of  action." 

"    It's  assignment  of  errors  predicated 

reliant  to  the  ruhngs  on  the  demur- 

:  presents  no  question  as  to 

. ,  citing  City  of  South  Bend 

\.  396.  83  Am.  St.  200.     It 

a.>'*  ..ted  the  exception  was  joint, 

!s  "jointly  and  separately  excepted." 

1  '  '  i^oint  here 


proceeds  upon  a 

^i,  "a  cor- 

V  ay  extend- 

hI  was  a  com- 

.ir.,.iiee  was  an 

.<aged  with 

to  Spring 

i  in  use  on 

iid  was  used  in 

ad  where  they 

(ding,  maintaining, 

ty's  work  had  been 

ers  other  employes 

,'  -  *•!-;•  purpose  ^''" 


employer's  liability.  583 

being-  carried  to  Greenfield,  where  he  resided.  While  he  was  in 
said  car,  and  the  same  was  standing  on  a  switch  of  appellant's  road, 
one  of  the  appellant's  passenger-cars  in  charge  of  its  employes  ap- 
proached said  switch  from  the  west  at  a  high  and  dangerous  rate  of 
speed,  to  wit,  thirty  miles  per  hour,  and  ran  into  and  upon  said 
switch  and  collided  with  said  work  car  and  injured  appellee."  In 
addition  to  the  averments  in  the  first  paragraph  of  the  amended  com- 
plaint showing  the  above  facts,  there  are  other  allegations  showing 
that  the  collision  and  consequent  injury  of  appellee  were  caused  by 
the  negligence  and  carelessness  of  appellant's  employes  in  charge 
of  said  passenger-car  in  not  obeying  the  rules  of  appellant. 

It  is  also  alleged  in  said  first  paragraph  that  "the  work  in  which 
appellee  w^as  engaged  was  common  labor  upon  the  tracks  of  appel- 
lant, and  had  no  connection  with,  nor  was  the  same  in  any  manner 
incident  to  or  a  part  of  the  work  or  employment  of  said  motorman 
or  servants  in  charge  of  the  passenger-car ;  nor  were  the  squad  of 
laborers  with  whom  said  appellee  was  working  as  aforesaid,  and 
who  were  with  him  in  said  work-car,  in  any  manner  connected  or 
associated  with  the  said  servants  of  appellant  in  charge  of  said  work- 
car  or  said  passenger-car  which  collided  with  it ;  that  appellee  had 
no  charge  of  said  work  car  or  the  operation  thereof,  but  was  simply 
a  passenger  thereon  at  the  time  of  the  accident."  Appellee  says  that 
this  "paragraph  of  the  complaint  proceeds  upon  a  common-law  lia- 
bility," and  that  the  same  is  sufficient,  because  it  is  alleged  that  his 
injury  was  occasioned  by  the  negligence  of  other  servants  of  the 
company,  whose  duties  were  not  common  nor  in  the  same  department 
witli  those  of  the  appellee,  citing  Fitzpatrick  v.  New  Albany,  etc., 
R.  Co.,  7  Ind.  436. 

It  was  held  in  the  case  cited  and  in  Gillenwater  v.  ^ladison,  etc., 
R.  Co.,  5  Ind.  339,  61  Am.  Dec.  loi,  that  a  railroad  company  is 
liable  to  an  employe  for  an  injury  occasioned  by  the  negHgence  of 
other  employes  of  the  company  where  the  duties  of  the  latter,  in 
connection  with  which  the  injury  happens,  are  not  common  or  in  the 
same  department  with  those  of  the  injured  servant.  Those  cases, 
however,  were  overruled  on  this  point  in  Columbus,  etc.,  R.  Co.  v. 
Arnold,  31  Ind.  174,  183,  99  Am.  Dec.  615,  where  it  was  said  con- 
cerning said  rule :  "But  this  limitation  of  the  exemption  of  the  com- 
pany from  liability  in  such  cases  is  not  recognized  in  any  of  the 
subsequent  cases ;  and  it  is  now  settled  in  this  state,  that  the  em- 
ployer is  not  liable  for  an  injury  to  one  employe,  occasioned  by  the 
negligence  of  another  engaged  in  the  same  general  undertaking. 
Ohio,  etc.,  R.  Co.  v.  Tindall,  13  Ind.  366;  Wilson  v.  Madison,  etc.. 
R.  Co.,  18  Ind.  226;  Slattery  v.  Toledo,  etc.,  R.  Co.,  23  Ind.  81; 
Ohio,  etc..  R.  Co.  v.  Hammersley.  28  Ind.  371.  In  Slattery  v. 
Toledo,  etc.,  R.  Co.,  supra,  Worden,  J.,  quotes,  with  approbation, 
from  the  decision  in  Wright  v.  New  York  Cent.  R.  Co.,  25  N.  Y. 
562,  as  follows :  'Neither  is  it  necessary,  in  order  to  bring  a  case 


584  DUTIES    OF    PRINCIPAL   TO   AGENT. 

within  the  general  rule  of  exemption,  that  the  servants,  the  one 
that  suffers  and  the  one  that  caused  the  injury,  should  be  at  the 
time  engaged  in  the  same  operation  or  particular  work.  It  is 
enough  that  they  are  in  the  employment  of  the  same  master,  engaged 
in  the  same  common  enterprise,  both  employed  to  perform  duties  and 
services  tending  to  accomplish  the  same  general  purposes,  as  in  main- 
taining and  operating  a  railroad,  operating  a  factory,  working  a  mine, 
or  erecting  a  building.  The  question  is  whether  they  are  under  the 
same  general  control.'  To  the  same  effect  is  the  case  of  Manville  v. 
Cleveland,  etc.,  R.  Co.,  11  Ohio  St.  417,  where  it  said,  that  'those 
employed  in  facilitating  the  running  of  the  trains,  by  ballasting  the 
track,  removing  obstructions,  and  those  employed  at  stations,  at- 
tending to  switches,  and  other  duties  of  a  like  nature  upon  the 
road,  as  well  as  those  upon  the  trains,  operating,  may  all  be  well  re- 
garded as  fellow-servants  in  the  common  service.'  " 

In  Goniiley  v.  Ohio,  etc.,  R.  Co.,  ^2  Ind.  31,  a  laborer,  whose  duty 
was  to  assist  in  repairing  the  track,  etc.,  while  being  carried  to  his 
work  on  a  hand-car,  was  killed  by  a  collision  with  a  freight  train. 
His  death  was  occasioned  by  the  negligence  of  the  engineer  in  charge 
of  the  engine  and  said  train.  The  court's  attention  was  called  to  the 
cases  of  Gillenwater  v.  Madison,  etc.,  R.  Co.,  supra,  and  Fitzpatrick 
V.  New  Albany,  etc.,  R.  Co.,  supra,  and  on  page  33  it  was  said :  "The 
cases  cited  by  counsel  were  not  overlooked,  but  were  referred  to 
and  explained  'or  disapproved  in  the  later  cases.  Slattery  v.  Toledo, 
etc.,  R.  Co.,  23  Ind.  81  ;  Columbus,  etc.,  R.  Co^.  v.  Arnold,  31  Ind. 
174;  Wilson  V.  Madison,  etc.,  R.  Co.,  18  Ind.  226;  Pittsburgh,  etc., 
R.  Co.  V.  Ruby,  38  Ind.  294 ;  Sullivan  v.  Toledo,  etc.,  R.  Co.,  58 
Ind.  26.  These  later  cases  are  certainly  not  consistent  with  the 
ground  on  which  it  is  sought  to  have  a  right  of  recovery  in  the  ap- 
pellant. If  a  hardship  results  from  the  application  of  the  rule  that 
an  employer  is  not  liable  to  one  employe  for  an  injury  caused  by 
another  employe  engaged  in  the  same  general  undertaking,  it  is 
more  fitting  that  the  legislature  be  invoked  to  give  a  remedy,  than 
that  this  court  should  undertake  to  introduce  doubtful  exceptions  to 
a  rule  so  clearly  established."  In  Evansville,  etc.,  R.  Co.  v.  Barnes, 
137  Ind.  306,  310,  the  rule  as  stated  in  Columbus,  etc.,  R.  Co.  v. 
Arnold,  supra,  is  quoted  with  approval.  The  following  cases  are 
to  the  same  eff'ect :  Thacker  v.  Chicago,  etc.,  R.  Co.,  159  Ind.  82,  85, 
59  L.  R.  A.  792,  and  cases  cited ;  Thompson  v.  Citizens'  St.  R.  Co., 
152  Ind.  461,  469,  and  cases  cited;  Justice  v.  Pennsylvania  Co.,  130 
Ind.  321  ;  Spencer  v.  Ohio,  etc.,  R.  Co.,  130  Ind.  181,  184,  and  cases 
cited;  Clarke  v.  Pennsylvania  Co.,  132  Ind.  199,  17  L.  R.  A,  811, 
and  cases  cited;  Capper  v.  Louisville,  etc.,  R.  Co.,  103  Ind.  305; 
Indiana,  etc.,  R.  Co.  v.  Dailey,  no  Ind.  75,  79,  80,  and  cases  cited; 
Sullivan  v.  Toledo,  etc.,  R.  Co.,  supra;  Woollen  Trial  Proc, 
§§  135O'  1351  '-  Beach,  Contrib.  Neg.,  §  331.  It  is  clear  under  the 
cases  cited  that  appellee,  an  employe  of  appellant,  engaged  in  com- 


1 


.  track,  wab 


ley.  28  Ind. 
cited ;  Capy." 
■  '\  etc.,  R.  Co. 
ases  cited;  Gon;; 
R.  Co.,  27  Ind.    • 
City  R.  Co.,  70  \ 
Eastern  T' 
^toivz  V.r. 

27,  Pa.  St.  3.- 
\n.  Rep.  36. 
The  allegation  \ 
no  connection. wit"; 
lo  or  a  part  of ,  tb': 
■V:  chu'-c,(t  of  the  !'. 
'■■]■:       .:  .ssenger  or 
;  him  a  duty, 
"IIS  of  the  pi 
annot  control  the 
■ow-servant   of   th 
irial  Proc,  §  1037. 

■t  is  true  that  i*^     ■ 
.    .  servant  who  '• 
cause  of  the  uij 
lid  by  the  exerci 
.  icy,  and  the  injv 
■  ibuting:^  to  hi-  i 
It  of  such  ii! 
I   injured  enijuw. 
'W-servant  by  wl' 
ice  with  such  kn^ 
'lid  by  the  excru 
as.sumes  th. 
\.  R.  Co  V.  ■ 


lotomian  or  servants 

-  that  he  was  sim- 

!i  that  apT5cllant 


D'Jin-.^    Oi-    PRINC! 


w'thin  the  general  n*!?  of 

ex'^niption. 

■itits,  the  one 

s  and  tl 

be  at  the 

,^  g^ed   in 

rk.      It   is 

.':  that  the}'  ar. 

!•,  engaged 

•  .  L.  >„  sanie  comnr 

IjOiil    V   li 

;Hes  and 

services  tending-  to 

^e  same  v 

main- 

taining  and  op( 

:  mine, 

or  erecting  a  i 

ier  the 

same  general  > 

effect  1 

.  ille  V. 

Cleveland,  etc 

•   4ir.  A\' 

.   ;   'those 

employed  in  f 

iimg  of 

ballasting  the 

track,  renv  '.  > 

nd    thrw_ 

It  stations,  at- 

tending  t' 

..  ;       ■','■_-.    i;;' 

iture  upon  the 

road,  a    - 

all  be  well  r 

garde 

'2  iiid.  -,  whose  duty 

'  .  etc.,  w!  fried  to  his 

by  a  collision  witii  a  ireight  train. 

negligence  of  the  engineer  in  charge 

he  court's  attention  was  called  to  the 

,  etc,  R,  Co.,  supra,  and  Fitzpatrick 

'  a,  and  on  page  33  it  v  as  said  :  "The 

>t  overlooked,  hv 

the  liter  cases. 

.,  R.  Co 


>;  Tnd.   J 


do,  etc. 


•ef erred  to 
V.  Toledo, 
!d,  31  Tnd. 
burgh,  etc., 
R.  Co.,  58 


ground  or. 
pellant.    li  a 
an  employer  • 
another  c 
more  fittit.. 
lint  Ml':-  court  she- 
i.  vvk  ;-•"  clearly  es 
T37  hul.  306,  310. 
Vrnold,  supra,  is 
10  the  same  effect : 

R.  A.  792.  and  Cc.:.^;.^  Cite 
!.  461,  469,  and  rases  cii. 
Spencer  v.  <■  'hio,  etc.,  R. 
^  ke  V.  Peiunsylvania  Co.. 
cited ;  Capper  v.  Louis\ 
'*    ' 'o.  V.  Dailey,  ^  ' 
'a,    etc.,    R. 

ca-t;. 


Sullivan 

3  certain^;    ,,v,m   consistent  with  the 

!  have  a  right  of  recovery  in  the  ap- 

hcation  of  the  rule  that 

or  an  injury  caused  by 

•  eral  undertaking,   it  is 

1  LO  give  a  remedy,  than 

ntroduce  doubtful  exceptions  to 

, :,.-.;n,-    :.ir    V    r,-v  v.  Barnes, 

,  R.  Co.  v. 

.  Hig  cases  are 

i  ^o  'ind.  82,  85, 

St.  R.  Co., 

:ia  Co.,  130 

184,  and  cases 

L.  R.  A.  811, 

103  Ind.  305 ; 

'  Mid  cas^  cited  ; 

'ollen    Trial    Proc., 

r  under  the 

::ed  in  com- 


employer's  liability.  585 

mon  labor  upon  its  track,  was  a  fellow-servant  with  those  in  charge 
of  the  passenger-car. 

It  is  a  general  rule  in  this  state  that  employes,  while  being  trans- 
ported to  and  from  their  work  on  the  cars  of  trains  of  their  employ- 
ers, are  fellow-servants  of  those  engaged  in  the  same  general  under- 
taking, and  if  injured,  while  being  so  carried,  by  the  negligence  of 
a  fellow-servant,  the  employer  is  not  liable  therefor.  Bailey  Masters' 
Liability  283,  360,  361,  and  cases  cited.  Ohio,  etc.,  R.  Co.  v.  Ham- 
mersley,  28  Ind.  371  ;  Wilson  v.  Madison,  etc.,  R.  Co.,  supra,  and 
cases  cited ;  Capper  v.  Louisville,  etc.,  R.  Co.,  supra,  and  cases  cited ; 
Ohio,  etc..  R.  Co.  v.  Tindall,  13  Ind.  366,  369,  74  Am.  Dec.  259,  and 
cases  cited ;  Gormley  v.  Ohio,  etc.,  R.  Co.,  supra ;  Bowles  v.  Indiana 
R.  Co.,  27  Ind.  App.  672,  675,  and  cases  cited;  Ewald  v.  Chicago 
City  R.  Co.,  70  Wis.  420,  36  N.  W.  12,  5  Am.  St.  178;  Oilman  v. 
Eastern  R.  Corp.,  10  Allen  233,  87  Am.  Dec.  635 ;  Gillshannon  v. 
Stony  Brook  R.  Corp.,  10  Cush.  22^ :  Rvan  v.  Cumberland  Vallev  R. 
Co.,  23  Pa.  St.  384;^  Vick  v.  New  York,  etc.,  R.  Co.,  95  N.  Y.  267, 
47  Am.  Rep.  36. 

The  allegation  that  the  work  appellee  was  engaged  in  doing  had 
no  connection  with,  nor  was  in  any  way  connected  with  or  incident 
to  or  a  part  of,  the  work  or  employment  of  the  motorman  or  servants 
in  charge  of  the  passenger-car,  and  the  allegation  that  he  was  sim- 
ply a  passenger  on  the  work-car,  and  the  allegation  that  appellant 
owed  him  a  duty,  and  was  bound  to  carry  him  safely,  are  mere  con- 
clusions of  the  pleader,  and  are  not  admitted  by  the  demurrer,  and 
cannot  control  the  special  facts  alleged,  which  show  that  he  was  a  fel- 
low-servant of  those  in  charge  of  the  passenger-car.  Woollen 
Trial  Proc,  §   1037. 

It  is  true  that  if  an  employe  is  injured  by  the  negligence  of  a  fel- 
low-servant who  is  incompetent,  and  this  incompetency  is  the  proxi- 
mate cause  of  the  injury,  the  employer  is  liable  therefor  if  he  knew, 
or  could  by  the  exercise  of  ordinary  care  have  known,  of  such  incom- 
petency, and  the  injured  employe  was  not  guilty  of  any  negligence 
contiibuting  to  his  injur\%  and  did  not  know  and  could  not  have 
known  of  such  incompetency  by  the  exercise  of  ordinary  care.  For 
if  an  injured  employe  has  knowledge  of  the  incompetency  of  his 
fellow-servant  by  whose  negligence  he  is  injured,  and  enters  the 
service  with  such  knowledge,  or  continues  therein  after  he  obtains, 
or  could  by  the  exercise  of  ordinary  care  have  obtained,  such  knowl- 
edge, he  assumes  the  risks  incident  to  such  incompetency.  Lake 
Shore,  etc..  R.  Co.  v.  Stupak,  108  Ind.  i.  5,  6,  and  cases  cited  :  Louis- 
ville, etc.,  R.  Co.  V.  Sandford,  117  Ind.  265-269,  and  cases  cited; 
Indianapolis,  etc.,  R.  Co.  v.  Watson,  114  Ind.  20.  25,  27,  5  Am.  St. 
578,  and  cases  cited ;  Indiana,  etc.,  R.  Co.  v.  Dailey,  supra;  Louis- 
ville, etc.,  R.  Co.  V.  Kemper,  147  Ind.  561,  565-567,  and  cases  cited; 
Kroy  V.  Chicago,  etc.,  R.  Co.,  32  Iowa  357 ;  Woollen  Trial  Proc., 
§§  1347,  1348,  1352.     No  such  facts  were  alleged  in  said  paragraph. 


586  DUTIES    OF    PRINCIPAL   TO   AGENT. 

It  follows  that  the  court  erred  in  overruling  the  demurrer  to  the 
first  paragraph  of  the  amended  complaint.^     *     *     *  - 
Judgment  reversed. 


YEOMANS  V.  CONTRA  COSTA  STEAM  NAVIGATION 

COMPANY. 

1872.     Supreme  Court  of  California.     44  Cal.  71. 

Appeal  from  the  district  court  of  the  twelfth  judicial  district,  city 
and  county  of  San  Francisco. 

The  following  is  the  eighth  instruction  referred  to  in  the  opinion : 

'Tf  you  believe  from  the  evidence  that  an  explosion  of  defendants' 
boiler  took  place  at  their  depot  on  the  27th  day  of  August,  1866,  and 
the  said  plaintifif,  while  standing  on  the  platform  of  defendants,  in 
the  depot  where  passengers  usually  went,  in  getting  on  and  off  the 
cars,  that  the  plaintiff,  while  in  that  position,  was  then  intending  to 
take  passage  on  said  cars,  and  about  to  step  into  the  baggage  car, 
where  he  had  often  and  usually  ridden ;  that  there  was  no  regulation 
of  defendants  against  his  going  in  the  baggage  car,  and  the  plaintiff, 
while  in  this  position,  was,  without  his  fault,  injured  by  an  explosion 
of  defendants'  boiler,  then  the  plaintiff  has  made  out  a  prima  facie 
case,  and  is  entitled  to  recover,  unless  the  defendants  have  shown 
that  the  explosion  of  the  boiler  was  the  result  of  inevitable  casualty, 
or  from  some  cause  which  attentive  care  could  not  prevent." 

NiLES,  J. — The  plaintiff  recovered  a  judgment  for  damag'es  for 
injuries  received  from  the  explosion  of  a  boiler  upon  a  locomotive 
owned  by  the  defendants. 

The  appeal  is  taken  from  the  judgment  and  from  the  order  over- 
ruling defendants'  motion  for  a  new  trial. 

At  the  time  of  the  injury  the  defendants  were  common  carriers  of 
freight  and  passengers  between  San  Francisco  and  Petaluma,  using 
steamboats  between  San  Francisco  and  Rudesel's  Landing,  and  be- 
tween the  latter  and  Petaluma  a  small  locomotive  and  train  of  cars. 
There  was  no  separate  charge  for  passage;  it  was  all  one  line  and 
was  under  one  management,  the  captain  of  the  steamboat  acting  as 
conductor  on  the  cars. 

At  the  date  of  the  accident  the  plaintiff  was  keeping  a  bar  upon  the 
steamboat  under  an  agreement  with  the  defendants,  he  paying  to 
them  the  sum  of  two  hundred  dollars  per  month  for  the  privilege 
and  use  of  the  bar,  with  the  use  of  a  stateroom  and  such  meals  as  he 

^  A  portion  of  the  opinion  is  omitted. 

^  Cases  repudiating  the  "different  department"  rule  are  collected  in  26  Cyc. 

1344- 

The  court  in  Whaalan  v.  R.  R.,  8  Ohio  St.  249,  declined  either  to  reject  or 
adopt  the  "different  department"  rule,  saying  that  each  case  must  be  decided 
upon  its  particular  facts. 


itv  d(.l 


plaintiri  if- 
....     „i  that  place,  r, 
Cisco,  the  boiler  oi 

^ncer,  explode^: 

ifif  recovered  . 
At  the  close  of  c  .Li[u-.-i 

jil,  gave  to  the  jir. 
"First— If  the  j- 
were  engaged  in  ' 
•isco  to  Petaluma. 
'nring  the  montl. 
-riod  of  time  th'.: 

r'fendants  a  bar  i;u   n...- 

lereon  to  tend  tin  period,  r.r 

n  said  route  fr<  i  •■■R-  on  the  Petaluma 

reek,  from  wher,  '-^^  were  bv  defend- 

nts  conveyed  to  tv 
:^.d  from  the  Tov 
irs  ;  that  for  said  - 
art  of  the  consider,!  . 
Iff  to  the  defenda'it!-:. 
'Ute  by  said  cai' 
i'at  on  the  27th  li- 
ars at  the  depot  thei 
i  I  'Steamer,  and  by  a. 
of  said  bar;  thai 
,  -icfendants,  usually  • 
.rriving  by  said  cars. 
>  liler  of  the  lo- 
■'<;ness  or  n^ . 
of  said  Uk'  . 
...  ....  j.Jaintiff,  not  ' 

iS  injury),  the  plain!; 


er  for  a 


.  Hfl  I      Li!'.' 

aoh  of  {' 


omplaii 


and  coujitv 
The  foli. 

"If  ^oP   ' 

boiler  ^ 

thr     - 


rulint^  deft  ■ 

At  tlie  t:: 
frei^^ht  an  ' 
steamboat 
tween  the 
There  was  no  - 
was  under  one 
co'nductor  on  t! 

At  the  date  v 
-'vamboat  und': 


•)STA  ST! 

^ON 

iPANY. 

rALIFORN 

the  twel ' 

,il  diotnct,  city 

truction  rei"' 

n  the  opinion: 

nee  that  an  i 

of  defendants' 

■  n  the  27th  d: 

'Mst,  1866,  and 

^-  on  the  pb' 

lefendants,  in 

illy  went,  it: 

>n  and  off  the 

that  positior. 

'.    •'ing'  to 

ihout  to  ste; 

. -e  car, 

11. :  that  ' '  . 

tegulation 

e  baggai. 

!C  plaintiff, 

at  his  fault,  . 

V  an  explosion 

laintiff  has  1 

•   '^rima  facie 

unless  the 

;ve  shown 

.vas  the  result  'v,  ; 

u  \  :La!>ie  casualty, 

^'e  cJire  C'->uld  not 

prevent." 

1 

for  damages  for 

:pon  a  locomotive 

judgmen 

■-,L'r   ri^-pi". 

uew  trial. 

■      ;■.   ..    1_   . 

' '!  'ii  t;Lrriers  dj; 

^taluma,  using 

ntr,  and  b'' 

.    iin  of  cSi  - 

U  one  line  and 

i'io;it  acting  3'^ 

.  war  upon  tlic 

he  pa>'ing  to 

•  the  privilei' 

.'h  meals  as  ' 

'344 

The  cour; 
adopt  the  "V; 


'  collected  m  20  L. 

d  either  to  reject 
:ase  must  be  deci! 


employer's  liability.  587 

mig'ht  desire  upon  the  boat,  and  receiving  to  his  own  use  the  profits 
of  all  sales  of  liquors,  etc.  In  addition  to  his  business  as  barkeeper 
he  acted  as  express  messenger  under  employment  by  Wells,  Fargo  & 
Co.,  and  received  from  the  express  compan}^  for  his  services  in  that 
capacity  fifty  dollars  per  month.  Wells,  Fargo  &  Co.  paid  to  the 
defendants  a  monthly  rate  for  carrying  their  packages  and  messen- 
ger over  the  route. 

The  plaintiff  resided  at  Petaluma,  and  as  he  was  about  to  enter  the 
cars  at  that  place,  intending  to  make  the  usual  daily  trip  to  San  Fran- 
cisco, the  boiler  of  the  locomotive,  then  in  charge  of  the  defendants' 
engineer,  exploded  and  caused  the  personal  injury  for  which  the 
plaintiff  recovered  judgment  in  this  action. 

At  the  close  of  the  testimony  the  court,  at  the  request  of  the  plain- 
tiff, gave  to  the  jury  the  following  instructions: 

"First — If  the  jury  believe  from  the  evidence  that  the  defendants 
were  engaged  in  the  transportation  of  passengers  from  San  Fran- 
cisco to  Petaluma,  and  from  Petaluma  to  San  Francisco,  before  and 
during  the  month  of  August,  A.  D.  1866;  that  during  this  same 
period  of  time  the  plaintiff  rented  at  a  monthly  or  other  rental  of 
defendants  a  bar  on  the  steamer  of  the  defendants,  and  traveled 
thereon  to  tend  the  same ;  that  said  steamer,  during  said  period,  ran 
on  said  route  from  San  Francisco  to  a  landing  on  the  Petaluma 
Creek,  from  whence  the  passengers  so  transported  were  by  defend- 
ants conveyed  to  the  Town  of  Petaluma,  by  cars  propelled  by  steam, 
and  from  the  Town  of  Petaluma  to  said  landing  by  means  of  said 
cars ;  that  for  said  rental  of  said  bar  it  was  understood  and  agreed  as 
part  of  the  consideration  for  the  rental  agreed  to  be  paid  by  the  plain- 
tiff to  the  defendants,  that  the  plaintiff  should  be  transported  on  said 
route  by  said  cars  and  steamer,  without  other  or  further  charge ; 
that  on  the  27th  day  of  August,  1866,  the  said  plaintiff  came  to  said 
cars  at  the  depot  thereof  at  Petaluma,  for  the  purpose  of  going  to 
said  steamer,  and  by  and  on  said  steamer  to  San  Francisco,  in.  attend- 
ance of  said  bar;  that  he  was  standing  in  the  depot  on  the  platform 
of  defendants,  usually  occupied  by  passengers  who  were  departing  or 
arriving  by  said  cars,  for  the  purpose  of  getting  on  said  cars,  when 
the  boiler  of  the  locomotive  attached  to  said  cars  blew  up,  through  the 
carelessness  or  negligence  of  the  engineer  of  defendants,  who  was 
in  charge  of  said  locomotive,  and  the  plaintiff  was  injured  thereby 
(he,  the, plaintiff,  not  being  guilty  of  any  negligence  contributing  to 
his  injury),  the  plaintiff  is  entitled  to  recover. 

"Second — If  the  jury  believe  from  the  evidence  that  the  defend- 
ants were  engaged  in  the  transportation  of  passengers  from  San 
Francisco  to  Petaluma,  and  from  Petaluma  to  San  Francisco,  before 
and  during  the  month  of  August,  A.  D.  t866  ;  that  during  the  same 
periods  of  time  Wells,  Fargo  &  Co.  employed  the  plaintiff  to  carry 
their  express  matter  between  said  places,  and  paid  the  defendants  to 
transport  said  express  matter  for  a  certain  sum  of  money  per  month ; 


588  DUTIES    OF    PRINCIPAL   TO   AGENT. 

and  said  plaintiff  and  said  defendant  entered  upon  said  arrangement, 
and  were  engaged  in  the  same  during  said  period  of  time,  and  that 
it  was  understood  and  agreed  between  said  defendants  and  Wells, 
Fargo  &  Co.  that  the  plaintiff,  as  their  messenger,  should  be  trans- 
ported with  their  said  express  matter  from  San  Francisco  to  Peta- 
luma,  and  from  Petaluma  to  San  Francisco,  during  said  period  of 
time ;  that  the  defendants  made  such  transportation  by  cars  pro- 
pelled by  steam,  and  a  steamer ;  that  said  cars  started  from  the  town 
of  Petaluma;  that  while  thus  engaged  the  plaintiff,  during  said 
period  of  time,  came  to  said  cars,  at  the  depot  thereof,  for  the  pur- 
pose of  going  to  San  Francisco;  that  he  was  standing  on  the  plat- 
form of  said  defendants,  near  said  cars,  for  the.  purpose  of  stepping 
into  a  car  of  defendants  (and  that  said  platform  was  usually  used 
by  passengers  departing  or  arriving  by  said  cars),  when  the  boiler 
of  the  locomotive  attached  to  said  cars  exploded,  through  the  negli- 
gence or  carelessness  of  the  engineer  employed  by  the  defendants, 
who  was  then  in  charge  of  said  locomotive,  and  the  plaintiff  was  in- 
jured thereby  (the  plaintiff  not  being  guilty  of  any  negligence 
which  contributed  to  his  injury),  then  the  plaintiff  is  entitled  to  re- 
cover damages  for  such  injury." 

The  defendants  excepted  to  these  instructions,  and  contend  that 
the  case  is  within  the  reason  of  the  rule  that  an  employer  is  not  re- 
sponsible to  his  employe  for  injuries  resulting  from  the  negligence, 
carelessness,  or  unskilfulness  of  a  fellow  employe  engaged  in  the 
same  general  business. 

The  rule  itself  cannot  be  questioned.  It  has  been  settled  by  a  uni- 
form series  of  both  English  and  American  decisions.  The  question 
comes  upon  the  application  of  the  principle  to  the  present  case. 

The  reason  usually  given  in  the  cases  for  the  rule,  as  we  have 
stated  it,  is  that  a  servant,  in  bargaining  with  his  employer  is  pre- 
sumed to  know  the  ordinary  risks  of  the  business  in  which  he  is  to 
engage,  and  can  obtain  a  compensation  in  accordance  with  the  risk, 
or  at  his  option  decline  the  employment.  Among  the  ordinary 
perils  of  the  service  are  those  arising  from  the  carelessness  or  neg- 
ligence of  co-laborers,  and  they  are  presumed  to  be  provided  for  in 
the  bargain  which  he  makes.  He  assumes  the  risk  as  a  part  of  his 
contract  of  service.  The  duty  of  the  employer  in  this  regard  ex- 
tends no  further  than  to  the  use  of  due  care  and  prudence  in  the 
selection  of  competent  servants  in  the  several  departments  of  the 
business.  (Farwell  v.  Boston  &  Worcester  Railroad  Co.,  4  Met. 
49;  Albro  V.  Agawam  Canal  Co.,  6  Cush.  'jy;  Ryan  v.  Cumberland 
Valley  Railroad  Co.,  23  Pa.  St.  385 ;  Russell  v.  Hudson  River  Rail- 
road Co.,  17  N.  Y.  137;  Hard  v.  Vermont,  etc..  Railroad  Co.,  32  Vt. 
477;  Sher.  &  Red.  on  Neg.,  §§  86,  88,  90,  and  cases  cited.) 

The  doctrine  of  these  cases  is  not  based  wholly  or  mainly  upon 
the  theory  that  the  employe  is  presumed  to  know  the  nature  of  the 
risk. 


I 


589 


se  of  Abraham  v.  F' 

by  UK-  '     "    "'        ■   " 

test  in 

incurrcu  .^  \  -■ 
thit  a  guest  a; 

e  had  the  sr 
.h  he  was. 
do  not  thini 
,  l^  >i  iiicient.     An  c 
or  management  of  - 
nboat  or  lo(  • 
r  wa"?  carel .   • 
■'.y  or  U' 
upon  '-. 
^  trom  Habi!! 
from  the  n 


suid 
.  be- 


I  ne  co-laborer  c 
dy  .entered  into  v. 
n  by  him  of  thes^ 
We  do  not  think 
n  of  the  rule.    A 
I  contended  that 
n  of  an  ordinary 
employe  of  the  • 
an  apartment  v^ 
'e.    His 
ion  for  t 
.  in  the  receipts  ■ 
!e  for  its  proper  c  ^ 
the  same  establishni^ 
'■  -lors  and  cigars  U 
die  transportatii. 
een  the  same  ii 
at  for  any  other 
nd  occupy,  for  f 

store,  and  an  e   _ 
merchant's  clerk,  it 
not  be  respf^'^ -'■•'' • 
■njuries  resiii 


:i  the  letter  or  rea- 
li  Co.,  merely,  it  is 

;M-r!ir,ie(l    fhe  posi- 

sense 


Mieral  line  of  de^ 


••     ./.c.i.c.i.     It.          ' 

.  licjcuient. 

re  engaged" 

,  and  that 

.'         ■  understood 

ad  Wells, 

Fargo  &  Co.  that  l 

;  be  trans- 

ported  with  their  s.  . 

icUuCi      J.  I 

Peta- 

luma;  and  from  TV 

..a  Franc 

:  lOd  of 

time;  that  the  deteud-^ 

U;   such  i: 

cars  pro- 

pelled  by  steam,  and  ? 

ihnt  ^ni,i 

i'le  town 

of  Petahima;  that 

■r^v... 

:;  said 

period  of  time.   •  • 

.  •,  a  I  iijt- 

:,  MJi   uie  pur- 

pose  of  going 

;  that  h', 

.i;  on  the  plat- 

form  of  s-cv' 

■'d  cars,  i^r  . 

se  of  stepping 

into  a  car 

'nt  said  pla. 

usually  used 

by  pa.^ 

by  sa;(l 

the  boiler 

of  the 

.    ars  expk 

-,^A  the  negli- 

gence  ■•-■ 

;ineer-  emplr 

le  defendants. 

-wh'-.  '■< 

locomotive,  a 

iamtiff  was  in- 

n' 

jt   being  gu. 

:iy   negligence 

■ ,  then  the  piau' : 

titled  to  re- 
;itend  that 

i  is  not  re- 

iries  resulting  from 

the  negligence, 

•r         ;..n,-n.^       .-.Tl--.^-- 

engaged  in  the 

stated  it,  is  th 
o,,y',r.A  to  knov 
.  and  ca 
Of   ai    his    optioij. 
perils  of  the  servic; 
li gence  of  co-labor c 
the  bargain  which  j 

ntract  of  service. 

■■:'U.  vu^  fin-ther  tb 
:    compt 


ics  of  th'" 
tisation 


ucy  ccic  : 
.    He  a 
1  he  duty  of  r;  • 


Hard  V 


;ouca,     K.  nas  ly^xn  settled  by  a  uni- 

'  Americpn  decisions.    The  question 

the  present  case. 

..  -  the  rule,  as  we  have 

irgaining  with  his  employer  is  pre- 


the  tijcory  that  the  employe  is  presu; 


' -ss  in  which  he  is  to 
ance  with  the  risk, 
"'-r   ordinary 
ss  or  neg- 
lu'.'ided  for  in 
,.;  a  part  of  his 
'cgard  ex- 
..-a:nce  In  thr^ 
■  tments  of  t 
i  Co.'  4  M' 
V-.  Cumberla 
•on  River  Rr: 
.  ..ad  Co.,  32  \ 
.3  cited.) 
ily  or  mainly  up 
now  the  nature  of  h 


employer's  liability.  589 

In  the  case  of  Abraham  v.  Reynolds,  5  Hurlst.  &  Nor.  147,  cited 
by  the  appellant,  it  was  suggested  by  Chief  Baron  Pollock  that  the 
test  in  such  cases  was  whether  the  party  injured,  knowing  the  risk, 
incurred  it  voluntarily ;  and,  as  an  illustration  of  the  principle,  said 
that  a  guest  at  a  house  was  in  the  same  position  as  a  servant,  be- 
cause he  had  the  same  means  of  judging  the  character  of  the  house 
in  which  he  was. 

We  do  not  think  that  the  test  suggested  by  the  learned  judge 
is  sufficient.  An  ordinary  passenger  acquainted  with  the  structure 
or  management  of  steam  engines  might  know  that  the  boiler  upon 
a  steamboat  or  locomotive  was  unsafe,  or  might  observe  that  the 
engineer  was  careless  or  incompetent,  and  yet  be  willing,  from  mo- 
tives of  necessity  or  interest,  to  encounter  the  risk  of  travel.  Yet 
this  knowledge  upon  his  part  would  not  absolve  the  carrier  of  pas- 
sengers from  liability  for  damages  for  injuries  received  by  the  pas- 
senger from  the  negligence  of  the  engineer,  or  insufficiency  of  the 
boiler. 

The  co-laborer  cannot  recover  in  such  a  case,  because  he  know- 
ingly entered  into  a  contract,  from  which  the  law  implies  an  assump- 
tion by  him  of  these  very  risks. 

We  do  not  think  the  present  case  comes  within  the  letter  or  rea- 
son of  the  rule.  As  messenger  for  Wells,  Fargo  &  Co.,  merely,  it  is 
not  contended  that  the  plaintiff  would  not  have  occupied  the  posi- 
tion of  an  ordinary  passenger.  As  barkeeper,  he  was  in  no  sense 
an  employe  of  the  defendants.  He  was  a  lessee,  for  a  monthly  rent, 
of  an  apartment  upon  their  boat,  which  he  occupied  for  purposes 
of  trade.  His  transportation  over  the  route  was  a  part  of  the  con- 
sideration for  the  monthly  payment.  The  defendants  had  no  inter- 
est in  the  receipts  of  his  business,  and  could  not  hold  him  account- 
able for  its  proper  conduct.  The  parties  were  in  no  sense  members 
of  the  same  establishment  for  one  common  purpose.  The  vending 
of  liquors  and  cigars  to  passengers  was  no  part  of  the  business  in 
which  the  transportation  company  were  engaged.  The  case  would 
have  been  the  same  if  the  plaintiff  had  leased  an  apartment  upon 
the  boat  for  any  other  species  of  trade.  If  a  cigar  vendor  should 
rent  and  occupy,  for  the  purposes  of  his  trade,  a  corner  of  a  mer- 
chant's store,  and  an  explosion  should  occur  through  the  negligence 
of  the  merchant's  clerk,  it  would  not  be  contended  that  the  merchant 
would  not  be  responsible  in  damages  to  the  cigar  vendor  for  per- 
sonal injuries  resulting  from  the  accident.  The  fact  that  the  place 
of  trade  was  upon  a  steamboat  can  make  no  difference  in  the  appli- 
cation of  the  principle. 

Grave  objections  have  been  made  to  the  rule  which  relieves  a  mas- 
ter from  liability  for  damages  incurred  by  the  negligence  of  a  fellow 
servant.  While  the  rule  is  too  firmly  supported  by  authority  to  be 
overthrown,  we  are  unwilling  to  extend  it  beyond  the  limits  desig- 
nated by  the  general  line  of  decisions. 


590  DUTIES    OF    PRINCIPAL   TO   AGENT. 

We  think  that  the  plaintiff  in  the  hypothetical  case  stated  in  the 
instructions  was  entitled  to  the  privileges  and  remedies  of  an  ordi- 
nary passenger. 

It  follows,  that  the  court  did  not  err  in  giving  these  instructions, 
or  in  refusing  those  asked  by  the  defendants  in  opposition  to  them. 

There  was  no  error  in  the  eighth  instruction,  given  at  the  request 
of  the  plaintiff.  It  premises  that  the  jury  must  be  satisfied  from  the 
evidence  that  the  plaintiff,  at  the  time  the  explosion  occurred,  was 
standing  upon  the  platform,  intending  to  take  passage  on  the  cars, 
and  about  to  step  into  the  car ;  and  then  directs  the  application  of 
the  well-settled  principle  that  as  between  a  passenger  and  a  common 
carrier  of  passengers,  the  proof  of  the  occurrence  of  an  accident, 
without  fault  of  the  passenger,  is  prima  facie  proof  of  negligence 
on  the  part  of  the  carrier.  (Boyce  v.  Cal.  Stage  Co.,  25  Cal.  467; 
Ficken  v.  Jones,  28  Cal.  627.) 

It  was  a  contested  issue  whether  the  plaintiff  was  or  was  not  a 
passenger,  and  the  jury  were  required  substantially  to  find  this  issue 
in  favor  of  the  plaintiff,  before  applying  the  principle  of  law  em- 
bodied in  the  instruction. 

Third — The  sixth  instruction  asked  by  the  defendants  was  sub- 
stantially given  in  the  charge  of  the  court,  and  a  repetition  of  it  could 
not  benefit  the  defendants. 

We  see  nothing  in  the  other  points  made  by  the  defendants  which 
requires  special  notice.  The  record  discloses  no  error  which  calls 
for  a  reversal. 

Judgment  and  order  affirmed.^ 


KANSAS  PAC.  RY.  CO.  v.  SALMON. 

1873.     Supreme  Court  of  Kansas,     ii  Kan.  83. 

Valentine,  J. — This  was  an  action  brought  by  Margaret  Salmon, 
administratrix  of  the  estate  of  Daniel  Salmon  deceased,  against  the 
Kansas  Pacific  Railway  Company,  to  recover  damages  for  wrong- 
fully causing  the  death  of  said  Daniel  Salmon.     The  issues  were 

^  See  particularly  Murray  v.  Currie,  L.  R.  6  C.  P.  24. 

In  Jones  v.  St.  Louis,  etc.,  Ry.  Co.,  125  Mo.  666,  it  was  held  that  a  porter 
on  a  Pullman  car  is  not  a  fellow-servant  of  the  engineer  operating  the  train. 

"I  can  well  conceive  that  the  general  servant  of  A  might,  by  working  toward 
a  common  end  along  with  the  servants  of  B  and  submitting  himself  to  the 
control  and  orders  of  B,  become  pro  hac  vice  B's  servant,  in  such  sense  as  not 
only  to  disable  him  from  recovering  from  B  for  injuries  sustained  through  the 
fault  of  B"s  proper  servants,  but  to  exclude  the  liability  of  A  for  injury  oc- 
casioned, by  his  fault,  to  B's  own  workmen."  Lord  Watson  in  Johnson  v. 
Lindsay,  L.  R.,  1891,  App.  Cas.  371,  382. 


id  bv 


I— At'ii. 
.im.  the  , 

•'  the  sai(j    ' 

marriage.     3d. — The  d' 
rier,  as  alleged  in  the 
such  owned  and  operal' 
4th. — On  the  13th  of  !-. 
for  a  long  time  })re\  ioi 
■t  as  locomotive 
^  at  Ellsworcir  .■•    ■ 
defendant,  accusto 
nui  an  engine,  to 
Dlsvvorth,  a  distar 
with  his  family,  ir 
eastern  end  of  his 
■  "den  by  the  forer: 
the  consent  ant, 

to  be  ordet'  any  engine  oi 

_     -    jant  at  any  rp  iie  said  13th  of 

September,  having  v  at  Ellsworth, 

'■■"  set  out  to  ride  t  ■    '■■■    -  -    ■■  t-^- 

rendant's  freight 
defendant  f 
•ited  the  dec 
an  engine  froi'; 
:  ■  and  as  such 

the  freight-: 
v..im  with  a  cal 
tl  railway,  and  ot; 
'    o  their  work 
lit  said  Sail 


Y  lare,  and  wa 

?'-'  •  and  the  ■^n'' 

e  prohii 

V-  emplo>c_. 

vere  known 


beioni  )d  defendant,  go 


tiiat  tij. 

-.a  in  tl" 

was  eiiL 

an  ord; 

rver. 

,   .       ;,  that  tb 

i  ruction  ^ 

oi  in  refusing  those 

to  then! 

There  was  no  err 

■  '  ij     liioi; 

'-equest 

of  the  plaintiff.    It  1  ■ 

the  jur\ 

->n  the 

evidence  th; 

time  t: 

standing  iij 

•  idinin-  t" 

and  about  to  si 

i>-ation  of 

the  well-settled 

,1  common 

carrier  of  ] 

of  the  • 

an  accident. 

without-  ■■■■■ 

-■■    hi'ini, 

)f  negiigeucc 

on  the 

25  Cal.  467  ; 

Fickcn 

L;   v^ 

the  plaintiff  was 

or  was  not  a 

pa: 

this  issut 
.  law  em 

of  the  court,  and 

r  points  mad' 
•ord  disci 


'endants  was  sub- 
!'.on  of  it  could. 

ats  which 
hich  call: 


T.^TOX 


I 


Valentine,  ; 
administratrix  C' 
Kansas  Pacific 

ful!  --—  " 


',aret  Salmoi. 

'  'to'ainst  ti"i 
r  wronp 
ues  wer* 


d  that  a  port' 


"1  car. 

a   crinH' 


fauli  ol  ii  b 


;n  such  sense  as  in 
tstained  through  tl; 
of  A  for  injury  0^: 
atson  in  Johnson  \ 


EMPLOYERS    LIABILITY.  59I 

tried  by  a  jury;  and  on  the  trial  the  parties  submitted  the  following 
agreed  statement  of  facts  to  the  jury  as  evidence,  to  wit: 

"ist.  The  plaintiff  is  the  administratrix  of  the  estate  of  Daniel 
Salmon,  deceased,  duly  and  legally  appointed,  as  in  the  petition 
alleged.  2d. — At  the  time  of  the  death  of  Daniel  Salmon,  he  left 
surviving  him,  the  plaintiff,  Margaret  Salmon,  his  widow,  and  two 
children  of  the  said  Margaret  and  the  said  Daniel,  issue  of  their 
marriage.  3d. — The  defendant  is  a  corporation  and  common  car- 
rier, as  alleged  in  the  petition,  and  also  of  freight  trains ;  and  as 
such  owned  and  operated  the  line  of  railroad  alleged  in  the  petition. 
4th. — On  the  13th  of  September,  1870,  said  Daniel  Salmon  was,  and 
for  a  long  time  previous  thereto  had  been  in  the  employ  of  the  de- 
fendant as  locomotive  engineer.  The  family  of  the  said  Salmon 
resided  at  Ellsworth,  and  the  said  Salmon  was,  by  permission  of  the 
defendant,  accustomed,  on  days  when  it  was  not  his  regular  turn  to 
run  an  engine,  to  return  upon  his  route  on  defendant's  trains  to 
Ellsworth,  a  distance  of  twenty-three  miles  from  Brookville,  to  stay 
with  his  family,  instead  of  remaining  at  Brookville,  which  was  the 
eastern  end  of  his  regular  run  as  an  engineer ;  and  this  was  not  for- 
bidden by  the  foreman  of  engineers,  his  immediate  superior,  but  was 
by  the  consent  and  permission  of  the  defendant;  but  he  was  then 
subject  to  be  ordered  by  defendant  to  take  charge  of  any  engine  of 
defendant  at  any  moment.  And  on  the  morning  of  the  said  13th  of 
September,  having  remained  all  night  with  his  family  at  Ellsworth, 
he  set  out  to  ride  to  Brookville,  as  was  his  custom  to  do,  upon  the 
defendant's  freight  train  (which  did  not  carry  passengers,  and  was 
by  the  defendant  forbidden  to  do  so,  unless  the  facts  herein  stated 
constituted  the  deceased  a  passenger),  to  take  his  run;  that  is,  to 
operate  an  engine  from  Brookville  westward,  according  to  his  regu- 
lar turn;  and  as  such  employe,  by  permission  of  the  conductor  in 
charge  of  the  freight-train  from  Ellsworth  to  Brookville,  being  a 
freight  train  wuth  a  caboose  car,  in  which  laborers  upon  the  line  of 
the  said  railway,  and  other  employes,  had  been  and  were  accustomed 
to  travel  to  their  work  on  said  road,  with  the  assent  and  permission 
of  defendant  said  Salmon  got  into  the  caboose  car  for  the  purpose 
of  going  to  Brookville  to  resume  his  duties  as  such  engineer  at  said 
point.  He  paid  no  fare,  nor  was  he  requested  by  the  conductor  to 
pay  any  fare,  and  was  known  to  the  conductor  as  an  employe  as 
aforesaid ;  and  the  said  Salmon  knew  the  usages  of  defendant  re- 
specting the  prohibition  of  passengers  upon  freight  trains.  He  was 
not  actually  employed  in  operating  that  train  in  any  capacity,  and 
such  facts  were  known  to  the  conductor  of  such  train.  On  the  road 
between  Ellsworth  and  Brookville,  in  the  state  of  Kansas,  and  while 
said  Daniel  Salmon  was  in  the  caboose  car  as  aforesaid,  the  train 
was  endeavoring  to  ascend  a  heavy  grade,  and  being  unable  to  do 
so,  backed  down  the  grade,  and  came  in  collision  with  another  train 
belonging  to  said  defendant,  going  in  an  opposite  direction  from  the 


592  DUTIES    OF    PRINCIPAL   TO   AGENT. 

way  the  aforesaid  train  was  backing  down.  The  trains  so  coming 
into  collision,  the  car  in  which  said  Daniel  Salmon  was,  was  crushed 
without  fault  or  negligence  on  his  part,  and  was  thrown  from  the 
track,  and  he  mortally  wounded  thereby,  from  which  mortal  wound 
he  died  the  succeeding  day.  That  the  injury  received  by  him  and 
from  which  he  died  was  not  occasioned  by  any  neglect  or  fault  on 
his  part,  other  than  may  be  legitimately  inferred  from  the  facts 
aforesaid." 

There  was  some  evidence  introduced  on  the  trial,  but  nothing  that 
in  the  least  affects  or  modifies  the  foregoing  agreed  statement  of 
facts.  The  jury  found  a  special  verdict;  and  in  their  verdict  they 
found  the  facts  literally  as  agreed  to  in  the  foregoing  statement,  ex- 
cept that  they  omitted  the  following  concluding  words  of  the  agreed 
statement  of  facts,  to  wit — "other  than  may  be  legitimately  inferred 
from  the  facts  aforesaid."  The  jury  made  some  other  findings,  but 
it  is  scarcely  necessary  to  notice  them,  for  those  that  harmonize  with 
the  foregoing  statement  of  facts  raise  no  question  of  law  not  al- 
ready raised  by  such  agreed  statement,  and  those  that  conflict  with 
said  agreed  statement  were  found  by  the  jury  without  any  evi- 
dence to  sustain  them,  and  against  the  evidence.  The  main,  and  in 
fact  the  only  question  in  this  case  is,  whether  the  deceased  was  a 
passenger,  or  merely  an  employe  of  the  defendant,  while  riding  on 
the  defendant's  train. 

If  he  was  a  passenger,  the  other  facts  would  undoubtedly  give  the 
plaintiff  the  right  to  recover  in  this  case ;  but  if  he  was  merely  an 
employe,  the  plaintiff  would  not  have  any  such  right.  The  court, 
among  other  instructions,  charged  the  jury  as  follows : 

'T  instruct  you  that  the  mere,  naked,  unexplained  fact  of  a  col- 
lision of  two  trains  of  cars,  operated  by  the  same  railroad  company, 
raises  the  presumption  of  negligence  on  the  part  of  the  company." 

And  the  jury,  in  pursuance  of  this  instruction,  found  as  follows: 
"5th — The  death  of  said  Daniel  Salmon  was  caused  by  the  negli- 
gence of  the  defendant,  without  any  fault  of  the  said  Daniel  Sal- 
mon"— and  upon  this  finding  the  court  below  rendered  judgment 
for  the  plaintiff  and  against  the  defendant.  All  this  would  have 
been  correct  if  the  deceased  had  been  a  passenger ;  but  it  was  cer- 
tainly incorrect  if  the  deceased  was  only  an  employe  of  the  company. 
The  said  collision  was  the  only  proof  of  negligence  on  the  part  of  the 
railroad  company  introduced  on  the  trial.  A  collision  always  pre- 
sumptively shows  negligence,  but  whether  negligence  of  the  com- 
pany, or  negligence  merely  of  some  one  or  more  of  its  officers, 
agents,  or  employes,  is  the  important  question  in  this  case.  As  be- 
tween the  railroad  company  and  a  passenger,  the  negligence  of  any 
officer,  agent,  employe  or  servant  of  the  company  is  the  negligence 
of  the  company  itself ;  but  as  between  the  railway  company  and  one 
of  its  employes,  the  negligence  of  another  employe,  a  co-employe,  is 
not  at  all  the  negligence  of  the  company.     (Dow  v.  K.  P.  Ry.  Co., 


EMPLOVER  S    LIABILITY 

'   Kan.  '  herefore   while  a  Cf 

-^'■' ■Hi  Lj'c   part  of  the  o — : 

^r.  vet  it  never  prov. 


iian  any  oinc 
t  ail  the  ne,t;:',, 
Vs  to  railroad  c( 

•'•^'tdent,  the  ■•■  ■..,,    ^.v. 

ther  agei  f  the  rai 

general  oi;  '    '  ■■ 

'.ny,  in  fact 
■   persons,  w  v_s  or  noc.     i^al 

of  a  collisi'  on  the  part  of 

ne  of  these  ,.,  rs.     it  .:  ^)  show 

.;ence  on  the  iii-^^l-rni  igineer, 

nductor,  or  of  the 

day,  who  ha^  -        ' 

v\  as  the  decea:-  .:-,  not  every 

rson  who  may  ,■  i  ride  upon 

in,  that  can  r.  r  that  he  is 

ed  to  all  the  /;  'TT  P    Rv. 

.  Nichols,  8  ' 
lot  a  passengvi 
ollowing:    He  b< 
tny  ticket  or  pa 
or   pay  any   fa 
■.  or  act  as 
a  passenger 
•ye  of  the  railway  c 
■ne  acted  as  such 
.t  train,  and  roc'. 
"  ""    because  he 
of  the  com]/ 
ons  except  e 
elusion  the  <  ■ 
liome  to  the 
irpose  of  p-: 
e  caboose  Cr 
torn,  usage, 
he  facts  of 


w-i              Viresaid  l. 

0  corning 

in.                 i),  the  ca' 

!-  crushed 

without  fault  or  ne 

on  his  part,  ani 

from  the 

track,  and  h^  -m.^n . 

1-'  thereby,  froi 

r,\\  wound 

lie  died  the 

at  the  injur 

him  and 

from  whicli  ;ir 

■oned  by  m 

r  fault  on 

his  part,  other 

nately  h. 

rlie  facts 

aforesaid." 

There  v:r 

duced  on 

a;  that 

in  the  lea?' 

vhe  fore; 

.i.cment  of 

facts.    T!.. 

verdict 

edict  they 

found 

i  to  in  t. 

iTient,  ex- 

cept  th 

■  ng  conclu  i 

ihe  agreed 

stateni 

r  than  mav  '■■ 

■;    inferred 

undings,  but 

irnionizewith 

ti;: 

■  .r,  raise  no  <] 

■w  not  al- 

■.ement,  and  * 

'iiiiict  with 

uid  by  the 

'    any  e^ 

,..■  tI.,^  ev^.l. 

'.n,  and  ii. 
-.ed  was  a 

(    01  inc. 

iiiic  riding  or. 

;;er  facts  \\\ji.- 

'y  give  the 

this  case;  bi 

merely  an 

t  liave  any  such 

The  court. 

;cd  the  jtir.    ^-  f 

.  naked; 

;  fact  of  a  co! 

ated  by  . 

road  compaip 

ra 

■''.nee  on  tl; 

e  company." 
nd  as  follows ; 
^-'V  the  negli- 

gence 

'aniel  Sal- 

mon"— 

judgment 

for  the  pL 

ould  have 

'■■"■■-  -orrecL   ,. 

.-■.  ■,.i. 

:t  was  ct"-- 

ncorreci 

'IS  only  :.■: 

•  compai. 

i  /  .  -Aid  r<  ■"■ 

io  part  of  the 

rni(ri'.;!il   '~< 

n  .ilways  pre- 
'  the  cor 
IS  officei 

■nportai                 ■'■'.  in 

this  case.    As  be- 

■^nA     ,    ■                             -■, 

iif^fili gence  of  any 

officer,  agent,  c 

.    rhe  negligence 

of  the  :  — 

cuuipany  and  one 

of  its  ' 

e,  a  co-employe,  is 

..oiiipaUj, .     -^iJow 

V.  K.  P.  Ry.  Cr 

employer's  liability.  593 

8  Kan.  642.)  Therefore  while  a  colHsion  presumptively  proves 
negligence  on  the  part  of  the  company  as  between  the  company  and 
a  passenger,  yet  it  never  proves  negligence  on  the  part  of  the  com- 
pany as  between  the  company  and  one  of  its  employes.  It  is  a  gen- 
eral rule  that  one  employe  does  not  represent  the  principal  any  more 
than  any  other  employe ;  and  negligence  between  co-employes  is  not 
at  all  the  negligence  of  the  principal.  This  rule  has  its  exceptions. 
As  to  railroad  companies,  the  general  manager,  the  general  super- 
intendent, the  general  officer  for  the  employment  or  discharge  of 
the  other  agents  and  servants  of  the  railway  company,  or  indeed  any 
other  general  officer,  would  probably  be  the  representative  of  the 
company,  in  fact  the  company,  as  between  the  company  and  all 
other  persons,  whether  such  persons  were  employes  or  not.  But 
proof  of  a  collision  does  not  at  all  show  negligence  on  the  part  of 
any  one  of  these  general  officers.  It  tends  more  properly  to  show 
negligence  on  the  part  of  the  brakeman,  the  fireman,  the  engineer, 
the  conductor,  or  some  other  inferior  officer,  agent  or  servant  of  the 
company,  who  has  a  more  close  and  direct  connection  with  the  col- 
lision. 

Was  the  deceased  a  passenger?  We  think  not.  It  is  not  every 
person  who  may  enter  a  car,  or  go  upon  a  train,  or  even  ride  upon 
a  train,  that  can  thereby  claim  that  he  is  a  passenger,  or  that  he  is 
entitled  to  all  the  rights  and  privileges  of  a  passenger.  (U.  P.  Ry. 
Co.  v.  Nichols,  8  Kan.  505.)  Among  the  reasons  why  the  deceased 
was  not  a  passenger  in  the  legal  sense  of  the  term  we  would  state 
the  following:  He  bought  no  ticket,  paid  no  fare,  nor  offered  to 
buy  any  ticket  or  pay  any  fare.  Nor  did  he  intend  to  buy  any 
ticket  or  pay  any  fare.  He  did  not  at  any  time  claim  to  be  a 
passenger,  or  act  as  such.  He  did  not  go  into  a  passenger  car, 
nor  upon  a  passenger  train.  But  on  the  contrary,  as  he  was  a  mere 
employe  of  the  railway  company,  he  chose  to  ride  as  such,  and  all 
the  time  acted  as  such.  He  went  into  a  caboose  car  attached  to 
freight  train,  and  rode  in  such  caboose  car  as  an  employe  of  the 
company,  because  he  was  an  employe,  where  other  servants  and 
employes  of  the  company  rode,  and  from  which  passengers,  and  all 
other  persons  except  employes  of  the  company,  were  excluded ;  and 
of  this  exclusion  the  deceased  had  full  knowledge.  He  was  going 
from  his  home  to  the  place  of  his  employment,  as  was  his  custom, 
for  the  purpose  of  performing  the  duties  of  his  employment,  and 
rode  in  the  caboose  car  on  a  freight  train,  and  paid  no  fare,  accord- 
ing to  custom,  usage,  understanding  and  agreement  of  the  parties. 
Now,  as  the  facts  of  this  case  show  beyond  all  doubt  that  the  de- 
ceased was  not  a  passenger,  but  merely  an  employe  of  the  company, 
the  charge  of  the  court  was  erroneous,  the  finding  of  the  jury  with 
regard  to  the  negligence  of  the  company  was  erroneous,  not  being 
sustained  by  any  evidence,  and  the  judgment  founded  on  the  ver- 
38 — Reinhard  Cases. 


594  DUTIES    OF    PRINCIPAL   TO   AGENT. 

diet  was  erroneous.  The  plaintiff  did  not  by  the  evidence  make  out 
any  case  against  the  defendant,  and  the  court  therefore  erred  in  re- 
fusing to  grant  a  new  trial.  (Higgins  v.  Han.  &  St.  Jo.  Rd.  Co., 
36  Mo.  418;  Gilshannon  v.  Stony  Brook  Rd.  Co.,  10  Cush.  288; 
Seaver  v.  Boston  &  Maine  Rd.  Co.,  14  Gray  466;  Russell  v.  Hud- 
son River  Rd.  Co..  ly  N.  Y.  134.)  Chapter  93  of  the  laws  of  1870, 
p.  197,  has  no  application  to  this  case.  That  act  applies  only  where 
a  railway  company,  as  a  company,  has  been  negligent,  and  does  not 
apply  to  negligence  between  co-employes  of  a  railway  company. 
The  judgment  of  the  court  below  must  be  reversed,  and  cause  re- 
manded for  a  new  trial. 

All  the  justices  concurring.^ 


BAIRD  V.  PETTIT. 
1872.     Supreme  Court  of  Pennsylvania.     70  Pa.  St.  477, 

Williams,  J. — The  plaintiff  below  was  employed  as  draftsman  in 
the  works  carried  on  by  the  defendant  for  the  manufacture  of  loco- 
motive engines.  On  the  evening  of  the  15th  of  November,  1865, 
after  the  hands  had  quit  work,  he  left  the  building  where  he  was  em- 
ployed and  was  on  his  way  home,  when  he  fell  over  a  pile  of  dirt 
and  rubbish  on  the  sidewalk  in  front  of  the  premises,  a  few  feet  from 
the  steps  of  the  building,  which  had  been  thrown  out  in  deepening  a 
cellar,  and  left  on  the  pavement,  and  in  falling  received  the  injury 
for  which  this  action  was  brought.  The  work  of  excavating  the 
cellar  was  done  under  the  superintendence  of  the  carpenter  employed 
to  do  the  jobbing  work  about  the  premises,  but  the  men  who  did  the 
excavation,  as  the  jury  have  found,  were  subject  to  the  defendant's 
direction  and  control. 

Is  the  defendant,  then,  liable  for  the  injury  occasioned  the  plain- 
tiff by  their  negligence?  If  they  were  engaged  in  the  same  common 
employment  with  the  plaintiff,  the  defendant  is  not  responsible  for 
the  injury,  because  the  plaintiff  in  entering  into  the  defendant's 
service  assumed  all  the  risks  usually  and  necessarily  incident  to  the 
employment.  One  of  these  risks,  as  is  well  settled,  is  the  liability  to 
injury  from  the  negligence  of  fellow  workmen.  But  if  they  were 
not  in  the  same  common  employment,  the  defendant  is  liable  for  the 
injury  occasioned  by  their  negligence,  for  the  plaintiff  did  not  take 
upon  himself  any  risk  except  such  as  are  ordinarily  incident  to  the 
business  in  which  he  was  engaged.  The  defendant's  business  was 
the  manufacture  of  locomotive  engines,  for  which  the  plaintiff  was 

^Accord:    Russell  v.  Hudson  River  R.  R.,  17  N.  Y.  134. 
Compare  State,  use  of  Abell,  v.  West  IMd.  R.  R.  Co.,  63  Md.  433. 


nv  II 


the  ini 


'■ith  what  pv 

:d  the  cellar 

plaintiff? 


It  takes  the 


:>eci  to  (, 

sman.  ti 


;  risks  whic; 

nt. 


sen'an 


t  to  be 


q;  to  grant  : 
^^o.  418;  nil 

or  V.  Bo. ' 
li  River  Rrl 
197.  has  n 


:.  Co.,  1. 

^4.)    Chain, 
IS  case.    Th, 


.  Rd.  Co., 

'•'^h.  288; 

V .  Hud- 

oi  1 870. 

iv  where 


iovV  aiUst  be 


J use  le- 


f^ETTTT 


sxcavation,  <\ 

direction  ana 

Is  the  defe 


n  :nt.  One  0+ 
>  i.iom  the  11'-^" 
1  the  same  r 


.n  wliicii  iic  \Vd5  ^i\: 

f.1C'^t■iro  of  ]nco!~;oti"' 


oiiian  ui 

of  loco- 

.ng  ot  i 

mber,  1865, 

lie  left  t; 

he  was  em- 

jme,  wli 

pile  Qf  dirt 

front  01 

.  -    ).e\v  feet  from 

.  had  b'' 

i  in  deepening-  a 

■  ived  the  injury 

excavating  the 

center  employed 

men  who  did  the 

the  defendant's 

c'd  the  plain- 

ijeiendanrs 

■ident  to  the 

c  liability  to 

...  if  they  were 

is  Viable  for  the 

(lid  not  take 

ident  to  the 

i     '           :n(?ss  was 

iliff  was 

.ur.part  Si> 


employer's  liability.  595 

employed  to  make  the  drawings.  In  accepting  the  employment  he 
took  upon  himself  all  the  risks  necessarily  incident  to  the  business. 
But  the  workmen  by  whose  negligence  he  was  injured  were  not  en- 
gaged in  the  manufacture  of  engines,  nor  in  the  performance  of  any 
service  connected  with  the  business.  There  is  not  a  particle  of  evi- 
dence that  the  cellar  they  were  excavating  had  been  or  was  intended 
to  be  used  for  any  purpose  connected  with  the  business  carried  on 
by  the  defendant.  If,  in  order  to  exempt  the  master  from  respon- 
sibility, it  is  not  necessary  that  "the  servant  causing,  and  the  servant 
sustaining  the  injury  should  both  be  engaged  in  precisely  the  same 
or  even  similar  acts,"  it  is  essential  that  they  should  be  engaged  in 
the  same  common  employment,  and  that  they  should  be  working  for 
the  same  common  end.  As  it  was  the  plaintiff's  business  to  make 
drawings  for  tools  and  engines,  all  persons  engaged,  or  in  carrying 
on  the  works,  however  employed,  must  undoubtedly  be  regarded  as 
his  fellow-workmen  and  engaged  in  the  same  common  employment. 
But  with  what  propriety  can  it  be  said  that  the  workmen  who  ex- 
cavated the  cellar  were  engaged  in  the  same  common  employment 
as  the  plaintiff?  Servants,  it  is  said,  are  engaged  in  a  common  em- 
ployment when  each  of  them  is  occupied  in  service  of  such  a  kind 
that  all  the  others,  in  the  exercise  of  ordinary  sagacity  ought  to  be 
able  to  foresee,  when  accepting  their  employment,  that  it  may  prob- 
ably expose  them  to  the  risk  of  injury  in  case  he  is  negligent.  That 
this  is  the  proper  test  is  evident  from  the  reason  assigned  for  the 
exemption  of  masters  from  liability  to  their  own  servants,  viz.,  that 
the  servant  takes  the  risk  into  account  when  fixing  his  wages.  He 
cannot  take  into  account  a  risk  which  he  has  no  reason  to  anticipate, 
and  he  does  take  into  account  the  risks  which  the  average  experience 
of  his  fellows  has  led  him,  as  a  class,  to  anticipate.  Shearman  & 
Redfield  on  Negligence  109.  If  this  is  the  rule — and  we  are  not 
disposed  to  question  its  soundness — how  could  the  plaintiff,  in  the 
exercise  of  ordinary  sagacity,  foresee,  when  accepting  the  employ- 
ment of  draftsman,  that  it  would  probably  expose  him  to  the  risk 
of  injury  from  the  negligence  of  the  workmen  employed  by  the  de- 
fendant to  excavate  the  cellar?  What  reason  had  he  to  anticipate 
the  risk  so  as  to  take  it  into  account  in  fixing  his  wages?  Mani- 
festly the  negligence  which  occasioned  the  plaintiff's  injury  was  not 
one  of  the  risks  which  he  assumed  in  entering  into  the  defendant's 
employment. 

But  there  is  another  reason  for  holding  that  the  rule  which  ex- 
empts a  master  from  liability  for  an  injury  occasioned  by  the  negli- 
gence of  a  servant  does  not  apply  in  this  case.  The  relation  of  mas- 
ter and  servant  did  not  exist  between  the  parties  when  the  plaintiff 
received  the  injury.  He  was  not  then  in  the  service  of  the  defend- 
ant ;  he  had  quit  work  and  was  then  on  his  way  home.  He  was  no 
longer  subject  to  the  defendant's  control,  or  bound  to  obey  his  or- 
ders.   As  soon  as  he  left  the  building  he  was  his  own  master.    He 


596  DUTIES   OF    PRINCIPAL   TO   AGENT. 

was  then  no  more  in  the  defendant's  service  than  any  other  citizen 
passing  along  the  street,  and  he  was  entitled  to  the  same  rights  and 
immunities.  If  the  relation  of  master  and  servant  did  not  cease 
when  he  left  the  building,  after  his  day's  work  was  done,  when  did 
it?  It  cannot  be  pretended  that  it  followed  the  plaintiff  home  and 
remained  with  him  while  there.  And  if  not,  it  must  have  ceased 
when  he  left  the  building,  and  he  had  the  same  right  to  an  unob- 
structed sidewalk  in  front  of  defendant's  premises  as  any  other  citi- 
zen; and  if  injured  by  a  dangerous  obstruction,  the  same  remedy 
for  an  injury.  It  will  scarcely  be  contended  that  if,  while  on  his  way 
home,  he  had  been  run  down  by  the  defendant's  carriage,  through 
the  carelessness  of  the  driver,  the  defendant  would  not  have  been 
responsible  for  the  injury,  because  the  negligence  of  the  driver  was 
one  of  the  risks  which  the  plaintiff  assumed  when  he  entered  into 
his  service.  But  in  principle  what  difference  is  there  between  the 
two  cases?  Why  is  not  the  driver  of  defendant's  carriage  as  much 
the  plaintift''s  fellow-servant  as  the  digger  of  the  cellar?  And  why 
should  the  plaintiff  be  required  to  foresee  and  take  into  account  the 
risk  arising  from  the  negligence  of  the  one  and  not  the  other? 
There  is  no  real  difference  between  the  cases,  and  neither  case  is 
within  the  rule  which  exempts  masters  from  liability  for  injuries 
occasioned  by  the  negligence  of  their  servants.  It  is  clear  that  this 
case  is  not  within  the  rule,  not  only  for  the  reason  that  the  injury 
did  not  happen  to  the  plaintiff  while  he  was  engaged  in  the  defend- 
ant's service,  but  because  it  was  not  occasioned  by  any  of  the  risks 
he  assumed  when  he  entered  into  his  employment.  The  risk  which 
occasioned  the  injury  was  not  one  incident  to  the  business,  and  to 
which  only  the  workmen  engaged  in  carrying  it  on  were  exposed ; 
but  one  unconnected  with  the  business,  and  to  which  all  citizens  hav- 
ing occasion  to  pass  along  the  street  were  as  much  exposed  as  the 
plaintiff  and  his  fellow  workmen. 

It  follows  from  what  we  have  said  that  there  was  no  error  in  the 
instructions  given  by  the  learned  judge  of  the  district  court  to  the 
jury,  or  in  his  refusal  to  affirm  the  points  submitted  by  the  defend- 
ant. 

Judgment  affirmed.^ 


HARPER,  BY  Wood,  His  Next  Friend,  v.  THE  INDIAN- 
APOLIS &  ST.  LOUIS  RAILROAD  CO. 

1871.     Supreme  Court  of  Missouri.    47  Mo.  567. 

Wagner,  J. — This  case  was  here  on  a  former  occasion,  and  will 
be  found  reported  in  44  Mo.  488.    The  action  was  for  damages,  and 

^  Compare  Ewald  v.  Chicago,  etc.,  R.  Co.,  70  Wis.  420. 


EMPLOY 


.  "that  on  tl- 

.     vi  defendant  h . 

';r  on  said  road  :  \ 

duties 
:i  or  nt; 
Uinrjijli  the  mii^iii, 
and  drawing  said 
etc.;  that  the  injt' 
he  was  in  the  penv_.ii, 
carelessness  on  his  pr 
from  the  fault,  ne?  ' 
that  there  w?is  no  ■ 


by   i>ermission   and    autno! 
controlled  by  a  firer^     ■    ^  '^ 
'  iiowledge  and  by 
'  )rmance  of  an  eiu 
i  !iie :  that  said  fir( 

to  perform  . 

.  engine,  of  ;. 
'  'eient  knowledge." 

The  defendant,  ans\'. 
J  Te  admitted,  that  the 
pening  of  the  injury  v 
of  an  engineer  in  and  a 

d  injury.    All  t; 

•vere  contrOverte 

in  the  answer  a'. 

expressly  admiti       . 

er  who  had  been  a 

.^f  plaintiff  was  cond. 

injury,  a  competent  , 
Ihe  following  abstract 
•fc  :\r  proved  upc^r  lh<"- 
!S  appor 
)ad,  and 

liy  9th,  t80, 

as  conductoi  ^w.,.,  . 

^he  train;  to  superii 


cmg   managed    ana 

V  •  1  ,  '     i  1 1 .-- 1- .-        •  \ ;  '  M  L     -  r  I  f-> 

he.  fit  or  com- 
•t  said  loco- 

■A]   ?Tld    COf*"- 

to  deny,  .     . 
engine  at  t! 


I 


'.en  no  r 


V, -.- 

if^'    It  cannot 
remained  with 
when  he  left 
structed  sidev 
zen;  and  if  i' 
for  an  injij 
home,  h':- 
the  c, 
respr,: 


l> 


mg  occas 
i>laintiff  a 

It  folio 
instructions  g 
jury,  or  in  hio 
ant. 

[ndsment  affirmeti 


citizen 

.  ;>its  and 

1   maslv.-r  . 

not  cease 

his  day'.-  ■ 

when  did 

follow  €■ 

ne  and 

And  if  i 

ceased 

he  had  the 

1  unob- 

fendant's  ;: 

;ier  citi- 

orous  o!' 

'emedy 

e  conter 

'V  the  1,1  ' 

-j; 

i   iiave  L>een 

:  driver  was 

c  entered  into 

between  tlie 

ge  as  much 

And  why 

'ccount  the 

Oi     die    ' 

the  other? 

■  a  the  c. 

i;er  case  is 

>  masters  fi 

>r  injuries 

:  their  ser^'' 

.  .^  ar  that  this 

:  only  fo. 

liat  the  injury 

while  he 

the  defend- 

.s  not  or. 

of  the  risks 

i.  ae  risk  which 

,,-: 

>usiness,  and  to 

.-. 

were  exposed; 

:a;u.u._  . 

ill  citizens  hav- 

street  \'. 

exposed  as  the 

e  said  tt; 

error  in  the 

ourt  to  the 

the  defend- 

JJvRPER, 

Ai'UL.i.S 


K  INDIAN- 


[871.    Supreme  Coub 


vio.  567. 


Wagner,  J. — This  case  wa« 
be  found  reported  in  44  M  • 


occasion,  and  will 
iv  damages,  and 


Compare  Ewald  v.  Chicago. 


EMPLOYER  S   LIABILITY.  597 

after  it  was  sent  back  by  this  court  for  a  re-trial,  there  was  an 
amended  petition  and  a  verdict  for  the  plaintiff.  The  amended  pe- 
tition states  "that  on  the  9th  day  of  July,  1867,  plaintiff  w^as  in  the 
employ  of  defendant  as  conductor  of  one  of  its  construction  trains 
running  on  said  road ;  that  on  said  day,  while  plaintiff  was  discharg- 
ing his  duties  as  conductor  of  said  train,  he  was,  without  any  care- 
lessness or  negligence  on  his  part  contributing  thereto,  but  solely 
through  the  mismanagement  of  the  locomotive  engine  attached  to 
and  drawing  said  train,  thrown  on  the  railroad  track  and  injured, 
etc.;  that  the  injuries  so  complained  of  resulted  to  plaintiff  while 
he  was  in  the  performance  of  his  duties  as  aforesaid,  without  any 
carelessness  on  his  part  contributing  thereto,  solely  and  directly 
from  the  fault,  negligence  and  want  of  care  of  defendant,  in  this : 
that  there  was  no  engineer  at  said  time  upon  or  in  charge  of  said 
locomotive  engine,  but  the  same  was  then  and  there,  without  the 
knowledge  or  consent  of  the  plaintiff,  but  with  the  knowledge  and 
by  permission  and  authority  of  defendant,  being  managed  and 
controlled  by  a  fireman,  said  fireman  being  then  and  there,  with  the 
knowledge  and  by  permission  and  authority  of  defendant,  in  the  per- 
formance of  an  engineer's  duties  in  and  about  said  locomotive  en- 
gine ;  that  said  fireman  was  not  an  engineer,  nor  was  he  fit  or  com- 
petent to  perform  the  duties  of  an  engineer  in  and  about  said  loco- 
motive engine,  of  all  which  defendant  at  said  time  had  full  and  com- 
petent knowledge." 

The  defendant,  answering  this  petition,  failed  to  deny,  and  there- 
fore admitted,  that  the  fireman  in  charge  of  the  engine  at  the  hap- 
pening of  the  injury  was  not  fit  or  competent  to  perform  the  duties 
of  an  engineer  in  and  about  the  locomotive  engine,  and  that  plaintiff 
suffered  injury.  All  the  remaining  allegations  of  the  amended  pe- 
tition w^ere  controverted  by  the  answer.  Certain  affirmative  matter 
stated  in  the  answer  was  denied  in  a  reply  filed  by  the  plaintift",  but 
it  was  expressly  admitted  in  the  replication  that  William  Griffith,  the 
engineer  who  had  been  assigned  to  the  locomotive  of  the  train 
whereof  plaintiff  was  conductor,  was,  at  the  time  of  the  happening 
of  the  injury,  a  competent  and  skilful  engineer. 

The  following  abstract  of  the  testimony  presents  the  essential 
facts  as  proved  upon  the  trial:  That  in  February  or  March,  1866, 
plaintiiT  was  appointed  conductor  of  a  construction  train  on  defend- 
ant's railroad,  and  continued  in  defendant's  service  in  that  capacity 
until  July  9th,  1867,  when  he  suffered  the  injury  complained  of.  His 
duties  as  conductor  were  to  direct  the  engineer  when  and  where  to 
move  the  train;  to  superintend  and  oversee  a  party  of  twenty  or 
thirty  laborers  attached  to  the  train  when  at  work,  and  to  act  as 
brakesman  and  switchman  where  his  services  in  those  capacities  were 
required.  Plaintiff  had  no  other  authority  over  the  engineer  than  that 
stated  above;  and  with  the  management  and  control  of  the  loco- 


598  DUTIES    OF    PRINCIPAL   TO    AGENT. 

motive  he  was  not  permitted  to  interfere,  that  being  a  skilled  em- 
ployment. 

The  fireman  was  subordinate  to  the  engineer  and  not  subject  to 
the  orders  of  the  conductor.  At  the  time  of  the  happening  of  the 
occurrence  which  gave  rise  to  this  suit,  William  Griffith  was  engi- 
neer of  the  locomotive  attached  to  the  train,  and  James  Blansfield 
was  fireman.  Blansfield  was  appointed  fireman  on  the  20th  of  June, 
1867,  previous  to  which  time  he  had  been  a  laborer.  On  the  afternoon 
of  July  9th,  1867,  having  finished  work  at  Alton,  plaintiff  directed 
Griffith  to  take  the  train  to  Alton  Junction,  a  distance  of  two  or 
three  miles;  to  slack  up  on  arriving  there,  that  plaintiff  might  cut 
off  the  last  car,  and  then  place  the  train  in  the  sand-pit,  a  few  hun- 
dred yards  beyond  the  station.  The  train  consisted  of  twelve  or 
thirteen  platform  cars  and  a  box-car,  which  was  next  to  the  engine. 
As  the  train  arrived  at  the  junction,  plaintiff  walked  back,  and, 
standing  at  the  end  of  the  last  car  but  one,  with  his  back  to  the  loco- 
motive, stooped  down  and  pulled  out  the  coupling-pin.  Before  he 
could  recover  an  upright  position,  the  train,  which  had  slacked  its 
speed  and  was  moving  slowly,  started  suddenly  ahead,  plaintiff  was 
thrown  on  the  track,  and  was  run  over  by  the  car  which  had  been 
cut  off  and  which  was  slowly  following  the  train.  When  this  oc- 
curred the  engineer  was  on  the  platform  at  the  junction,  having, 
without  plaintiff's  knowledge,  left  the  locomotive  to  the  charge  and 
management  of  Blansfield,  the  fireman,  who  had  pursued  that  occu- 
pation but  nineteen  days.  The  movement  of  the  train  which  threw 
plaintiff  off  was  caused  by  the  fireman  letting  on  the  steam.  Plaintiff 
says  in  his  testimony  that  he  intended,  after  replacing  the  pin  and 
regaining  an  upright  position,  to  wave  his  hand  for  the  engine  to 
move  ahead,  but  was  prevented  by  the  hasty  and  negligent  act  of 
Blansfield,  who  started  without  waiting  for  the  signal.  Upon  this 
point  there  was  evidence  given  for  the  defense  tending  to  show  that 
the  plaintiff  did  give  the  signal ;  but  this  was  rebutted  by  counter- 
testimony  in  support  of  the  plaintiff's  statement.  The  evidence  was 
conflicting,  and  therefore  the  jury  alone  could  determine  the  fact. 
It  was  further  testified  that  on  defendant's  railroad,  with  the  knowl- 
edge of  the  superintendent  of  engineers,  and  without  objection  from 
or  any  restraint  imposed  by  them,  firemen  were  permitted  to  manage 
locomotives,  in  the  absence  of  the  engineers,  at  side-tracks,  stations, 
and  when  switching,  if  deemed  competent  to  do  so  by  their  respective 
engineers ;  and  that,  in  accordance  with  this  state  of  facts,  Griffith, 
deeming  Blansfield  competent,  had,  prior  to  the  injury,  yielded  up 
management  of  the  engine  to  him.  It  was  also  shown  that  the 
management  of  a  locomotive  so  far  involved  science,  skill  and  ex- 
perience, that  firemen  served  an  average  term  of  three  years  as 
firemen  before  they  were  considered  competent  to  assume  the  duties 
and  responsibilities  of  engineers.  Upon  this  state  of  facts  the  court 
gave  the  following  instructions  for  the  plaintiff: 


n  the  employ  of  the  defe; 
his  part 
locomoti"\ 

believe  from  the  eviti 
or    superintendent   of 
of  defendant's  road  |: 
motive  engines,  in  the 
tions,  and  failed  or 
plaintiff  had  knov, '    ' 
gincer's  duty  ther. 
dent  performing  s. 
"2.    The  jury  ;; 
igs  in  this  case  that  i 
n  charge  of  the  locohr... 
form  the  duties  of  an  engii 
The  othei"  instructions  : 
upon  them  in  this  court. 
ristructions : 

"i.    The  jury  are  ins+rr 
'1  his  pleadings  that 
■igineer,  the  plaintift 
mst  discard  from  their  c^ 
ohn  Harper  as  relai.;  " 
•ritifith. 

"2.    The  jury  are  ir 
'\at,  at  the  time  of  tl 
inploy  as  a  conductor  oi  ^nc 
!S  duties  as  such;  that  the  i 
ther  by  plaintiff's  o:\ri  caw 
r  by  that  of  the  engine, 
ley  should  find  for  the  d. 
er  care  in  the  sel;-  ■ 
of  the  respectiv 
.  Hereof  plaintiff  was, 
"'^.    The  jury  are  ). 
'  that  plaintiff,  by  hi.- 
-s,  contributed  to  ri- 
se of  ordniary  c; 
•  ULU  have  been  avoidtn,  n,c; 
The  following  instruction':, 
ed  in  the  series, 
ised: 
'5.    The  jury  are  instructea 
1 -f    IS  an  engineer  d^ic^  n  r 
;  it  has  been  est 
:''  •  ''nd  a  periiiusMi  ii  . 


-     '.mrt  ga . 

admitted  by  the  plaintiff 

■  ompetent  and  skilful 

e  fact,  and  the  jury 

,  of  the  testimony  of 


ni<-A.: .  :.  ne  was  not 
ployuient. 

The  fireman  was 
the  or.ders  of  the  c; 
occurrence  which  g 
neer  of  the  '  ■■  ■  >■  ■ 
was  firema: 
1867,  previou.s 
of  July  9th,  18 
Griffith  to  takv 
three  miles;  to 
off  the  last  car,  an( 
dred  yards  ;:;-vi-^^i' 
thirteen  pi. 
As  the  iTc.-, 
siai-'lu'ii:;-  ar  r 
meiivc,  sto 


regaining  an  ii; 
move  ahea-'    ■  • 
Blansfield, 
point  t'-.  - 
the  pL 
testimon)' 
conflicting. 
It  was  furlhei 
edge  of  the  su; 
or  an}'  restrain 
locomotives,  in 
and  when  switc 
engineers;  and 
deeniinq;  Blair^' 


j>erience,  thai 
firemen  before 
and  responsibil 

gn--- ^-^''- 


I  10  .uueriere,  t!. 

killed  em- 

to  the  e' 

'ject  to 

the  tir 

■  if  the 

lis  suit, 
to  the  t 

engi- 
:sfield 

ointed  Iv 

June, 

.,  -I  •„  .  ,.- 

till,  moon 

;T  directed 

LOU  Juiic- 

-  vo  or 

ing  tht 
iie  train  ^ 

iit  cut 
;  iL,  a  few  hun- 

The  tra 

of  twelve  or 

.-car,  which 
riction,  plain; 

(0  the  engine. 
'  back,  and, 

r  but  one,  wi 

>  the  loco- 

d  out  the  c< 

' '  fore  he 

il,  the  train 

.ed  its 

intiff  was 

.  had  been 

ly  following  the 

the  platform  a 

e,  left  the  locom' 

n  this  oc- 
•1.  having, 
i large  and 

■e  firemr; '■ 

,;cd  that  occu- 

'he  mo\ 

'\  which  threw 

earn.   Plaintiff 

.g  the  pin  and 

0  wave 

'  by  the 

waiting- 

or  the  d' 

fur  the  engine  to 

1  negligent  act  of 

il.     Upon  tills 

■ .'/  to  show  that 

,  but  tbi^ 

■  d  by  counter- 

idence  was 

.:  the  fact. 

he  knowl- 

'tion  from 

ted  to  manage 
<  acks,  stations, 

heir  respective 
CI  facts,  Griffith, 

injury,,  yielded  up 
-0  shown  that  the 

v-nce,  skill  and  ex- 

id  an   ;i 
isidered 

of  three  years  as 
i  L.J  assume  the  duties 

iers.    V 

state  of  facts  the  court 

ions  for  1 


employer's  liability.  599 

"i.  If  the  jury  believe  from  the  evidence  that  the  plaintiff,  while 
in  the  employ  of  the  defendant,  without  any  fault  or  negligence  on 
his  part  contributing  thereto,  through  the  mismanagement  of  the 
locomotive  engine  by  a  fireman,  suffered  injury,  and  they  further 
believe  from  the  evidence  that  the  superintendent  of  engineers  on, 
or  superintendent  of,  defendant's  road  knew  that  the  engineers 
of  defendant's  road  permitted  firemen  to  manage  and  control  loco- 
motive engines,  in  the  absence  of  engineers,  about  switches  and  sta- 
tions, and  failed  or  neglected  to  prohibit  the  same,  then,  unless 
plaintiff  had  knowledge  that  the  fireman  was  permitted  to  do  an  en- 
gineer's duty  therein  on  said  engine,  or  was  at  the  time  of  the  acci- 
dent performing  said  duty,  they  will  find  a  verdict  for  the  plaintiff. 

"2.  The  jury  are  instructed  that  it  stands  admitted  by  the  plead- 
ings in  this  case  that  the  fireman,  who  at  the  time  of  the  accident  was 
in  charge  of  the  locomotive  engine,  was  not  fit  or  competent  to  per- 
form the  duties  of  an  engineer  in  and  about  said  locomotive  engine." 

The  other  instructions  need  not  be  noticed,  as  no  point  is  made 
upon  them  in  this  court.  For  the  defendant  the  court  gave  these 
instructions : 

"i.  The  jury  are  instructed  that,  it  being  admitted  by  the  plaintiff 
in  his  pleadings  that  William  Griffith  was  a  competent  and  skilful 
engineer,  the  plaintiff  is  forbidden  to  dispute  the  fact,  and  the  jury 
must  discard  from  their  consideration  so  much  of  the  testimony  of 
John  Harper  as  related  to  the  incapacity  or  want  of  sobriety  of 
Griffith. 

"2.  The  jury  are  instructed  that  if  they  believe  from  the  evidence 
that,  at  the  time  of  the  injury  sued  for,  plaintiff  was  in  defendant's 
employ  as  a  conductor  of  one  of  its  trains,  and  in  the  discharge  of 
his  duties  as  such ;  that  the  injury  complained  of  was  occasioned 
either  by  plaintiff's  own  carelessness,  unskilfulness  or  negligence, 
or  by  that  of  the  engineer  or  other  person  in  charge  of  the  train, 
they  should  find  for  the  defendant,  provided  defendant  has  exercised 
proper  care  in  the  selection  of  persons  competent  for  the  perform- 
ance of  the  respective  duties  of  engineer  and  fireman  of  the  train 
whereof  plaintiff  was,  at  the  time  of  the  injury,  conductor. 

"3.  The  jury  are  instructed  that  if  they  believe  from  the  evi- 
dence that  plaintiff,  by  his  own  recklessness,  carelessness  or  unskil- 
fulness, contributed  to  the  injury  for  which  he  sues,  or  that  by  the 
exercise  of  ordniary  care,  skill  or  prudence  on  his  part  the  accident 
could  have  been  avoided,  they  will  find  for  the  defendant." 

The  following  instructions,  which  it  is  deemed  necessary  to  notice 
as  numbered  in  the  series,  and  which  were  offered  by  the  defendant, 
were  refused : 

"5.  The  jury  are  instructed  that  the  incapacity  of  the  fireman  to 
act  as  an  engineer  does  not  justify  a  recovery  against  defendant 
unless  it  has  been  established  that  the  defendant  authorized  him  to 
act  as  such ;  and  a  permission  to  the  engineer,  when  the  fireman  was 


600  DUTIES   OF    PRINCIPAL   TO   AGENT. 

by  the  engineer  deemed  competent  to  act  temporarily  as  engineer, 
does  not  make  the  defendant  responsible  for  a  mistake  or  negligence 
of  the  engineer  in  permitting  a  fireman  to  handle  the  engine  when  in- 
competent for  the  duty.^     *     '"     * 

"7.  The  jury  are  instructed  that  it  is  admitted  by  the  plaintiff  in 
his  pleadings  that  William  Griffith,  the  engineer  of  the  train  at  the 
time  of  the  accident  sued  for,  was  a  careful,  competent  and  skilful 
engineer;  if,  therefore,  the  jury  should  find  from  the  evidence  that 
Griffith  was  guilty  of  negligence  in  surrendering  charge  of  the  loco- 
motive engine  of  the  train  to  one  who  was  incompetent  to  manage 
it,  and  that  plaintiff's  injury  was  the  result  of  such  negligence,  plain- 
tiff is  not  entitled  to  recover,  because  the  negligence  of  his  fellow- 
servant  was  one  of  the  risks  he  assumed  by  his  hiring  to  defendant. 

"8.  The  jury  are  instructed  that  if  they  believe  from  the  evidence 
that  the  plaintiff  was,  at  the  time  of  the  accident  sued  for,  in  defend- 
ant's employ  as  one  of  the  conductors  of  its  trains,  and  that  the  in- 
jury sued  for  was  occasioned  by  the  negligence,  carelessness  or  un- 
skilfulness  of  one  of  those  employed  by  defendant  on  the  same  train, 
and  this  without  the  knowledge  or  consent  of  defendant,  then  plain- 
tiff is  not  entitled  to  recover,  if  defendant  has  taken  proper  care  to 
engage  competent  servants  to  perform  the  duty  assigned  to  them,  or 
if  the  plaintiff,  at  the  time  of  the  accident  sued  for,  knew  that  the 
fireman  only  of  the  train  was  in  charge  of  the  engine,  and  plaintiff 
was  acquainted  with  the  fireman's  abiUty  and  skill  to  perform  the 
duties  of  engineer. 

"9.  The  jury  are  instructed  that  if  they  believe  from  the  evidence 
that  the  injury  was  the  result  of  the  negligence  or  unskilfulness  of 
one  James  Blansfield,  a  fireman  at  the  time  acting  as  engineer,  and 
unfit  to  perform  the  duties  of  an  engineer ;  that  Blansfield  acted  as 
engineer  in  compliance  with  a  custom  of  the  defendant  to  permit 
its  firemen,  in  the  absence  of  the  engineer,  to  act  as  such,  at  stations 
or  when  switching;  that  this  custom  existed  before  plaintiff  was 
employed  as  a  conductor  for  defendant,  and  became  known  to  him 
after  his  employment  as  conductor,  then  plaintiff  is  not  entitled  to 
recover." 

The  tenth  instruction,  in  reference  to  the  person  in  charge  of  the 
engine  being  subordinate  to  the  plaintiff,  was  properly  refused,  there 
being  no  evidence  to  justify  it. 

The  jury,  in  finding  a  verdict  for  the  plaintiff,  acting  under  the 
instructions  of  the  court,  must  have  found,  and  did  find,  that  the 
plaintiff  received  the  injury,  and  that  he  did  not  contribute  thereto; 
that  the  accident  happened  in  consequence  of  the  mismanagement  of 
a  locomotive  engine  by  a  fireman;  that  the  fireman  was  managing 
the  engine  with  the  knowledge  or  by  permission  or  authority  of  de- 

^A  portion  of  the  opinion  is  omitted. 


r.M  l'L.V\  L: 


t,  and  <! 
...     The  in-: 
ded.     Wi!r.  tim- 
■  ut  jury  lias  pas^(;^ 
only  to  inquire  vvlh 

Whilst   this 
servant  of  a  c 
■y •   '    isance   or  ni' 
;;  .  >  ,1  against  the    i 
held  otherwise  wi 
reason  of  imp--'  ' 
in  the  prosecu' 
■'':■■.  hoe  or  miscfiiuini,-:  ; 
:  .  ;  ..  iry  skill  and  cap-^ 
enipioyment  of  sn. 
of  ordinary  care  <■ 
R.  R.  Co,  30  Mo. 
Hibson  v.  Pacific  1- 

In  Shearman  & 
employment  of  oij< 
laborer,  to  run  a  .- : 
i:[v-nce  on  the  part 
ii.  ■:  rjc  of  the  serva-. 
other  place,  "it  is  ' 
cient  care  and  skii: 
jury  to  each  other 
Neg,  §§  90,  91.) 

In  the  case  of  the  IL     ■ 
vas  held  that  the  co.' 
njnn,'"  received  while 
tency  •  of    an    er 
.      n  to  the  compair 
.  Y.  565,  the  court  sa  . 
i'lf}'  happening  to  hir 
:  i'  master,  and  thi? 
:!  and  incompetent 
'■•:  to  be  done,  or  f" 
•nents  and  facilit' 
!i  they  are  to  be 
recognizing  and 
sponsible  to  thos. 
ence,  carelessne.- 
I   same  general  bu^;)" 
■  <],  then,  which  the  la 
r,  is  that 
.are  and 


^k  of  th 

C^ 


it  "pnX' 

'ic  or  a  CLMii.ui'.'.i 

iption  of  negli- 

,  t  he  had  actual 

.'ors  state  in  an- 

serva:  'fi- 

\\iV:  IV         m- 

.:  Redf. 


m  the 


of  its  agent -5  ur  applian 


6(X) 


DUTIES   OF  PRINCIPAL  TO  AGi-vN  « 


by  the  engineer  deemed 

,1.'./..    ...^  rr-  a-e  the  defen. 

er  in  permil 
,:>  nipe:.  !ii  lor  the  dii'  ■ 

"7.  The  jury  aire 
hi?  pie.idings  that  V 
time  of  the  accideni 


It  to  act 

as  engineer 

msible  ^ 

-  ".egHgena 

man  to  . 

wiien  in 

'intiff  in 


engmeer ;  11,  the 

'lould  n- 

'  ncc  tnat 

Griffith  was  guil 

n  surren 

the  loco- 

motive  engine  o; 

who  w.i 

managv 

it,  and  that  plair. 

he  result 

^ciice,  plain- 

tiff  is  not  entit!' 

Liise  th'. 

f  his  fellow- 

servant  was 

-sumed  ] 

[o  defendant 

"8.    Th-  ■ 

it  if  they 

the  evidence 

that  the 

of  the  accide; 

n  defend- 

ant's  er 

ictors  of  its  tr 

>it  the  in- 

jury  sue 

by  the  negligence, 

c;'               ^s  or  un 

ri-;i;'  ,;-, 

••  ved  by  defend.:;- 

'              .-.cune  trani. 

consent  of 

.,  then  plain 

idant  ha- 

.  i-  care  h 

.      u  the  dut , 

them,  0 

•  e.  of  the  accident  suc 

that  th 

was  in  charge  of  th': 

plaintil 

fireman's  ability  ancl 

I'orm  th^: 

I  that  if  the} 

;rom  the  evidence 

of  the  negi 

.   unskilfulness  ot 

m  at  the  tir 

as  engineer,  and 

lUliJL   a.' 

leld  acted  a- 

eagiiieer 

mt  to  perniK 

its  firemen,  in  tu 

such,. at  stations 

or  when  switcbi 

,,...,.    -. 

're  plaintiff  was 

employed  as  a  ct- 

iidant,  a 

€  known  to  him 

after  his  employj: 

.-    j-1-,.-,^. 

■■  r  '\ntitled  to 

recover." 

The  tenth  ins: 

;e  of  the 

engine  being  sul; 

■cd,  there 

being  no  evidenc . 

The  jury,  in 

•ig  under  the 

instructions  of  i. 

lid  find,  that  the 

plaintiff  received  w 

)ntribute  thereto; 

that  the  accident  hai 

nsmanagement  of 

a  locomotive  engine 

■riajn:  r 

n  was  managing 

the  '^riQfine  with  the  - 

.':  or  by  ' 

authority  of  de- 

:t«l. 


employer's  liability.  6oi 

fendant,  and  that  this  was  without  the  plaintiff's  knowledge  or  con- 
sent. The  incompetency  of  the  fireman  to  act  as  engineer  is  con- 
ceded. With  the  weight  of  the  evidence  we  have  nothing  to  do; 
the  jury  has  passed  upon  that,  and  their  verdict  binds  us.  We  have 
only  to  inquire  whether  the  law  was  correctly  laid  down  by  the  court. 

"Whilst  this  court  has  followed  the  prevailing  doctrine  that  a 
servant  of  a  corporation  who  has  been  injured  by  the  negligence, 
misfeasance  or  misconduct  of  a  fellow-servant,  can  maintain  no 
action  against  the  master  for  such  injury,  yet  it  has  been  expressly 
held  otherwise  where  injuries  to  servants  or  workmen  happen  by 
reason  of  improper  and  defective  machinery  and  appliances  used 
in  the  prosecution  of  the  work,  or  where  the  servant  by  whose  neg- 
ligence or  misconduct  the  injury  was  occasioned  is  not  possessed  of 
ordinary  skill  and  capacity  in  the  business  intrusted  to  him,  and  the 
employment  of  such  incompetent  servant  is  attributable  to  the  want 
of  ordinary  care  on  the  part  of  the  master.  McDermott  v.  Pacific 
R.  R.  Co.,  30  Mo.  115;  Rollback  v.  Pacific  R.  R.  Co.,  43  Mo.  187; 
Gibson  v.  Pacific  R.  R.  Co.,  46  Mo.  163. 

In  Shearman  &  Redfield  on  Negligence  it  is  said  that  "proof  of  the 
employment  of  one  who  had  always  been  a  mere  clerk  or  a  common 
laborer,  to  run  a  steam  engine,  would  raise  a  presumption  of  negli- 
gence on  the  part  of  the  master,  without  showing  that  he  had  actual 
notice  of  the  servant's  antecedents ;"  for,  as  the  authors  state  in  an- 
other place,  "it  is  the  duty  of  a  master  to  employ  servants  of  suffi- 
cient care  and  skill  to  make  it  probable  that  they  will  not  cause  in- 
jury to  each  other  by  the  lack  of  those  qualities."  (Shearm.  &  Redf. 
Neg.,  §§  90,  91.) 

In  the  case  of  the  Illinois  Cent.  R.  R.  Co.  v.  Jewell,  46  111.  99,  it 
was  held  that  the  company  was  liable  to  a  fellow-servant  for  an 
injury  received  while  in  their  employment,  resulting  from  the  in- 
competency of  an  engine-driver,  where  that  incompetency  was 
known  to  the  company.  In  Wright  v.  N.  Y.  Cent.  R.  R.  Co.,  25 
N.  Y.  565,  the  court  says  :  "The  master  is  liable  to  his  servant  for  any 
injury  happening  to  him  from  the  misconduct  or  personal  negligence 
of  the  master,  and  this  negligence  may  consist  in  the  employment  of 
outfit  and  incompetent  servants  and  agents,  or  in  furnishing  for  the 
work  to  be  done,  or  for  the  use  of  the  servants,  machinery  or  other 
implements  and  facilities  improper  and  unsafe  for  the  purposes  to 
which  they  are  to  be  applied."  In  a  later  case  in  the  same  court, 
while  recognizing  and  laying  down  the  general  rule  that  a  master  is 
not  responsible  to-  those  in  his  employ  for  injuries  resulting  from  the 
negligence,  carelessness  or  misconduct  of  a  fellow-servant  engaged 
in  the  same  general  business,  the  court  proceeds  to  say :  "The  only 
ground,  then,  which  the  law  recognizes,  of  liability  on  the  part  of  the 
defendant,  is  that  which  arises  from  personal  negligence,  or  such 
want  of  care  and  prudence  in  the  management  of  its  affairs  or  the 
selection  of  its   agents  or  appliances,   the   omission   of  which  oc- 


602  DUTIES    OF    PRINCIPAL   TO   AGENT. 

casioned  the  injury,  and  which,  if  they  had  been  exercised,  would 
have  averted  it."    Warner  v.  The  Erie  R.  R.  Co.,  39  N.  Y.  471. 

In  Snow  v.  Housatonic  R.  R.  Co.,  8  Allen  444,  445,  the  supreme 
court  of  Massachusetts  examines  the  principle  and  gives  the  rule 
the  following  clear  exposition:  "Now,  while  it  is  true,  on  the  one 
hand,  that  a  workman  or  servant,  on  entering  into  an  employment, 
by  implication  agrees  that  he  will  undertake  the  ordinary  risks  in- 
cident to  the  service  in  which  he  is  engaged — among  which  is  the 
negligence  of  other  servants  employed  in  similar  services  by  the  same 
master — it  is  also  true,  on  the  other  hand,  that  the  employer  or 
master  impliedly  contracts  that  he  will  use  due  care  in  engaging  the 
services  of  those  who  are  reasonably  fit  and  competent  for  the  per- 
formance of  their  respective  duties  in  the  common  service,  and  will 
also  take  due  precaution  to  adopt  and  use  such  machinery,  apparatus, 
tools,  appliances  and  means  as  are  suitable  and  proper  for  the  prose- 
cution of  the  business  in  which  his  servants  are  engaged,  with  a 
reasonable  degree  of  safety  to  life  and  security  against  injury."  The 
case  of  Noyes  v.  Smith,  28  Verm.  63,  is  also  a  case  adopting  the 
same  principle ;  and  while  it  recognizes  fully  the  rule  that  a  master 
is  not  liable  to  his  servant  for  an  injury  occasioned  by  the  negligence 
of  a  fellow-servant  in  the  course  of  their  common  employment,  the 
court  says :  "Such  rule  has  no  application  where  there  has  been 
actual  fault  or  negligence  on  the  part  of  the  master,  either  in  the  act 
from  which  the  injury  arose  or  in  the  selection  or  employment  of  the 
agent  which  caused  the  injury."  This  opinion  is  sustained  by  citing 
to  its  support  the  case  of  Hutchinson  v.  Ry.  Co.,  5  Wells,  Hurl. 
&  G.  352,  which  also  thus  qualifies  the  rule  that  the  master  shall  have 
taken  due  care  not  to  expose  his  servants  to  unreasonable  risks.  The 
Vermont  court  there  lays  down  this  rule :  "The  master,  in  relation  to 
his  fellow-servants,  is  bound  to  exercise  diligence  and  care  that  he 
brings  into  his  service  only  such  as  are  capable,  safe  and  trustworthy ; 
and  for  any  neglect  in  exercising  that  diligence  he  is  liable  to  his 
servant  for  injuries  sustained  from  that  neglect."  It  is  not  necessary 
that  he  should  know  that  they  are  unsafe  and  incapable.  It  is  suffi- 
cient that  he  would  have  known  it  if  he  had  exercised  reasonable 
care  and  diligence.  (Id.,  and  cases  cited;  Gibson  v.  Pacific  R.  R. 
Co.,  46  Mo.  163.)  Again,  in  the  case  of  Gilman  v.  The  Eastern 
R.  R.  Corporation,  10  xA-llen  233,  239,  an  employe  of  the  defendant 
brought  his  action  for  an  injury  occasioned  by  the  negligence  of  a 
switchman  in  failing  properly  to  adjust  the  switch  upon  the  track. 
The  court  held  that  the  plaintiff,  being  a  fellow-servant  in  the  employ 
of  the  same  railroad  company,  could  not  have  recovered  of  their 
common  master ;  but  they  add :  "The  evidence  offered  by  the  plain- 
tiff at  the  trial  was  competent  to  show  that  the  defendant,  knowingly 
or  in  ignorance,  caused  by  its  own  negligence,  employed  an  habitual 
drunkard  as  a  switchman,  and  thereby  occasioned  the  accident.  Of 
the  sufficiency  of  this  evidence  a  jury  must  judge.    If  the  plaintiff 


.,  a?i  satis  I 


'.-Jit 


ir.   ]  r      ■na  ana   . 

care   in  providing 

servants,  and  is  li' 

in  this -regard." 
lliese  cases  inc 

>•.',; M-.rt  tlie  iV 

'■^    ihe  instruv 
!-,  duty  in  ei 
:onofitsbu£' 
r  must  be  held  r  - 
astain  this  fact  il 
:!ven  on  both  si 
ad  we  think,   tl. 
hole  case  was  j; 

■  refusal  ol  : 
asserted   iv: : 

..    That  exec, 

..  ^res  that  a  pt : 

he  engineer  deei  > 

-'-'•  the  del 

■cer  in  ['. 

etent   for  th 

the  compair 

le,  but  denio 

dered  the  act 

Judgment  affirmed. 

portion  of  the  opii 

■  !■?  the  r]u'\   of  ,^  ■■ 


•  nt. 


■ve  ni  the  series,  ar.u 

!  the  fireman  was  by 

as  engineer,  did 

■  r.c  or  r''-'''-   •■x'  of 
the  ent  i'\- 


le  engmetr 


:rv,  T  ,  to  i'jrv  iv  ( 


v.aM.>i:(..d  the  injur} 

lev  hat'. 

■-■d,  woul<! 

'■;..'■  ;v,erLed  it.'"_  \\ 

leR.  R 

471. 

>      V.  Hou^: 

uj  I  u  L  K.n  1\  1.  assachu  ■=' 

Co.,  8  Allen 
•.  the  prin-: 

'  supreme 
"  e  rule 

the  following  clear 

Mow.  A\ 

0  one 

hand,  that  a  w<  r" 

by  implication  a 
cident  to  the  s 

■  IS  eiig 

.-.  the 

neg-ligence  of  o( 

.\ved  in  ; 

.-ame 

master — it  is  a' 

>ther  hand,  tha 

master  impl'>'^' 

"  ''-ill  use  dv.e  ■ 

'  & ' ' '  S   '" ' ' ' 

services  of 

.  fit  ami 

r  the  per 

for: 

■i  m  th( 

!:e,  and  wi.i 

al:^ 

tools,    a 

;  and  use 

re  suitable  ar 

rv,  apparati!-, 
the  prose- 

rutior-; 

;;  his  servani^ 

1,  with  a 

)  life  and  security  aj; 
'^^erm.  63,  is  also  a 

■ii-y."  Th. 

■  •i1)i'o-    ill. 

■gtiizes  fully  the 

,  Au  injury  occasi  v^    ' 
urse  of  their  con^ 

ment,  tlx 

lias  no  application 

has  been 

e  on  the  part  of  the.i 

in  the  act 

or  in  the  selection  i>r 

ent  of  the 

y."    This  opinion  is  - 

..i  by  citing" 

taken  c: 

VeruKjo' 
bis  f.Il.-. 


cient  that  he  w 
caref  and  diligence. 
Co.,  46  Mo.   t6'^.) 


swiicaniau  ui  1: 
The  court  held  ' 
;   the  same  nw 
common  master ,  u. 
tiff  at  the  trial  was 


lutchinson  v.  Ry.  Co.,  5  Wells,  Hurl 
^■f'es  the  rule  that  the  master  shall  have 
ervants  to  unreasonable  risks.    Tlie 
lis  rtile:  '"'The  master,  in  relation  i'.-. 
-xercise  dili(r<'''''^e  and  care  that  h< 
'  trustworthy 
liable  to  hi 
uecessar . 


f'acinc  i\.   i- 

The  Easter. 

.he  defendant 


V  to  at! 


sufficieiicy  of  lii.s  evidence  a  jui 


ogligence  ot  a 
a  upon  the  traci 
.auit  in  the  empk; 
recovered  of  the 
iiered  ,by  the  r^""' 
defendant,  know 
employed  an  hab;t;i. 
Hied  the  accident.    ( 
udge.    If  the  plainti; 


II 


employer's  liability.  603 

can  satisfy  them  that  such  misconduct  or  negUgence  in  the  defendant 
caused  the  injury,  and  that  he  himself  used  due  care,  he  may  main- 
tain his  action."  In  the  same  case  they  say :  "It  is  well  settled,  both 
in  England  and  America,  that  a  master  is  bound  to  use  ordinary 
care  in  providing  his  structures  and  engines  and  in  selecting  his 
servants,  and  is  liable  to  any  of  his  fellow-servants  for  his  negligence 
in  this  regard." 

These  cases  incontrovertibly  establish  the  law  and  overwhelmingly 
support  the  theory  upon  which  the  case  was  submitted  to  the  jury 
by  the  instructions.  If  the  defendant  was  negligent  or  unmindful  of 
its  duty  in  employing  competent  and  skilful  servants  in  the  execu- 
tion of  its  business,  and  injury  resulted  therefrom  to  a  fellow-servant, 
it  must  be  held  responsible.  And  of  the  sufficiency  of  the  proof  to 
sustain  this  fact  the  jury  were  the  proper  judges.  The  instructions 
given  on  both  sides  fairly  and  substantially  embraced  these  views, 
and  we  think,  therefore,  that  they  were  unobjectionable.  As  the 
whole  case  was  presented  by  the  instructions  given,  we  see  no  error 
in  the  refusal  of  instructions  for  defendant,  as,  with  one  exception, 
they  asserted  nothing  that  was  not  sufficiently  covered  by  those 
given.  That  exception  is  in  the  one  numbered  five  in  the  series,  and 
declares  that  a  permission  to  the  engineer,  when  the  fireman  was  by 
the  engineer  deemed  competent  to  act  temporarily  as  engineer,  did 
not  make  the  defendant  responsible  for  a  mistake  or  negligence  of 
the  engineer  in  permitting  a  fireman  to  handle  the  engine  when  in- 
competent for  the  duty.  This  instruction  concedes  the  authority 
from  the  company  to  the  engineer  to  allow  a  fireman  to  handle  the 
engine,  but  denies  that  the  employment  by  the  engineer  is  to  be 
considered  the  act  of  the  company.^     *     *     >ic2 

Judgment  affirmed. 

^  A  portion  of  the  opinion  is  omitted. 

^  "It  is  the  duty  of  a  railroad  company  in  employing  its  servants  to  use  ordi- 
nary care  and  diligence  to  select  only  those  who  are  fit  and  proper  persons  to 
be  engaged  in  that  duty.  The  care  and  diligence  which  is  required  is  measured 
by  the  nature  of  the  duties  to  be  performed  by  the  servant  who  is  employed." 
McCrary,  J.,  to  jury  in  Crew  v.  St.  Louis,  etc.,  Ry.  Co.,  20  Fed.  Rep.  87,  88. 

"In  the  absence  of  any  evidence  as  to  the  exercise  of  care  on  his  selection, 
proof  that  a  servant  who  has  been  in  that  service  but  two  or  three  weeks  was 
incompetent  when  employed  need  not  be  supplemented  by  proof  of  the  com- 
pany's knowledge  of  his  incompetency.  The  presumption  that  defendant  had 
done  its  duty  is  overcome  by  proof  that  the  servant  was  incompetent  when 
employed."   McGrath,  J.,  in  Lee  v.  Alich.  Cent.  R.  R.  Co.,  87  Mich.  574,  579. 

In  Kersey  v.  Kansas  City,  etc.,  R.  R.,  79  Mo.  362,  it  was  held  that  to  entitle 
a  servant  to  recover  from  the  master  for  an  injury  caused  by  a  fellow-servant, 
it  is  not  sufficient  to  show  that  the  fellow-servant  was  incompetent,  and  that 
the  master  was  negligent  in  employing  him;  it  must  also  be  shown  that  the 
fellow-servant  was  guilty  of  negligence  directly  contributing  to  the  injury. 


604  DUTIES   OF    PRINCIPAL   TO   AGENT. 

TEXAS  &  PACIFIC  RAILWAY  COMPANY  v.  JOHNSON. 
1896.     Supreme  Court  of  Texas.     89  Tex.  519. 

Brown,  Assoc.  J. — Joe  Johnson  was  in  the  employ  of  the  ap- 
pellant as  conductor  of  a  freight  train  and  at  the  time  of  his  injury 
was  engaged  in  the  discharge  of  his  duty  as  conductor  on  a  freight 
train  going  west  from  Fort  Worth.  The  injury  occurred  on  the 
second  day  of  June,  1891.  The  train  on  which  Johnson  was  acting 
as  conductor  stopped  at  a  water  tank  for  the  purpose  of  taking 
water,  and  stayed  there  the  usual  and  necessary  time.  When  about 
to  leave  the  tank  the  train  on  which  Johnson  was,  was  run  into  from 
the  rear  by  another  freight  train,  which  was  known  as  the  second  sec- 
tion of  the  first  train.  The  second  section  was  in  charge  of  one  C.  S. 
Roberts  as  conductor. 

We  copy  the  following  from  the  conclusions  of  fact  as  found  by 
the  court  of  civil  appeals  : 

"3.  That  the  regular  conductor  of  section  No.  2  of  train  17  was 
one  Conrad,  but  for  some  reason  he  did  not  go  out  on  his  train  that 
night,  as  was  expected,  but  one  Roberts  was  put  in  charge  of  the 
train  as  conductor,  and  plaintiff  did  not  know  that  Roberts  was  put 
in  charge  of  the  second  section  which  was  to  follow  him  that  night, 
and  could  not  have  known  thereof  by  the  use  of  ordinary  diligence, 
as  he  left  Fort  Worth  with  his  train  some  time  before  Roberts  was 
put  in  charge  of  section  two  of  the  train. 

"4.  That  Roberts  was  in  the  employment  of  defendant  as  a 
brakeman,  but  had  been,  in  May,  1890,  appointed  also  to  the  position 
of  'extra  conductor.'  An  extra  conductor,  as  proven  by  the  defend- 
ant's officers,  is  a  man  that  runs  other  conductors'  trains  when  they 
are  laying  off,  sick,  or  something-  of  that  kind,  or  might  be  called 
upon  to  act  upon  any  train  in  the  absence  of  the  regular  conductor. 
An  extra  conductor  has  no  regular  caboose  crew.  The  plaintiff,  at 
and  before  the  accident,  knew  that  Roberts  had  been  appointed  extra 
conductor,  and  was  liable  to  be  put  in  charge  of  trains  at  any  time. 

"5.  The  plaintiff  testified  that  he  did  not  know,  and  had  not  been 
informed  prior  to  the  time  of  the  injury,  that  Roberts  v/as  a  reckless, 
incompetent  conductor ;  but  the  evidence  showed  that  such  was  Rob- 
erts' general  reputation  among  the  employes  of  appellant  on  the 
division  of  the  road  w^here  plaintiff  and  Roberts  were  both  engaged, 
upon  the  testimony  of  which  employes  plaintiff  mainly  relied  to  show 
this  general  reputation,  and  that  plaintiff  and  Roberts  were  per- 
sonally acquainted.  Whether  he  had  such  knowledge  then  was  a 
controverted  issue  in  the  case. 

"/.  Plaintiff's  injury  was  caused  by  the  negligence  and  reckless- 
ness of  Roberts,  conductor  on  the  second  section  of  the  train,  in  fail- 
ing to  have  his  train  under  control,  as  required  by  defendant's  rules, 
when  he  ran  into  the  water  station. 


,s  and  tT 


me 
rip. 


:e  for  fitteen 
ed  as  extra  o 
iicers  knew  r. 
hat  at  that  iin:-- 
;  good  or  bad." 
The  majority  l  - 
■f  the  district  ':< 
ating  their  reaS' 
"The  court  in  e  : 
■i  Roberts'  incon:, 
■flicted  upcnt  the 
~e  company  woi. 
■-ncy,   pr 
:!-y  diHge; 
-'nducior  was  in  cha; 
ol  of  the  plaintiff. 
"The  majority  of  this 
reposition  of  this  ■ 
'id  requires  a  r. 
■riously  affected  ' 
Justice  Hunter 
e  majority,  which  a: 
The  p>oints  of  law  ii. 
e  latter  part  of  the  ' 
e  will  state  the  quesi 
First :    Was  there  a  r 
"  '  have  at!  ' 
of  the  i 
'ctor?    If  noi,  was  i 

iiv;-.   sncli   ;-i  ■;    (ii   iiisi! 


couuucb>' 


r   know,   or   by  the  use 

'in  that  the  incompetent 

that  under  the  con- 

•ion  that  thi 


jurv  !f 


int  as  a  brakem; 
s  was  reckless 
hat  hf^.  R'->bt^r^c 


or  the 


6o4 
TEXAS  &  FA 


MSON. 


pi-  :;;iat  at  condi: 
\^  as  engaged  in 
train  going  wes 
second  day  of  "^ 
■  i  -   conducto 
water,  and  > 
to  leave  the  : 
the  rear  by  a 
tion  of  the  ^"i 
Roberts 


one 


•f   takuu;- 

ricn  was  jnh 

■  cond  ser- 

sertinn was 

ine  C.  S. 

lie  did  not  g' 
^'"berts  was 
■1  >t  know 
was  to 
the  u*^" 
IS  trani  soni' 
\  the  train, 
the  ei; 


i'i  < 

I'.nt' 

are 

UpOi 

i  i,'-'  a^;.i;  ; 

An 

extra  co) 

nnd 

before  the  a> 

>,r.n; 

':..  '    r     'uA  -. 

ent  conductr 

div' 

up..' 
this 

sonii 

i  "Liic  lesciiiiony  ( 
general  reputat 
liy  acquainted. 

■  rted  issue  in  i..-.  ....^. . 

laintiflF's  injury  was  caus 

Oi  Robt              ' 

ing 

to  have  i 

>vhe 

n  I'le  ran  into  the  iiv.> 

round  by 

:i  17  was 
rain  that 

-    4"      4-1, 


Roberts  wa-^ 

endant   as    ii 

'  the  position 

y  the  defend 

'IS  when  thev 

u^ht  be  called 

ir  conductor 

T)laintiff,  ai 

i  ed  extr, 

...  any  time, 

iiad  not  been 

-^  reckless. 

A  as  Rob- 

;t    on   the; 

.  .  engaged, 

clied  to  show 

■  rts  were  per 

odge  then  v  ; 

and  reckless- 
t'le  train,  in  fail.- 
iefendant's  rules. 


employer's  liability.  605 

"9.  We  find  that,  at  the  time  Roberts  was  placed  in  charge  of  the 
second  section  of  train  17,  the  division  superintendent  of  de- 
fendant, who  had  control  over  the  appointment  and  discharge  of 
conductors  and  trainmen  on  that  division  of  defendant's  road,  knew 
that  Roberts  was  a  reckless  conductor,  and  had  known  it  for  at  least 
a  month,  and  had  only  a  month  or  two  previous  thereto  investigated 
charges  against  him  for  recklessly  running  into  the  caboose  of  a  train 
at  Coal  Mine  station,  and  found  him  guilty,  and  suspended  him  from 
service  for  fifteen  days ;  but  we  also  find  that  at  the  time  he  was  ap- 
pointed as  extra  conductor,  in  May,  1890,  neither  the  defendant  nor 
its  officers  knew  of  his  incompetency  or  recklessness  as  a  conductor, 
and  that  at  that  time  he  had  made  no  reputation  as  a  conductor, 
either  good  or  bad." 

The  majority  of  the  court  of  civil  appeals  held  that  the  judgment 
of  the  district  court  should  be  reversed  and  the  cause  remanded, 
stating  their  reasons  for  such  conclusion  in  the  following  language : 

"The  court  in  effect  charged  that  if  the  defendant,  with  knowledge 
of  Roberts'  incompetency,  retained  him  in  its  service,  and  the  injury 
inflicted  upon  the  plaintiff  was  brought  al>out  by  that  incompetency, 
the  company  would  be  liable,  even  though  the  plaintiff  knew  of  such 
incompetency,  provided  he  did  not  further  know,  or  by  the  use 
of  ordinary  diligence,  was  unable  to  ascertain  that  the  incompetent 
conductor  was  in  charge  of  the  train  following  that  under  the  con- 
trol of  the  plaintiff. 

"The  majority  of  this  court  are  of  opinion  that  the  concluding 
proposition  of  this  instruction  is  erroneous ;  that  it  vitiates  the  charge 
and  requires  a  reversal  of  the  judgment,  as  in  all  probability  it 
seriously  affected  the  verdict  of  the  jury." 

Justice  Hunter  of  the  said  court  dissented  from  the  opinion  of 
the  majority,  which  dissent  has  been  certified  to  this  court. 

The  points  of  law  involved  in  the  certificate  of  dissent  arise  upon 
the  latter  part  of  the  charge  as  quoted  above,  and  for  convenience 
we  will  state  the  questions  as  follows : 

First:  Was  there  any  evidence  before  the  jury  in  this  case  which 
would  have  authorized  them  to  find  that  before  the  accident  Johnson 
knew  of  the  recklessness  and  incompetency  of  Roberts  as  a  con- 
ductor? If  not,  was  there  error  in  the  charge  of  the  court,  if  it  be 
error,  such  as  to  justify  a  reversal  of  the  judgment  of  the  district 
court  ? 

Second :  If  Johnson  knew  that  C.  S.  Roberts  was  employed  by 
appellant  as  a  brakeman  and  also  as  extra  conductor,  and  knew  that 
Roberts  was  reckless  and  incompetent  as  a  conductor,  but  did  not 
know  that  he,  Roberts,  was  to  go  on  the  road  as  conductor  that  night, 
did  Johnson  assume  the  risk  of  injury  which  might  occur  from  the 
incompetency'  of  Roberts  as  conductor  in  case  he  should  be  put  in 
charge  of  the  train  which  was  to  follow  Johnson's  train  ? 

There  is  no  question  that  Roberts,  the  fellow-servant  from  whose 


6o6  DUTIES    OF   PRINCIPAL   TO   AGENT. 

negligence  the  injury  occurred,  was  incompetent  and  unsafe  as  con- 
ductor, and  that  the  railroad  company  knew  the  fact  when  it 
sent  him  on  this  trip,  and  it  must  be  held  liable  to  Johnson  for  the 
injury  received  by  him  in  the  discharge  of  the  duties  of  his  employ- 
ment b}'  reason  of  the  negligence  of  Roberts  while  performing  his 
duties  as  an  employe  of  the  railroad  company,  unless  it  has  been 
proved  that  Johnson  knew  of  the  unfitness  and  reckless  character  of 
Roberts  before  the  accident.  Railway  v.  Mussette,  86  Tex.  720; 
Railway  v.  Farmer,  73  Tex.  88 ;  Beach  on  Contributor}^  Negligence, 
§§  127,  128. 

Mr.  Beach,  in  his  work  referred  to,  in  §  127,  uses  this  language: 
"The  responsibility  of  a  master  to  each  of  his  servants  for  the  com- 
petency and  fitness  of  the  other  servants  he  employs  to  work  with  him 
is  in  every  way  analogous  to  the  duty  he  owes  them  in  regard  to  the 
machinery  and  all  the  other  instrumentalities  he  furnishes  for  the 
performance  of  the  work."  The  servant  is  not  required  to  investi- 
gate as  to  the  condition  of  the  machinery  furnished  to  him,  nor  is  he 
required  to  examine  into  the  character  of  the  servants  employed  to 
work  with  him ;  but  he  may,  and  generally  must,  act  upon  the  as- 
sumption that  the  master  has  performed  his  duty  in  selecting  and 
retaining  such  servants.  McKinney  on  Fellow-Servants,  §  95  ;  Roll- 
ing Stock  Co.  V.  Wilder,  116  111.  100;  Railway  v.  Meyers,  55 
Tex.  114. 

In  Railway  v.  McNamara,  59  Tex.  258,  in  which  the  injury  was 
caused  by  defect  of  the  track,  the  injured  party  being  a  brakeman 
upon  the  train,  the  court  said :  "The  master  is  chargeable  with  knowl- 
edge which  he  might  have  acquired  by  the  exercise  of  due  care, 
the  same  as  if  he  actually  possessed  it,  whereas  the  servant  has  the 
right  to  assume  that  all  necessary  examinations  have  been  made  by 
the  master,  and  is  not  required,  either  in  person  or  by  another  em- 
ployed by  him  for  the  purpose,  to-  examine  the  machinery  as  to  fitness 
and  sufficiency."  In  another  part  of  the  same  opinion,  after  speaking 
of  the  duty  of  the  master  to  keep  the  track  in  good  order  and  the 
diligence  required  of  the  employe,  the  court  said :  "The  law  requires 
no  such  extraordinary  vigilance  and  care  of  servants,  nor  charges 
them  with  knowledge  of  facts  which  they  could  have  learned  only 
by  their  exercise." 

It  is  claimed  that  Johnson  had  equal  opportunity  with  the  rail- 
road company  to  know  the  character  of  Roberts,  and  for  that 
reason  he  cannot  recover.  This  claim  is  based  upon  the  testimony 
of  Roberts'  general  reputation  among  the  employes  of  the  defendant 
engaged  in  service  with  him.  In  order  to  charge  the  railroad  com- 
pany with  notice  of  Roberts'  unfitness  for  his  work,  by  proving  that 
it  might  have  known  of  such  fact  if  it  had  used  ordinary  care,  the 
plaintiff  proved  that  the  general  reputation  of  Roberts  among  his 
fellow-servants  was  that  of  a  reckless,  careless  and  dangerous  con- 
ductor.    This  evidence  was  admissible  asfainst  the  defendant  for 


A,V7 


i  by  jonnsoi 
iuthori?'  • 

ss  and  ■•: 


ihe  diiterence 

.'  duties  of  the ...    - 

the  duty  of  character  of  its 

•Its,  the  ■-  ■  ^'—  ^•"^-■- 

ompan}-  ' 

^er  oi  c. 
y  a  me^ 
• ter  of   ■ 
:  prove  I 
"r,  and 
•1  siich  rw<.i 
.ide  that  he 


■ !  <J  1  '      I  i 

have 


;ir  a^  mc  aei'^ii'Jani,  i^:. 


.vas  inou'  ls  con- 

■^       '  hen   it 

'or  the 


~  been 
ter  of 
beior  .  720; 


.,......;y  V 

j§  127,  12' 


Vu 


\)'  li  hv.'a 

i ;  to  the 

(.-s  for  the 
;<<  investi- 
r  is  he 
.  !•  ...yed  to 
on  the  as- 
'■'■Z  and 

,,  rRoii- 

./ ;   Ivaiir.  ieyers, 

8,  in  which  the  injury  was 
'  T^arty  being  a  brakeman 
chargeable  with  knovvl- 
.'i;^t  'c  of  due  car 

tlie  sa;  ervant  has  i 


of  the  duty  of  the 

dili.q'ence  r--"-— ■  ■ 
no  such  t 


w  to  ntness 


jrncd  O! 


h  the  r." 

.1    for   i\ 

:  the  testirao 

...;>.:....  the  defend: 

service  .  railroad  co- 

;-  II  _    v.uu  notice  o)  ly  proving  tl. 

it  Tnii,'ht  have  kno  inarv  care,  t 


tiW  defendant   J 


employer's  liability.  607 

the  reason  that  it  was  under  oblig-ation  to  inquire  intO'  the  character 
of  its  servant,  Roberts,  and  its  failure  to  learn  of  his  general  reputa- 
tion among  its  employes  was  of  itself  negligence.  Mr.  McKimiey, 
in  his  work  on  Fellow-Servants,  §  90,  says :  "Evidence  of  general 
reputation  is  admissible  to  prove  the  unfitness  of  a  fellow-servant, 
and  ignorance  of  such  general  reputation  on  the  part  of  the  master 
is  itself  negligence,  in  a  case  in  which  proper  inquiry  would  have  ob- 
tained the  necessary  information,  and  where  the  duty  to  inquire  was 
plainly  imperative."  It  was  not  necessary  for  Johnson  to  prove  that 
he  did  not  know  of  the  incompetency  of  Roberts ;  the  burden  rested 
upon  the  defendant  to  make  that  proof.  Yet,  if  the  evidence  intro- 
duced by  Johnson  of  Roberts'  general  reputation  was  such  as  would 
have  authorized  the  jury  to  find  that  plaintiff  knew  of  Roberts'  reck- 
lessness and  unfitness,  it  would  have  the  same  effect  as  if  introduced 
by  the  defendant,  and  no  more.  In  other  words,  it  was  incumbent 
upon  the  defendant  in  that  case  to  show  Johnson's  knowledge  of 
Roberts'  character,  unless  it  appeared  from  the  testimony  offered  by 
Johnson  himself. 

The  difference  in  the  effect  of  general  reputation  upon  the  rights 
and  duties  of  the  railroad  company  and  Johnson  lies  in  this,  that,  it 
being  the  duty  of  the  former  to  inform  itself  of  the  character  of  its 
servants,  the  proof  of  general  bad  reputation  fixed  the  liability  of 
the  company  without  proving  knowledge  of  the  reputation  or  of 
the  character  of  the  servant,  but.  as  to  the  servant  Johnson,  the  proof 
was  simply  a  means  b}'  which  it  might  be  shown  that  he  knew  of 
the  character  of  Roberts  as  a  conductor.  The  general  reputation 
might  be  proved  in  order  to  show  this  knowledge,  but  it  must  go 
further,  and  either  show  that  he  knew  of  that  reputation,  or  place 
him  in  such  relation  thereto  by  his  surroundings  that  a  jury  could 
conclude  that  he  did  know  of  the  fact.  For  example,  if  the  proof 
had  shown  that  the  reputation  of  Roberts  had  been  discussed  in  the 
presence  of  Johnson,  under  such  circumstances  as  that  a  man  with 
ordinary  sense  of  hearing  must  have  heard  the  conversation,  then 
the  jury  might  conclude  that  he  did  hear  it,  and  that  he  knew  of  such 
reputation,  but  this  would  simply  be  a  matter  of  proof  upon  the  issue 
of  knowledge  of  character  of  Roberts.  In  order  to  entitle  the  de- 
fendant to  have  the  judgment  reversed  in  this  case,  the  testimony 
must  be  such  that  the  jury  could,  in  the  proper  exercise  of  their 
functions,  have  found  that  Johnson  knew  of  the  recklessness  of 
Roberts,  and,  if  it  falls  short  of  this  measure  of  certainty,  then  it 
is  insufficient  to  authorize  the  court  to  reverse  on  account  of  the 
charge  in  question. 

It  would  be  absurd  to  say  that  Johnson  might  prove  the  general 
reputation  of  Roberts  as  a  conductor  in  order  to  fix  liability  on  the 
part  of  the  railroad  company,  but  that,  having  made  this  proof,  he 
is  chargeable  with  notice  of  that  g^eneral  reputation  to  the  same  ex- 
tent as  the  defendant,  and  therefore  could  not  recover.    This  would 


6o8  DUTIES    OF   PRINCIPAL   TO    AGENT. 

make  the  evidence  of  his  right  to  recover  destructive  of  the  very 
cause  of  action  that  it  was  introduced  to  sustain. 

The  facts  show  that  Johnson  did  not  know  of  the  reputation  of 
Roberts,  nor  of  his  reckless  character,  and  the  proof  which  was  in- 
troduced as  shown  by  the  conclusions  of  fact  found  by  the  court 
of  civil  appeals,  was  not  sufficient  to  justify  the  jury  in  finding-  that 
Johnson  had  such  knowledge. 

We  answer  the  first  question,  that  there  was  no  evidence  which 
authorized  the  court  to  submit  a  charge  to  the  jury  upon  the  hy- 
pothesis that  Johnson  knew  of  Roberts'  reckless  character  as  a  con- 
ductor. It  did  not  matter  whether  Johnson  knew  that  Roberts  would 
follow  him  on  the  train  that  night  or  not ;  for,  if  he  knew  that  Rob- 
erts was  to  act  as  conductor  upon  the  second  section  of  that  train,  it 
not  appearing  from  the  evidence  that  Johnson  knew  of  Roberts' 
reckless  character,  no  other  verdict  could  have  been  rendered  under 
the  evidence  than  that  v^^hich  was  rendered  by  the  jury.  If,  there- 
fore, it  be  conceded  that  the  court  erred  in  that  part  of  the  charge 
which  informed  the  jury  that  Johnson  could  recover  if  he  did  not 
know  that  Roberts  was  tO'  follow  him  on  that  night,  it  was  an  im- 
material error,  and  did  not  justify  a  reversal  of  the  judgment  of 
the  district  court. 

Our  conclusion  upon  this  question  renders  it  unnecessary  to  con- 
sider the  second  question  ;  for  the  reason  stated,  that  the  matter  em- 
braced therein  becomes  immaterial  by  the  decision  of  the  question 
herein  considered.  We  therefore  make  no  answer  to  the  second  ques- 
tion embraced  in  the  certificate  of  dissent.^ 


BAULEC  V.  NEW  YORK  &  HARLEM  RAILROAD  COM- 
PANY. 

1874.     Court  of  Appeals  of  New  York.     59  N.  Y.  356. 

Appeal  from  judgment  of  the  general  term  of  the  supreme  court 
in  the  third  judicial  department,  affirming  a  judgment  in  favor  of  de- 
fendant entered  upon  an  order  nonsuiting  plaintiff  upon  trial  at 
circuit. 

This  action  was  brought  to  recover  damages  for  the  alleged  neg- 
ligent causing  of  the  death  of  Thomas  Hammond,  plaintiff's  in- 
testate. 

Said  Hammond  was,  at  the  time  of  his  death,  in  the  employ  of  de- 
fendant as  a  fireman  upon  a  locomotive  running  upon  its  road.  The 
accident  occurred  at  a  junction  of  defendant's  road  with  the  New 

*  Regarding  constructive  notice  to  master  of  servant's  incompetence  see  Chi- 
cago, etc.,  R.  R.  Co.  V.  Doyle,  18  Kan.  58. 


^  &<e  engineer  r 
two  re 
vitch  foi    . 
ipojn   the   er. 
'e  sounded. 
e  Harlem  r< 
reared  tl' 
'V  and   1' 


IS  acts, 
cope  31! 


ain  met  with  a 


or  nine 

enty  moiiiii-,  ■.>  ^h  :  ,- 

nee  was  ofie-  ence  on 

rt. 
LEN,  J. — Ru''  'le  f'^ro'^d  bpfore 

this  act:  i-e- 

d  as  too  '  :;  -- 

be  now  que- 
c  selection  o: 
'ains  in  his  sc 


v.  B.  &  A.  R.  R. 
'.  562 ;  Tarrant  v.    • 
:l.  &  El.  i02.)    Ther. 
39— Rei>. 


6o8 


'he  evKK ; 

'  if  action  u. 
facts  show 
ivobciis.  nor  O'" 
tr.-'duced  as.  sh 
of  civil  appeal:- 
Johnson  had  s 
We  answer 
authorized  the  ■ 
pothesis  that  I' ; 
ditctor.    J I 
follow  hiv 
erts  \A :  ' 

not   :i ' 


f  the  ve 


'  did  nol 

itation  ■ 

•\as  in- 

court 

"r  that 

,  that  there  wa- 

■nee  which 

a  charp'  <     +'- 

"^n  the  hy- 

ivoberts' 

r  as  a  con- 

v-r  Johns ' 

erts  would 

,!it  or  no 

that  Rob- 

•n  the  s( . 

ir  that  train,  it 

ce  that    . 

.  vv   of  Roberts' 

'>ict  could  \r.i\ 

rendered  under 

ts  rendered 

— .     If.  there- 

nrt  erred  in 

ihe  charge 

Johnson  coiilu  r< 

le  did  not 

:w  him  on  that  n 

as  an  im- 

'            wersal  ol 

ihe  j.udg^nent 

,    . '   ;i  render 

ry  to  con- 

]:<:  reason  st:  • 

matter  env- 

■rial  by  the  ■ 

•if  the  quest; 

:  make  n;   "- 

'■■■'  -econd  qii- 

■f  diss  en.: 

.11  lis  action  was 

MTcn'"  riu^incr  of 


H^RT 


>  rr\M. 


-874-     Co. 


'■  3.0- 


.;  \;   I  r.'. '-.    I  i  I  'in     I   .1 

in  the  third  judicial 
it  entered  ui 


in.  favor  of  < 
(jn  trial 


fendant  as  a  fireman  upon  a  ioc- 
accident  occurred  at  a  junctior 

^  Regarding  constructive  notir    '- 
■ago,  etc.,  R.  R.  Co.  v.  Doyle,  i 


■  employ  .  . 
its  road.    1 
with  the  N' 

.,-,„j.^por-  ".("^  r 


employer's  liability.  609 

York  and  New  Haven  road,  and,  as  the  evidence  tended  to  show, 
was  occasioned  by  the  neghgence  of  defendant's  switchman  at  that 
point,  one  jNIcGerty,  who,  after  the  passage  of  the  New  Haven  train, 
changed  the  signal  so  that  it  indicated  that  the  switch  was  right  for 
the  Harlem  train  without  changing  the  switch. 

Plaintiff  ofifered  evidence  upon  the  trial  that  some  six  or  seven 
months  before  this  accident  a  New  Haven  freight  train  met  with  a 
similar  accident  at  this  same  switch.  This  evidence  was  objected  to 
and  received  under  objection.  The  proof  as  to  the  former  accident 
left  the  question  in  doubt  whether  it  was  chargeable  to  AIcGerty  or 
to  the  engineer  upon  the  train.  It  was  a  dark  night.  The  tracks 
of  the  two  roads  ran  parallel  for  some  distance.  McGerty  had  set 
the  switch  for  the  New  Haven  road.  It  did  not  appear  that  the 
bell  upon  the  engine  of  the  New  Haven  train  was  rung  or  its 
whistle  sounded.  McGerty  not  hearing  it  supposed  it  was  a  special 
on  the  Harlem  road  and  changed  the  switch  and  the  train  ran  olT. 
It  appeared  that  the  general  agent  of  the  road  having  authority  to 
employ  and  discharge  switchmen  investigated  the  occurrence,  and 
after  evidence  of  the  facts  continued  AIcGerty  in  his  position.  It 
appeared,  also,  that  he  had  been  in  the  employ  of  the  defendant  for 
eight  or  nine  years ;  had  been  switchman  at  this  point  some  eighteen 
or  twenty  months,  and  at  another  post  about  five  months.  No  other 
evidence  was  offered  of  any  want  of  competenc}^  or  of  negligence  on 
his  part. 

Allen,  J. — But  a  single  question  is  presented  by  the  record  before 
us  in  this  action.  It  is  conceded,  or  if  not  conceded  it  must  be  re- 
garded as  too  firmly  established  as  well  upon  principal  as  by  author- 
ity to  be  now  questioned,  that  if  a  master  is  wanting  in  proper  care 
in  the  selection  of  servants,  and  negligently  or  knowinglv  emplovs 
or  retains  in  his  service  those  who  are  incompetent  and  unfit  for  the 
duties  to  which  they  are  assigned,  he  is  liable  to  respond  to  other 
employes  and  servants  engaged  in  the  same  service,  who  may  sustain 
damage  by  reason  of  such  incompetency  and  imfitness.  And  when 
the  master  is  a  corporation,  necessarily  acting  by  and  through  agents, 
the  acts  of  its  general  agents  charged  with  the  employment  and 
discharge  of  servants,  in  the  performance  of  that  duty,  must  be 
regarded  as  its  acts.  The  corporation  should  be  regarded  as  con- 
structively present  in  all  acts  performed  by  its  general  agents  within 
the  scope  and  range  of  their  ordinary  employment.  It  is  equally 
well  settled  that  when  reasonable  precautions  and  efforts  to  procure 
safe  and  skilful  servants  are  used,  and  without  fault  one  is  employed 
through  whose  incompetency  damage  occurs  to  a  fellow-servant,  the 
master  is  not  liable.  (Laning  v.  N.  Y.  C.  R.  R.  Co.,  49  N.  Y.  521 ; 
Flike  v.  B.  &  A.  R.  R.  Co.,  53  id.  549 ;  Wright  v.  N.  Y.  C.  R.  R.  Co., 
25  id.  562;  Tarrant  v.  Webb,  18  C.  B.  797;  Ormond  v.  Holland, 
El.,  Bl.  &  El.  102.)  There  is  nothing  in  the  case  to  justify  the  impu- 
39 — Reinhard  Cases. 


6lO  DUTIES    OF   PRINCIPAL   TO   AGENT. 

tation  of  a  want  of  care  in  the  first  or  original  employment  of  Mc- 
Gerty,  the  switchman,  by  whose  want  of  care  and  neglect  of  duty,  as 
is  charged,  the  injury  was  occasioned  to  the  deceased,  resultinig  in 
his  death.  The  complaint  is  that  he  was  retained  in  the  service  of  the 
defendant,  and  in  the  same  capacity  as  a  switchman,  after  he  had 
shown  himself  unfitted  for  the  position  and  unsafe  to  be  trusted  in  it. 
Proof  was  given  of  a  single  occurrence  in  respect  to  which  it  was 
claimed  an  accident  similar  to  that  which  resulted  in  the  death  of 
the  deceased  was  occasioned  by  his  neglig"ence  and  carelessness,  and 
that  knowledge  of  the  facts  was  brought  home  to  the  general  agents 
of  the  defendant.  When  as  here  the  general  fitness  and  capacity  of 
a  servant  is  involved,  the  prior  acts  and  conduct  of  such  servant  on 
specific  occasions  may  be  given  in  evidence  with  proof  that  the 
principal  had  knowledge  of  such  acts.  The  cases  in  which  evidence 
of  other  acts  of  misconduct  or  neglect  of  servants  or  employes, 
whose  acts  and  omissions  of  duty  are  the  subject  of  investigation, 
have  been  held  incompetent,  have  been  those  in  which  it  has  been 
sought  to  prove  a  culpable  neglect  of  duty  on  a  particular  occasion, 
by  showing  similar  acts  of  negligence  on  other  occasions.  This  class 
of  cases  does  not  bear  upon  the  case  in  hand,  and  may  be  laid  out  of 
view.  Proof  of  specific  acts  of  negligence  of  a  servant  or  agent  on 
one  or  more  occasions,  does  not  tend  to  prove  negligence  on  the  par- 
ticular occasion  which  is  the  subject  of  inquiry.  When  character 
as  distinguished  from  reputation  is  the  subject  of  investigation,  spe- 
cific acts  tend  to  exhibit  and  bring  to  light  the  peculiar  qualities  of 
the  man,  and  indicate  his  adaptation,  or  want  of  adaptation  to  any 
position,  or  fitness  or  unfitness  for  a  particular  duty  or  trust.  It  is 
by  many  or  by  a  series  of  acts  that  individuals  acquire  a  general 
reputation  and  by  which  their  characters  are  known  and  described, 
and  the  actual  qualities,  the  true  characteristics  of  individuals,  those 
qualities  and  characteristics  which  would  or  should  influence  and  con- 
trol in  the  selection  of  agents  for  positions  of  trust  and  responsibility, 
are  learned  and  known.  A  principal  would  be  without  excuse  should 
he  employ  for  a  responsible  position,  on  the  proper  performance  of 
the  duties  of  which  the  lives  of  others  might  depend,  one  known  to 
him  as  having  the  reputation  of  being  an  intemperate,  imprudent, 
indolent,  or  careless  man.  He  would  be  held  liable  to  the  fellow- 
servants  of  the  employe  for  any  injury  resulting  from  the  deficiencies 
and  defects  imputed  to  the  individual  by  public  opinion  and  general 
report.  Still  more  should  he  be  chargeable  if  he  had  knowledge  of 
specific  acts  showing  that  he  possessed  characteristics  incompatible 
with  the  duties  assigned  him  and  which  might  expose  his  fellow- 
servants  and  others  to  peril,  and  harm.  Frazier  v.  Pennsylvania  R. 
Co.  (38  Penn.  St.  104),  is  adverse  to  these  views.  There  evidence 
was  admitted  over  the  objection  of  the  defendant,  of  repeated  acts 
of  negligence  of  the  conductor  (by  whose  carelessness  the  plaintifif, 
a  brakeman  on  the  train,  was  injured),  resulting  in  collisions  before 


n,  and  ti 
-  1  •- "vv.a  by  v-''>  ,._,,  ;,c  ■,■  ■ 

ie  to  investii;  reputation 

■an  be  i;;  ■     ■  ■  .j-, 

.  :i  been  ;  -t. 

on.  Xeg'.,  §  238,  ai!  & 

r.  "R.  Co.  V.  Rub} 
k,  J.     The  ! 
think  tV'f^  ' 
ig  that  '. 
uiu-  '.are,  prm; 
ine  in  service, 
':t  its  roa 
otice  0' 
ence  or 
-e  cited  c:- 
s  and  want 

I-  :IV    causing    a  ■;     nit;    |)'.ii.r'    i. 


.3  proved  to  haA  s^ly  and  neg-ligrently 


^uiily  ot   -4'  .'  oruer?.  ii 

:)  station  ior  ie^-nnlhir  ;e 

on  after  he  '  jo 

stances  the  i  • 

crson  for  ti' 
obegiv. 
tor.  in 
;ts  not 
.diet  \va. 
a  verdict  for  the  pk 

inrlt  tlip  In-;)    vrri'!.- 

-  y  care.,   u;    ci!-.' 

having  respect  • 
e  consequences  ti 
r  care  in  the  pe. 
such  care  and  c;i 
nnpetent,  or  in  ir 
-s  come  to  otherir 
■poration  must  air^  .  ■      . 
ing  a  servant  incompetei- 
1  nere  is  no  impeachment 


tation  of  a  want  of  car. 
the  switchman,  1- 
;"ed,  the  injury  • 
th.    The  conn  ' 
!  int,  and  in  ! 

>ii<>svn  himself  r 

I 'loof  was  givt 

claimed  an  acc' 

the  deceased  w 

that  knowledge 

of  the  defendav 

a  servant  is  in\  < 

SJifOiflC    OCi 

principal  h: 
I  >f  other  ac 
■s\-hose  acts 
;:;;\e  be€n  ' 


ilrst  or  origi 


qualities  an' 

trol  in  the  sc. 

are  learned  and 

he  empV 

the  du;, 

him  as  ii^ving 

indolent,  or  car 

servants  of  the 

and  defects  imp.;  . 

report.     Still  more 

spi  -■<■  -  -^  <c  showin 

w'  ::ties  ass'. 

ser\a:-Ls  and  others 

Co.  (38  Penn.  St.  - 

was  admitted  over 

of  nepl!::<:Mv:f  of  thv 

a  brak'.  ^he  train. 


■nt  of  A]. 
•  .f  duty,  as 
ultinig  in 
vice  of  the 

-T  he  had 


sitlOll  il: 

.  urrencc 

to  that  which 

h^-  his  negli'."""' 

Ijrought 

.   the.  gei 

■  cts  and 

■1    in   evi' 

nets.     '• 


en  Ihos 

!  •-A  duty  oi!  a 

ence  on  other  oc 

•  '■  in  hand,  and 

'.  :i'f;ence  of  n 

to  prove 

t  of  inu  ■ 


ith  of 

^.  and 
;gents 
ity  of 
uW.  on 
;    that  the 
1  evidence 
employt. 
.:.vestigatio 
h  it  has  be; 
'   '-  occasion, 
Phis  class 
lid  out  of 
r  agent  on 
n  the  pnr 
characl- 

'le  subject  of  investigation,  sp' 
'"'ght  the  peculiar  qualities  - 
•   want  of  adaptation  to  ar 
r  a  par'     '       'uty  or  trust.     It  li 
that  in  acquire  a  general 

'-vn  and  described, 
iTidividuals,  those 
'i  would  '  uence  and  coi 

;v,^'t;  ,:.  •- '-oonsibilit; 

isc  shon' 


jnipn 

the  f.  : 
i'ficienci. 
J  gener 
A'ledge  ' 


was  m: 


i  ■'on  US  viva. 
There  ev 
'  repeatC' 
-^  the  plri: 
n  collisions  befov 


employer's  liability.  6ii 

the  time  of  the  injury  to  the  plaintiff,  for  which  the  conductor  had 
been  lined  by  the  company,  and  that  the  agents  of  the  defendant 
knew  those  facts ;  and  it  was  held  error.  The  court  while  conceding, 
that  the  character  grows  out  of  special  acts,  held  that  it  could  not  be 
proven  by  them,  and  the  case  was  classed  with  those  in  which  char- 
acter is  proved  by  way  of  impeachment  and  in  which  it  would  be  im- 
possible to  investigate  specific  acts  and  in  which  general  reputation 
alone  can  be  given  in  evidence.  It  is  safe  to  say  that  this  decision 
has  not  been  received  with  approval  by  the  profession.  (Whart. 
on  Neg.,  §  238,  and  notes.)  It  is  reviewed  in  Pittsburgh,  F.  W.  & 
C.  R.  Co.  V.  Ruby  (38  Ind.  294),  in  a  very  satisfactory  opinion  by 
Buskirk,  J.  The  court  in  that  case  was  of  the  opinion  and  so  held, 
what  I  thinki  the  most  reasonable  doctrine,  that  for  the  purpose  of 
showing  that  the  officers  of  a  railroad  corporation  did  not  exercise 
due  care,  prudence  and  caution  in  the  employment  of,  or  in  retain- 
ing in  service,  careful,  prudent  and  skilful  persons  to  manage  and 
operate  its  road,  and  for  the  purpose  of  charging  such  corporation 
with  notice  of  the  incompetency  of  its  employes,  specific  acts  of 
negligence  or  unskilfulness  of  such  employes  may  be  proved.  In 
the  case  cited  the  conductor,  through  whose  "gross  negligence,  care- 
lessness and  want  of  attention''  in  leaving  a  switch  unadjusted  and 
thereby  causing  a  collision  and  consequent  injury  to  the  plaintiff, 
was  proved  to  have,  about  a  )'ear  before,  carelessly  and  negligently 
left  a  switch  open  by  which  a  train  was  thrown  from  the  track,  and  a 
short  time  before  the  injury  to  the  plaintiff  and  the  same  fall  to  have 
been  "guilty  of  gross  negligence"  in  disobeying  orders,  to  wait  at 
a  given  station  for  a  train  passing  east,  and  in  signaling  the  engine 
to  go  on  after  he  had  ordered  down  brakes,  from  which  facts  and 
circumstances  the  jury  found  that  the  conductor  was  a  careless  and 
unfit  person  for  that  position.  The  court  merely  remark,  as  to  the 
effect  to  be  given  to  the  evidence  impeaching  the  qualifications  of  the 
conductor,  in  response  to  the  contention  of  counsel  that  the  ver- 
dict was  not  sustained  by  evidence,  that  they  were  satisfied  that 
the  verdict  was  sustained.  The  case  had  been  twice  tried,  resulting 
in  a  verdict  for  the  plaintiff  on  each  trial,  and  the  court  declined  to 
disturb  the  last  verdict. 

The  duty  of  a  railroad  corporation  is  to  exercise  due,  that  is 
ordinary  care,  in  the  selection  and  employment  of  its  servants  and 
agents,  having  respect  to  their  particular  duties  and  responsibilities 
and  the  consequences  that  may  result  from  the  want  of  competence, 
skill  or  care  in  the  performance  of  their  duties.  If  without  exer- 
cising such  care  and  caution,  employes  and  agents  are  selected  who 
are  incompetent,  or  in  any  respect  unfitted  for  the  position,  and  harm 
and  loss  come  to  others  by  reason  of  such  incompetency  or  unfitness, 
the  corporation  must  answer  for  their  neglect  and  want  of  care  in 
employing  a  servant  incompetent  or  untrustworthy. 

There  is  no  impeachment  or  attempt  to  impeach  the  qualifications 


6l2  DUTIES    OF    PRINCIPAL    TO   AGENT. 

and  fitness  of  McGerty  as  a  switchman,  except  by  the  proof  of  a 
single  occurrence,  several  months  before  the  occurrence  in  question. 
It  is  not  contended  that  the  defendant  was  wanting  in  the  exercise  of 
due  care  in  his  original  employment,  and  it  must  be  assumed  that 
he  was  competent  when  employed  and  reasonably  intelligent,  and 
w^as  during  all  the  time  he  was  in  the  service  of  the  defendant,  sober, 
temperate,  attentive  to  his  duties,  carefully,  intelligently  and  suc- 
cessfully performing  the  service  required  of  him  with  the  single  ex- 
ception referred  to.  At  the  time  of  the  accident,  he  had  been  in  the 
service  of  the  defendant  in  different  capacities  for  eight  or  nine 
years,  had  served  as  switchman  over  a  year  and  a  half,  at  or  near  the 
point  at  which  the  plaintiff's  intestate  was  injured.  Six  or  seven 
months  before  the  time  last  referred  to,  a  train  had  been  thrown  from 
the  track  by  a  misplaced  switch  while  McGerty  was  in  charge,  which 
the  plaintiff  claims  was  caused  by  his  carelessness,  want  of  attention, 
or  mistake.  If  it  be  conceded  that  the  negligence  of  McGerty  upon  the 
prior  occasion  is  established,  it  by  no  means  follows  that  the  defend- 
ant was  bound  to  discharge  him  upon  peril  of  being  charged  with 
neglect  and  a  want  of  due  care  in  retaining  him  in  its  service.  An 
individual  who  by  years  of  faithful  service  has  shown  himself  trust- 
worthy, vigilant  and  competent,  and  is  not  disqualified  for  further 
employment,  and  proved  either  incompetent  or  careless  and  not 
trustworthy,  by  a  single  mistake  or  act  of  forgetfulness  and  omis- 
sion to  exercise  the  highest  degree  of  caution  and  presence  of  mind. 
The  fact  would  only  show  what  must  be  true  of  every  human  being, 
that  the  individual  was  capable  of  an  act  of  negligence,  forgetfulness 
or  error  of  judgment.  This  must  be  the  case  as  to  all  employes  of 
corporations  until  a  race  of  servants  can  be  found  free  from  the 
defects  and  infirmities  of  humanity.  A  single  act  may  under  some 
circumstances  show  an  individual  to  be  an  improper  and  unfit  per- 
son for  a  position  of  trust,  or  any  particular  service,  as  when  such 
act  is  intentional  and  done  wantonly,  regardless  of  consequences, 
or  maliciously.  So  the  manner  in  which  a  specific  act  is  performed 
may  conclusively  show  the  utter  incompetency  of  the  actor  and  his 
inability  to  perform  a  particular  service.  But  a  single  act  of  casual 
neglect  does  not,  per  sc,  tend  to  prove  the  party  to  be  careless  and  im- 
prudent, and  unfitted  for  a  position  requiring  care  and  prudence. 
Character  is  formed  and  qualities  exhibited  by  a  series  of  acts,  and 
not  by  a  single  act.  An  engineer  might  from  inattention  omit  to 
sound  the  whistle  or  ring  the  bell  at  a  road'  crossing,  but  such  fact 
would  not  tend  to  prove  him  a  careless  and  negligent  servant  of  the 
company.  The  company  is  only  charged  with  the  duty  of  employing 
those  who  have  acquired  a  good  character  in  respect  to  the  qualifi- 
cations called  for  by  the  particular  service,  and  no  one  would  say 
that  a  good  character  acquired  by  long  service  was  destroyed  or 
seriously  inipaired  by  a  single  involuntary  and  unintentional  fault. 
(Murphy  v.  Pollock,  15  Irish  C.  L.  224.)     But  this  appeal  does  not 


w-as  bon; 


■(liitiit  ill  !\;. 
care  and  a  ' 
it  is  necessa: 
■  ■"  duty  in  :- 

saction  ;    .  it 

•.      .--vh::.-.     '.■  he 

■  ■■:.:'  :-   ;;  -,„'■.-.  in 

.'  :.ing"  the 
'Iter  by 
!  such  ii, 
:a"ge  swic. .    .  _ 
'^'nan  himself  aib' 

mie  transaction,  l>..!l  i  -. 

upon  this  triril  ^  ent  and 

f  the  defen'.i  aouut 

J  or  the  fault  ■  or  the 

.eer  in  cl  ^1'. 

is  no  ev:  ■  e 

■ ich  of  his  tra: 
■  ■^^^e  service  n 
'  'liman  he... 
'  h  ol  the  train  by 
:  reasonably,  in  + 
hupposen 
t  signal  \ 
e  causing-  tiM 
v»>ncluston  that  • 
a  negligent  or  ■:  \ 

;  .ible  mail  i.^,; 

visedly  and  '. 
.1    carelessness   a 
act  in  a  man  a 
'i€  no  imputation 
-onable  care  cou- 
lining  him. 
justify  a  recovei 
'uust  be  inferred 


;)nd  fitness  of  . 
occurrence, 
,  .     :.ot  contended 
due  care  in  his  or' 
lie  was  competent 
was  during-  all  the 
temperate,  att' 
cessfully  perfi  : 
ception  referrc 
service  of  the 
years,  had  ser . 
point  at  whic'- 
months  before 
the  track  ! 
the  plaint' 
or  mi 
prior 


.vitchrK 


iCb,   ca:c!ul' 
required  d 
':  of  the 
ififerent 
over  a }  • 
iitestate 
rred  to,  j 


faithful  service  1 

*  -^L.  and  is  not  vi*- 
r  incompetent   i 
e  or  act  of   ' 
ree  of  canti'^ 
:  must  b<' 


(lef'j;-  .    . 

circuni.-L. 

son  for  a 

act  is  int 

or  malicio; 

may  conclusively 

inabihty  to  perfoD 

neglect  does  not,  p 

prudent,  :.  '.  '     ■-  '' 

vJuiractei 

not  b}'  a 

sourd  the 

'  not  tend  to 

.any.    The  co 

those  who  have  a. 

cations  called  for  u .   i:,v.  ;...., 

that  a  gfood  character  acauire 

seriot' 

(Mu., 


proof  of  a 

:i  questii 
'  -r^rcise  . . 
cd  that 
It,  and 
..  sober, 
;d  suc- 
j;-le  ex- 
Ijcen  in  the 
lit  or  nine 
ear  the 
V  ^1  seven 
':rown  from 
•  narge,  which 
.nt  of  attention, 
ry  upon  the 
Mic  defend- 
:d  with 
...ce.    An 
asclf  trust- 
'■  further 
•id  not 
i  omis- 
i  mind, 
iiuiu  beii  _ 
L>rgetfuln. 
ail  employes 
■  "e  from  i 
inder  so  . 
and  unfit  p  ■ 
as  wh.en  s\ 


v:  actor  and  . 
Je  act  of  casu 
areless  and  r 
'  ■"  '  pruden' 
>f  acts,  a; 
ion  omit 
it  such  i,' 
\'ant  of  t 
±  employ  ii 
I  to  the  qua!: 
one  wor^  ' 
IS  destr' 
:tentionai  i^l.. 
appeal  does  :;■ 


4 


employer's  liability.  613 

necessarily  depend  upon  the  correctness  of  this  view  of  the  effect  to 
be  given  to  a  single  instance  of  neglect.  All  that  the  corporation 
defendant  was  bound  to  do,  after  the  occurrence,  was  to  inquire  into 
it,  and  ascertain  the  facts,  and  act  in  the  discharge  or  retention  of  the 
switchman  with  reference  to  the  facts  as  ascertained,  as  reasonable 
prudence  and  care  should  dictate,  and  if  such  care  and  caution  was 
exercised,  the  company  is  not  liable,  although  its  general  agent  erred 
in  judgment  in  retaining"  the  switchman  in  the  same  service.  Or- 
dinary care  and  a  reasonable  exercise  of  discretion  and  judg^iient  is 
all  that  is  necessary  to  absolve  the  corporation  from  the  charge  of 
neglect  or  duty  in  such  a  case. 

The  transaction  upon  which  stress  is  laid,  and  by  force  of  which  it 
is  now  sought  to  charge  the  defendant  with  the  consequences  of  the 
servant's  neglect  on  this  occasion,  and  the  ag'ency  of  the  switchman 
in  causing  the  accident  on  that  ocasion  was  investigated  immediately 
thereafter  by  the  agent  of  the  defendant  whose  general  duties  in- 
cluded such  investigation,  and  who  was  authorized  to  employ  and 
discharge  switchmen  at  that  point.  He  had  the  statement  of  the 
switchman  himself  and  in  this  record  we  have  his  sworn  statement  of 
the  same  transaction,  and  assuming  as  we  must  that  the  facts  dis- 
closed upon  this  trial  were  made  known  to  the  agent  and  representa- 
tive of  the  defendant,  then  it  was  certainly  a  question  of  doubt 
whether  the  fault  of  that  accident  was  upon  the  switchman  or  the 
engineer  in  charge  of  the  train  that  was  thrown  from  the  track. 
There  is  no  evidence  that  he  rang  the  bell  or  gave  other  signal  of  the 
approach  of  his  train  as  he  was  bound  to  do  b}'  the  rules  of  the  road, 
and  of  the  service  upon  a  train  going  south  on  the  New  Haven  track. 
The  switchman  heard  no  signal  and  only  learning  of  the  near  ap- 
proach of  the  train  by  the  noise  made  by  the  running  of  the  train  he 
might  reasonably,  in  the  hurry  and  haste  incident  to  the  occasion, 
have  supposed  that  it  was  an  extra  upon  the  Harlem  track,  which 
did  not  signal  when  going  south,  and  thus  be  innocently  led  into  the 
mistake  causing  the  accident.  The  corporation  might  well  come  to 
the  conclusion  that  the  misplacing  of  the  switch  on  that  occasion  was 
not  a  negligent  or  careless  act  on  the  part  of  the  switch  tender.  And 
if  a  reasonable  man  might  infer  that  the  switchman  was  careless,  or 
acted  unadvisedly  and  without  proper  caution,  it  does  not  follow  that 
general  carelessness  and  imprudence  can  be  inferred  from  this 
single  act  in  a  man  as  to  whose  conduct  on  other  occasions  there 
could  be  no  imputation  of  negligence  or  inattention,  or  that  a  want 
of  reasonable  care  could  be  inferred  on  the  part  of  the  corporation 
in  retaining  him. 

To  justify  a  recovery  by  the  plaintiff  from  this  single  instance 
there  must  be  inferred  not  only  the  carelessness  as  a  characteristic 
of  the  switchman  and  his  consequent  unfitness  for  that  particular 
service,  but  the  want  of  due  care  in  the  corporation  in  investigating 


6l4  DUTIES    OF    PRINCIPAL    TO   AGENT. 

the  occurrence  and  determining  upon  the  retention  of  the  man.  The 
corporation  did  not  guarantee  the  absohite  fitness  of  their  servants 
and  agents  for  their  respective  employments,  and  is  only  responsible 
for  some  fault  in  employing,  or  continuing  them  in  its  service.  The 
question  in  this  case  was,  whether  the  single  occurrence  detailed  by 
the  witness,  in  connection  with  other  circumstances  and  with  his 
general  character  and  conduct,  was  such  as  to  make  it  necessary 
for  the  defendant  in  the  exercise  of  proper  care  and  prudence,  such 
as  the  law  enjoins,  to  discharge  this  switchman.  I  am  clearly  of 
opinion  that  there  was  not  sufficient  evidence  to  carry  the  case  to  the 
jury.  A  verdict  against  the  defendant  based  upon  this  evidence 
would  have  been  against  evidence,  and  such  being  the  case  it  was  the 
duty  of  the  court  to  nonsuit.  This  case  as  reported  upon  a  former 
trial  (5  Lansing  436),  and  the  decision  there  made,  is  quoted  with 
apparent  approval  by  Mr.  Wharton  in  his  recent  treatise  on  the  law  of 
negligence,  and  the  principle  there  decided  makes  a  part  of  the  text 
of  section  238  of  that  work.  It  is  not  enough  to  authorize  the  submis- 
sion of  a  question,  as  one  of  fact,  to  a  jury,  that  there  is  "some  evi- 
dence. A  scintilla  of  evidence,  or  a  mere  surmise  that  there  may 
have  been  negligence  on  the  part  of  the  defendants,  would  not  justify 
the  judge  in  leaving  the  case  to  the  jury."  (Per  Williams,  J.,  in 
Toomey  v.  Railway  Co.,  3  C.  B.  [N.  S.]  146.)  The  same  learned 
justice  adds  that  every  person  who  has  had  any  experience  in  courts 
of  justice  knows  very  well  that  a  case  of  this  sort  against  a  railway 
company  could  only  be  submitted  to  a  jury  with  one  result.  In  an- 
other case  it  is  held  that  a  judge  will  not  be  justified  in  leaving  the 
case  to  the  jury  when  the  plaintiff's  evidence  is  equally  consistent 
with  the  absence  as  with  the  existence  of  negligence  in  the  defend- 
ant. In  such  case  the  party  affirming  negligence  has  altogether 
failed  to  establish  it.  and  Earle,  C.  J.,  says,  "that  is  a  rule  which 
ought  never  to  be  lost  sight  of."  (Cotton  v.  Wood,  8  C.  B.  [N.  S.] 
568.)  This  rule  applied  to  this  case  leads  to  an  affirmance  of  the 
judgment  for  it  cannot  be  denied  that  the  evidence  is  as  consistent 
with  the  idea  that  the  defendant  did  carefully  investigate  the  oc- 
currence of  which  evidence  was  given,  and  with  proper  prudence  and 
in  the  exercise  of  due  care  continue  McGerty  in  its  employ,  as  that 
they  were  negligent  in  the  performance  of  that  duty  and  carelessly 
or  imprudently  retained  him  with  knowledge  that  he  was  not  a 
proper  man  for  the  position.  At  most  the  jury  could  only  conjecture 
that  the  defendant  might  have  been  wanting  in  the  care  and  caution 
proper  to  be  exercised  in  such  a  case,  and  if  so  the  case  was  properly 
withheld  from  the  jury.  (Avery  v.  Bowden,  6  E.  &  B.,  973,  974; 
McMahon  v.  Lennard,  6  H.  of  L.  Cases,  970,  993.) 

I  am  of  the  opinion  that  the  plaintiff  was  rightfully  nonsuited, 
and  that  the  judgment  should  be  affirmed. 


•pt  roU' 


(1    bv  pi: 


at  Kq_n 


V  or  iiiiuif ' 


'T  defej. 


See  Laning  \ 


..AM    V .' i  1 1 '. :  1  '. !    a : 


•t  one  of  the  freis:ht 


.11^    UC: 

-s  then  i  . 
so  employi:  . 

cep  aWay  aiv  v ...  , 

lid  side-track  'jrder  ai 


pon  said  sia 

•r      -1  (>;    .1       w; 


;he  witness,  ii 
general  c! 

for  the  i^-; 
as   Hi. 


llMUlf 

The 

led  by 

'ih  his 


clearly 


case  to  i 

■s   evider 

.   it  was  ' 

■  .•>.  fori; 

ocideci  ;• 

A  the  u 

■      .,-.-,m.t1'. 

•;,.    .,,1>- 

of  the  < 

ho  iias  1 

I  rri';!-  <.■ 

"vVlLil   1 

ant. 
failed 
C'ughr  , 
568.)     Th. 
jiKlg-ment  1".., 
with  the  idea 


allv  consistv 


imance  ot  i 

■^s  consist'. 

te  the  ' 


man  10  ■ 

.   .    .:c  defentl 

p  -oper  to  be  exerci 
■''-''   *^rom  the 
V.  Lenn; 
1  au;  or  thc 
and  that  the  ju 


xiiiy  conjecxr 


.T  ill  I   rm  s  ' 


<nilully  nor 


VICE-PRINCIPAL   DOCTRINE.  615 


All  concur,  except  Folger,  J.,  not  voting. 
Judgment  affirmed.^ 


(b)    VICE-PRINCIPAL  AND   SUPERIOR   SERVANT  DOCTRINES. 

MOORE  V.  THE  WABASH,  ST.  LOUIS  AND  PACIFIC  RAIL- 
WAY COMPANY. 

1885.     Supreme  Court  of  Missouri.     85  Mo.  588. 

Henry,  C.  J. — This  is  an  action  to  recover  damages  for  an  injury- 
alleged  b}^  plaintifif  to  have  been  sustained  by  him  while  in  the  em- 
ploy of  defendant  as  car  repairer.  The  cause  of  action  stated  in 
the  petition  is,  that  at  Stanberry,  a  station  on  defendant's  road,  de- 
fendant kept  a  car  shop,  and  had  in  its  employ  a  foreman  of  car 
repairs,  who  had  sole  charge  and  control  of  hands  employed  to  repair 
cars.  That  on  the  nineteenth  day  of  October,  1881,  and  while  plain- 
tiff was  so  employed  as  a  car  repairer,  the  said  foreman  ordered  and 
directed  the  plaintiff  to  repair  the  draw-head  of  one  of  the  freight 
cars  of  defendant  company,  then  standing  with  other  freight  cars 
upon  a  side-track  of  defendant,  at  said  town  of  Stanberry,  and  while 
said  cars  were  detached  from  any  engine ;  that  said  foreman  of  car 
repairs  then  and  there  promised  plaintiff'  that  he  would  protect  him 
while  so  employed  in  repairing  said  draw-head,  and  would  prevent 
and  keep  away  any  train  or  engine  from  coming  in  or  entering  upon 
the  said  side-track,  and  plaintiff,  in  obedience  to  the  order  and  direc- 
tion, and  relying  on  the  promise  of  said  foreman,  undertook  to  repair 
the  draw-head  of  said  freight  car,  and  while  engaged  thereat,  and 
being  upon  the  side-track  of  said  defendant,  and  between  two  of 
the  freight  cars  of  said  company,  an  engine  of  defendant  came  in 
and  upon  said  side-track,  and  against  the  cars  standing  thereon,  and 
the  car  upon  which  the  plaintiff  was  iat  work  was  driven  back 
against  the  freight  cars  standing  in  the  rear  thereof,  and  plaintiff's 
right  arm  was  caught  and  crushed  between  said  cars  ;  that  the  said 
foreman  failed  and  neglected  to  protect  the  plaintiff  while  at  w^ork  on 
said  draw-head,  and  failed  and  neglected  to  prevent  and  keep  said 
engine  from  coming  upon  said  side-track,  and  utterly  failed  and  neg- 
lected to  notify  or  inform  the  person  in  charge  of  said  engine  that 
plaintiff  was  at  work  upon  the  draw-head  of  said  car,  upon  said 
side-track. 

The  answer  denied  every  allegation  in  the  petition,  and  for  a 
further  defense  alleged,  that  at  and  long  prior  to  the  date  of  plain- 

^  See  opinion  of  Coffey,  J.,  in  Lake  Shore,  etc.,  Ry.  Co.  v.  Stupak,  123  Ind. 
210,  228. 

See  Laning  v.  N.  Y.  Cent.  R.  R.,  49  N.  Y.  521. 


6l6  DUTIES    OF    PRINCIPAL   TO   AGENT. 

tiff's  injury,  the  defendant  had  adopted  a  rule,  requiring-  all  car 
repairers,  when  engaged  in  repairing-  cars,  to  set  out  red  flags  on 
each  side  of  the  place  where  they  were  at  work,  as  signals  of  warn- 
ing to  approaching  trains,  and  that  Kestler,  the  foreman,  and  the 
defendant  and  O'Connor  who  was  at  that  time  engaged  with  plain- 
tiff in  repairing  the  car  in  question,  had  notice  of  the  rule,  but  that 
defendant  and  Kestler  on  that  occcasion  neglected  to  observe  it,  and 
that  the  injury  was  attributable  to  his  own  and  the  negligence  of 
O'Connor,  his  fellow  servant.  The  replication  was  a  denial  of  the 
new  matter  pleaded  in  the  answer.  On  the  trial  plaintiff  had  a  judg- 
ment for  $8,450,  from  which  defendant  has  appealed. 

It  is  virtually  conceded  by  plaintiff  that  no  red  flags  were  set  out, 
as  required  by  the  rule  of  the  company,  but  there  was  evidence  tend- 
ing to  prove  that  plaintiff  had  no  knowledge  that  such  a  rule  had 
been  adopted.  There  was  evidence,  however,  tending  to  prove  the 
facts  alleged  in  plaintiff's  petition,  and  the  question  in  the  cause 
which  presents  the  most  difficulty,  is  whether  plaintiff  and  the  fore- 
man of  car  repairs  were  fellow  servants.  If  they  were  not,  and  the 
foreman  is  to  be  regarded  is  the  alter  ego  of  the  company  in  the 
transaction  which  is  the  basis  of  this  action,  plaintiff  was  absolved 
from  the  duty  of  observing  said  rule  by  the  promise  of  the  foreman 
to  use  proper  precautions  for  his  safety.  Appellant's  counsel  say  that 
the  rule  by  which  to  determine  who  are  fellow-servants  is  well 
stated  by  Mr.  Wood  in  his  work  on  INIaster  and  Servant,  at  page  860, 
as  follows :  "Whenever  the  master  delegates  to  another  the  perform- 
ance of  a  duty,  to  his  servants  which  the  master  has  impliedly  con- 
tracted to  perform  in  person,  or  which  rests  upon  him  as  an  absolute 
duty,  he  is  liable  for  the  manner  in  which  that  duty  is  performed  by 
the  middle  man  whom  he  has  selected  as  his  agent,  and  to  the  extent 
of  the  discharge  of  those  duties  by  the  middle  man,  he  stands  in  the 
place  of  the  master,  but  as  to  all  other  matters  he  is  a  mere  co- 
servant."  The  cases  on  this  subject,  reported  in  the  books,  are 
numerous  and  contradictory,  and  it  would  be  an  endless  task  to 
review,  and  utterly  futile  to  attempt  to  reconcile,  them. 

Whether  the  foreman,  in  this  case,  had  or  had  not  authority  to 
employ  and  discharge  car  repairers,  by  no  means  determines  his  re- 
lation to  the  plaintiff  at  the  time  the  latter  was  injured.  It  is  as- 
serted in  some  of  the  cases  that  it  is  a  test,  but  a  corporation  might 
adopt  a  by-law,  taking  from  every  officer  of  the  company  the  author- 
ity to  employ  and  discharge  hands,  and  vest  it  in  the  board  of  di- 
rectors, still  leaving  with  the  proper  officers  the  control  and  direction 
of  the  work  the  hands  were  engaged  to  perform.  This  would  not 
constitute  the  general  manager,  or  other  general  officer,  a  fellow- 
servant  of  all  the  men  engaged  in  his  department  of  the  service.  If 
the  law  were  otherwise,  a  railroad  corporation  would  escape  liability 
to  its  servants  in  every  case,  unless  it  should  be  proved  that  the 
directors  had  negligently  employed  the  servant  whose  negligence 


•1    L'T    \u--t    .-ir 

'Dti  to  each  ( 


617 


:  u  a  auty 
'  ■  vecl  to  a..  . 
t's  ste?' 
implied! V  ■, 
•ances  for  i  ■ 
til  em  in  rep;:r-, 
■ad  than  doe-  ''- 
instance.     W 
. .     iiany,  to-insj:- 
repair,  the  comp:- 
and  the  foreman, 
duty. 

It  is  true  the  c 
have  the  car  in  q- 

pt  servants  wiiu  wcr. 
,nt  in  that  car,  to  rC: 
company's  business,  if  un: 
poration,  could  not  be  aci 
pairs,  but,  having  orderec 
one  or  more  to  do  tl 
how  and  when  it  sb' 
■    'e  work,  and 
.      re  it  should  l; 
Itself.     It  was  the  du; 
provide  for  the  safet\ 
company  devolved  th 
conducting,  ordering 
m  it.     It  could  not  lu 
'   "Ive  itself  from  li  : 
.  did,  reasonable  r 
..rve  those  rules,  for  ■■ 
ri  the  entire  duty  oi 
at  he  had  to  do  for  th- 
:  as  the  agent  of  the 
cred.     He  did  none  of 

•k,  who  had 

ry where  alon^,  .    .  .._.., 

man  was  a  fellow-servant  of  p 


-"  A1   10   cliC  piaUitlil   to 

d  no  duty  to  any  one, 
ngers  or  shippers  of 
r  of  the  car  was  the 
company  being  a  cor- 

^,^.  ---!-..  Qj.  direct  rc- 

-ited  bv  £       . 


6i6 


DUTIES 


PRINCIPA! 


adopted                              .j^  all  car 

rcj)a;rers,  when  cng;;- 

•  .  flags  on 

each  side  of  the  plac' 

^f  w.arn- 

ing  to  approaching 

iiat  Kestier,                            and  th- 

defendant  and  OT. . 

ts  at  that  tiv                       :Lii  plain 

tiff  in  repairing  . 

)n,  had  -                                but  thn 

defendant  and  K 

casiori  i                                   ■  it   ^ni 

that  the  injury  " 

to  his  c                                        c  of 

O'Connor,  his  f 

'le  repli                                ...il  of  tin 

new  matter  pie:' 

On  th-                                la  judg- 

ment  fo 

•-  ndant  ha.>  ^ 

It  is  • 

Mtiff  that  no                       .e  set  out 

as  reqni 

'pany,  but  th                  vidence  temi 

ing  to  i 

>  knowledge  w,.              -  rule  ha^ 

been  ad 

;ce,  however,  ter                Mrove  th 

r„j|,i  _ 

'.luion,  and  the  ^              •  -u  the  cau.^ 

•:culty,.is  whether                 md  the  fore 

\v  serv^ants.    If  they                 '.  and  th' 

.  the  .alter  ego  of  t'.                ny  in  th- 

's  of  this  action,                          absolve 

lid  rule  by  the  p;    :   .  ..     .  Lau  foreman 

his  safety.    Appellant's  counsel  say  tha 

mine   who  are   fe"'           -  vants   is   we 

rk  on  INTaster  an.                  ,  at  page  S6'  . 

the  perforn- 

.mpliedly  con 

iracced  , 

■>r  which  re                  ^im  as  an  absolut 

duty,  he    - 

i>"i-  in  whicli                    is  performed  b 

the  middle  i 

xted  as  i                  and  to  the  exter. 

of  the  disci  1 

'  y  the  mi                •,  he  stands  in  th 

place  of  the 

.'1  other                  he  is  a  mere  co 

servant."    The 

bject,   n                 1   the   books,   ar 

numerous  and 

1   it  wo!,                '   endless  task  t 

review,  and  utt-. 

.    ;npt  to  n.                       '  i. 

Whether  the  i 

_   case.  h:i                      )t  authority  t. 

employ  and  disn 

wairers,  by                     determines  his  re 

lation  to  the  ph- 

lime  the                      '  '"Med.     It  is  a.^ 

serted  in  some  c  / 

lat  it  is  ;                             uration  migii 

adopt  a  by-law,  ' 

very  ofi'                          pany  the  author 

ity  to  employ  a, 

hands,    ■                      :  the  board  of  d 

rectors,  still  leax 

'■roper  c                         itrol  and  directio 

of  the  work  the 

engaged        ,                   This  would  m 

constitute  the  t- 

;er,  or  other  ^^eneral  officer,  a  fellow 

servant  of  all  tb 

,.  ,,cd  in  his  '^^ -        nent  of  the  service      ' 

the  law  were  otl; 

1  railroad  CO f                 would  escape  h..: 

to  its  servants 

case,  unless    :    .;:  -uid  be  proved  that  u. 

directors  had  r  . 

,    employed  the  servant  whose  negligenc 

VICE-PRINCIPAL   DOCTRINE.  617 

occasioned  the  injury,  or  retained  him  in  the  service  after  learning 
his  unfitness.  If  we  may  venture  a  general  proposition  on  the  sub- 
ject, it  is,  that  all  are  fellow-servants  who  are  engaged  in  the  prose- 
cution of  the  same  common  work,  leaving  no  dependence  upon  or 
relation  to  each  other,  except  as  co-laborers  without  rank,  under  the 
direction  and  management  of  the  master  himself,  or  of  some  servant 
placed  by  the  master  over  them.  If  a  person  employs  another  to  per- 
form a  duty  which  he  w'ould  have  to  discharge  if  another  were  not 
employed  to  do  it  for  him,  such  employe,  as  to  that  service,  stands  in 
the  master's  stead,  with  relation  to  other  persons.  A  railroad  cor- 
poration impliedly  contracts,  not  only  to  furnish  suitable  machinery 
and  appliances  for  its  employes  to  operate  and  work  with,  but  to 
keep  them  in  repair,  and  the  latter  duty  stands  upon  no  different 
ground  than  does  its  obligation  to  furnish  suitable  machinery,  in  the 
first  instance.  When  he  whose  duty  it  is,  as  representative  of  the 
company,  to  inspect  the  machinery,  sends  any  of  it  to  the  shop  for 
repair,  the  company  is  at  once  chargeable  with  notice  of  its  condition, 
and  the  foreman,  in  having  it  repaired  for  use,  is  in  the  line  of  his 
duty. 

It  is  true  the  company  was  under  no  obligation  to  the  plaintiff  to 
have  the  car  in  question  repaired  at  all.  It  owed  no  duty  to  any  one, 
except  servants  who  were  to  use  it,  or  passengers  or  shippers  of 
freight  in  that  car,  to  repair  it,  but  the  repair  of  the  car  was  the 
company's  business,  if  undertaken  at  all.  The  company  being  a  cor- 
poration, could  not  be  actually  present,  either  to  make  or  direct  re- 
pairs, but,  having  ordered  its  repair,  it  had  to  be  represented  by  some 
one  or  more  to  do  the  work,  and  by  some  one  to  determine  where, 
how  and  when  it  should  be  repaired.  The  person  who  had  control 
of  the  work,  and  of  the  men  engaged  in  it,  directing  how,  when  and 
where  it  should  be  done,  represented,  in  those  matters,  the  company 
itself.  It  was  the  duty,  a  contractual  obligation,  of  the  company  to 
provide  for  the  safety  of  the  men  at  work  in  repairing  the  car.  The 
company  devolved  that  duty  upon  the  person  who  represented  it  in 
conducting,  ordering  and  managing  the  work,  and  the  men  engaged 
in  it.  It  could  not  impose  that  duty  upon  the  car  repairers,  so  as  to 
absolve  itself  from  liability  for  its  own  negligence.  It  might  make, 
as  it  did,  reasonable  rules,  and  impose  the  duty  upon  the  servants  to 
observe  those  rules,  for  their  own  safety,  but  could  not  impose  upon 
them  the  entire  duty  of  protecting  themselves.  The  foreman,  in 
what  he  had  to  do  for  the  company,  did  not  represent  himself.  Ex- 
cept as  the  agent  of  the  company,  he  had  no  interest  in  the  repair 
ordered.  He  did  none  of  the  manual  labor  in  repairing  the  car,  but, 
for  the  company,  gave  such  orders  and  directions  to  the  car  repairers 
as  he  thought  proper.  That  the  foreman  was  an  inferior  servant  to 
Buck,  who  had  a  general  control  and  management  of  car  repairs 
everywhere  along  the  line  of  the  road,  does  not  determine  that  the 
foreman  was  a  fellow-servant  of  plaintiff. 


6l8  DUTIES    OF    PRINCIPAL    TO   AGENT. 

In  some  of  the  cases  and  text  books  the  rule  is  announced  that, 
where  a  master  has  committed  the  entire  control  and  management  of 
his  business  to  another,  reserving  no  discretion  or  control  to  himself, 
the  person  to  whom  such  power  is  delegated  stands  in  the  place  of 
the  master,  so  that  his  acts  are  in  law  the  acts  of  the  master.  Such 
authority  to  an  agent  woidd  certainly  constitute  him  the  alter  ego  of 
the  principal,  but  it  is  not  true  that,  because  the  master  has  reserved, 
either  to  himself  or  some  superior  agent,  some  control  over  the 
inferior  agent,  the  latter  cannot  stand  in  the  place  of  the  master. 
Strictly  speaking,  all  servants  from  the  general  manager,  down 
through  all  the  grades  of  the  service,  to  a  brakeman,  are  engaged  in 
the  common  work  of  running  trains  of  cars,  and  it  is  only  when  one 
of  these  servants  is  placed  "by  the  master  in  his  stead  to  discharge 
some  duty  which  the  master  owes  to  the  servant,"  that  he  ceases  to 
be  the  fellow-servant  of  the  others,  and  becomes  the  representative 
of  the  master.  Every  spike  driven  into  a  cross-tie  is  driven  with 
reference  to  the  running  of  trains  over  the  road,  and  the  man  who 
wields  the  sledge  to  drive  it,  is,  in  some  sense,  a  fellow-servant  of 
every  one  employed  by  the  company  whose  services  are  necessary  to 
the  running  of  trains.  Says  Mr.  Wood  :  "The  instances  are  rare  in 
which  the  master,  either  by  himself,  or  some  superior  servant,  does 
not  reserve  some  supervision  over  every  department  of  his  business, 
or,  at  least,  reserve  such  a  right  to  himself."     Sec.  438. 

Buck,  the  general  superintendent  of  car  repairs,  was  not  a  fellow- 
servant  of  plaintiff,  and  could  not  have  been  so  regarded  if  he,  in- 
stead of  Kestler,  had  been  present  and  given  the  order,  and  made  the 
alleged  promise  to  protect  plaintiff  in  obeying  that  order.  And  if, 
by  authority  of  the  company,  Kestler  was  placed  there  to  do  what 
fell  in  the  line  of  Buck's  duty,  did  he  not,  in  respect  to  that  matter, 
stand  in  the  same  relation  to  the  company  as  Buck  himself?  And 
if  Buck  had  personally  done  what  it  is  alleged  Kestler  did,  could  the 
company  have  successfully  defended  the  action  on  the  ground  that 
Buck  and  plaintiff  were  fellow-servants?  We  recognize  the  prin- 
ciple that  one  may  act  in  the  dual  character  of  a  representative  of  the 
master,  and  as  a  fellow-servant.  If  it  had  been  the  duty  of  the  fore- 
man, in  this  case,  to  assist,  when  necessary,  in  the  manual  work  of 
repairing  the  car,  in  addition  to  the  other  duties  of  superintending, 
controlling,  and  directing  such  work,  and  he  had  gone  under  the  car 
with  plaintiff  to  assist  in  repairing  it,  and  by  some  negligent  or  un- 
skilful act,  while  so  engaged,  injured  the  plaintiff,  the  latter  could 
not  have  recovered  without  proof  of  facts  which  entitle  one  to  re- 
cover when  injured  in  consequence  of  the  negligence  or  unskilful- 
ness  of  a  fellow-servant.  Under  the  circumstances  proved  in  this 
case,  we  think  that  plaintiff  and  Kestler  were  not  fellow-servants. 

The  defendant's  refused  instructions  asserted  the  following  gen- 
eral propositions,  viz.,  that  although  plaintiff  and  Kestler  were  not 
fellow-servants,  Kestler  was  not  authorized  by  the  company  to  make 


..    h-pRiNCir 
lise  alk 


by  the  com]^ 

■  the  me.' 

'Iv.  in  a 


in  the  parti(. 


nise  to  mc  pi  ;•,  ana  undertook 


i:pUy  dor 
---  being  t!  _ 
while  engaged  in  its  ■ 
as  to  the  employmen 
-m  agent,  will  the  lav> 


id  by  having  n 
;rT-r  '-'^^sonable 
tion,  ail 


ne  judgment  is  aitin 


\v^; 


nf  t 


book? 


iced  tha^ 

■■ement  < 

>  himsel 

place  < 


tiic  ijn-; 
eitht^r 
inferior  ai 


of  the&t 
some  d 
be  tlie 


all 

by  riuii 
fell  in 
star 


Cipie  that  one  ic  . 
master,  and  as  a 
roan,  in  this  cas 


■1  gaged 

•r      -.•!.      V.M   .>. 

when  Oi. 

e  master  in 

discharp 

■  to  the 

ceases  t 

rs,  and 

ientati> 

into  a  V 

•r  th'^  r 

Wood:     "T'  re  rare  i 

:.!iii-.elf,  or  £.' —  ant,  doc 

over  every  busine^ 

:  repairs,  was  not  a  fellov, 
i  not  have  been  so  regarded  if  he,  ii' 
-'■■nt  and  giv'^  1  Hir  nrder,  and  made  tl 


itf  in  ol 
stler  Wt 
:i  he  no: 


t  order.     And  i 
there  to  do  whr 
ct  to  that  matte  1 
■  •     A{?     Av. 
could  t). 
'  gtound  th: 
"'ze  the  pri]- 
\ve  of  tb 
.'  the  fon 
'  work  <> 


:ov€red 

.. .  ,    .,,.-.,,  injiT-'"  ' 
riess  of  a  fellov 
:r.^e,  we  thir.'-  ' 

The  defei 


entitie  one  to  n. 
nee  or  unskilful 
es  proved  in  thi 
ilow-servants. 
ie  following  ger. 


VICE-PRINCIPAL   DOCTRINE.  619 

the  promise  alleged  to  protect  plaintiff  while  under  the  car,  and  that 
notwithstanding  such  promise,  yet  plaintiff  could  not  recover  if  he 
failed  to  set  out  the  red  flag,  as  required  by  the  rule,  or  to  set  some 
one  to  watch  for  the  approach  of  engines  and  trains.  It  being  con- 
ceded, as  it  must  be,  that  the  company  owed  a  duty  to  the  men  under 
the  car  to  provide  for  their  safety,  can  it  be  that  the  foreman  had  no 
authority  in  an  emergency  to  use  any  other  means  than  those  adopted 
by  the  company  ?  That  the  red  flags,  and  nothing  but  the  red  flags, 
was  the  means  he  was  to  employ?  If  for  any  reason  that  would 
clearly,  in  a  given  case,  have  been  insufficient  as  a  warning,  can  it  be 
possible  that  the  foreman  would  be  restricted  to  the  use  of  the  red 
flags  ?  Or  if,  in  such  case,  he  had  had  the  red  flag  set  up,  and  one  of 
the  men  was  injured  in  consequence  of  its  insufficiency  to  give  the 
warning,  that  the  company  would  not  be  liable  to  the  injured  party? 
Has  it  discharged  its  duty  by  simply  adopting  a  means  of  protection 
ordinarily  sufficient,  when  the  person  in  charge  of  the  work  knows 
that  in  the  particular  case  it  is  not  a  sufficient  warning?  If  the  fore- 
man has  authority  in  such  an  emergency,  that  authority  results  from 
his  general  authority  to  perform  the  duty  of  the  company,  in  pro- 
tecting the  employes  under  his  control,  in  the  performance  of  a  dan- 
gerous work  for  the  company,  and  he  was  authorized  to  make  the 
promise  to  the  plaintiff  for  the  company,  and  undertook  to  set  out  the 
red  flags  in  his  possession,  or  to  adopt  any  other  means  necessary  to 
secure  the  safety  of  the  men,  thereby  absolving  them  from  the  duty 
of  setting  out  the  flag,  or  setting  the  watch.  As  to  the  latter,  there 
was  no  proof  of  a  rule  requiring  one  man  to  watch  while  the  others 
worked ;  and  it  was  in  proof  that  while  the  work  in  question  could 
possibly  have  been  done  by  one  man,  it  could  not  be  conveniently  or 
promptly  done  by  less  than  two. 

It  being  the  duty  of  the  company  to  provide  for  the  safety  of  men 
while  engaged  in  its  dangerous  service,  if  it  delegates  such  authority 
as  to  the  employment  of  men,  and  their  control  and  management  to 
an  agent,  will  the  law,  in  the  absence  of  an  express  stipulation  to  that 
eft'ect.  declare  that  such  agent  is  under  no  obligation,  and  has  no 
power,  as  the  representative  of  the  company,  to  provide  means  for 
the  safety  of  servants  whom  he  sends  into  a  place  of  danger  to  work? 
If  so,  the  duty  of  the  company  to  provide  such  security  may  be  easily 
evaded  by  having  no  one  on  hand  to  perform  it.  And  by  simply 
adopting  reasonable  rules,  the  observance  of  which  will  ordinarily 
afford  protection,  although  in  a  given  instance  the  observance  of 
such  regulations  would  afford  no  protection  whatever,  and  the  per- 
son representing  the  company  in  the  direction  of  the  work  and  the 
control  of  the  hands,  knew  the  fact.  Such  abdication  of  duty  can 
certainly  find  no  support,  either  in  reason  or  authority. 

The  judgment  is  affirmed.   All  concur.^ 

^  See  discussion  of  distinction  between  fellow-servant  and  vice-principal  in 
Anderson  v.  Bennett,  16  Ore.  515. 


620  DUTIES    OF    PRINCIPAL    TO    AGENT. 

DOBBIN  V.  RICHMOND  AND  DANVILLE  RAILROAD 

COMPANY. 

1879.     Supreme  Court  of  North  Carolina.     81  N.  C.  446. 

Civil  action  for  damages  tried  at  Spring  Term,  1879,  of  Rowan 
Superior  Court,  before  Schenk,  J. 

The  plaintiff  alleged  that  he  was  employed  by  the  defendant  com- 
pany as  a  train  hand,  under  the  control  and  management  of  one  T. 
W.  Lowrie,  an  employe  and  superintendent  of  the  company,  and  by 
the  direction  of  said  Lowrie,  he  was  engaged  in  digging  gravel, 
when  by  the  negligence  of  the  defendant's  employe,  a  bank  of  dirt 
and  gravel  fell  in  upon  the  plaintiff,  whereby  he  was  greatly  injured, 
having  his  leg  broken  and  being  permanently  disabled  from  perform- 
ing any  actual  work.  The  defendant  denied  the  allegations  of  the 
complaint  and  alleged  that  the  injury  was  caused  by  plaintiff's  own 
negligence ;  and  that  its  employes  and  servants  on  the  material  train 
under  said  Lowrie  were  men  of  ordinary  skill  and  care ;  and  if  plain- 
tiff was  injured  by  the  negligence  of  defendant's  employes,  superin- 
tendent, or  servants,  the  defendant  is  in  no  way  responsible  therefor. 

The  facts  set  out  in  the  statement  of  the  case  are  substantially  em- 
bodied in  the  opinion  delivered  by  Mr.  Justice  Ashe,  and  upon  them 
the  court  below  held  that  the  plaintiff  could  not  recover  on  the 
ground  that  Lowrie  was  a  mere  fellow-servant  of  the  plaintiff. 
Upon  this  intimation  the  plaintiff  submitted  to  a  judgment  of  non- 
suit and  appealed.  And  it  was  agreed  if  this  court  reverse  the 
decision  below,  no  final  judgment  is  to  be  given,  but  only  judgment 
setting  aside  the  nonsuit. 

Ashe,  J. — This  is  an  action  brought  by  the  plaintiff  against  the  de- 
fendant to  recover  damages  for  an  injury  to  his  person  resulting 
from  the  negligence  of  the  defendant.  The  defendant  in  the  answer 
denied  the  allegations  of  the  complaint,  and  for  a  further  defense 
insisted  that  if  the  plaintiff  was  injured  by  the  negligence  of  defend- 
ant's employes,  superintendent  or  servants,  the  defendant  was  not 
responsible  for  the  injury  received. 

The  case  was  submitted  to  a  jury  for  trial,  and  the  evidence  pro- 
duced disclosed  the  facts,  that  the  plaintiff  was  employed  as  a  train- 
hand  and  laborer,  and  at  the  time  of  the  injury  was  engaged  in  dig- 
ging gravel  under  the  direction  of  one  T.  W.  Lowrie,  and  that  said 
Lowrie  was  engineer,  superintendent,  conductor  and  master  of  the 
gravel  and  material  train  of  the  defendant,  whose  business  it  was  to 
employ  and  discharge  hands  connected  with  the  business  for  which 
the  gravel  train  was  used ;  also,  that  he  had  entire  charge  of  this 
branch  of  business  on  his  section  of  the  railroad,  known  as  that  of 
digging  gravel,  putting  the  same  upon  the  track,  digging  ditches  and 
repairing  the  same ;  and  also  repairing  culverts,  etc. 

After  hearing  this  evidence,  his  Honor  expressed  the  opinion  that 


it?  con  I  ft 


;he 


lis  statv. 

).  the  relati 

ed  bv  the  cc 


uieir  11  u 
■_-ntiy  vc  , 
^-servants  or 
..  t  it  is  difficult  u-  .J 
.  ase  in  the  future  as  h 
..articular  facts. 
Where  the  relation 
;-t,  it  is    ■■ 
rities,  a: 
r  is  not  res,. 
,ii'.d  by  the  nc,. 
usiness  or  empi 
nized  by  '' 
And  tb . 
c  undertakes,  ■..- 
isks  of  the  servlv 
■  cllow-servants,  a. 
immon  master,  ; 
L^ut  he  does  not    : 
V  ,  — - -rence  of  ;: 
!e  his  SiV.v 


been 


::  vanes  occa- 

...  in  the  same 

so  universally 

;  -neral  rule  of 

es  to  serve. 


ads,  direct  i, 

_.  they  perfoni' 

ie  must  have  en' 

■■■  ■"^"'-^-    ■■'■'ids  ai.M    -. 

is,  etc. 
lority  of 
and  to 
^eiit  is  what  is  k 
.••r  is  the  scrsant 
t borer  in  furthei 
ot  a  "fellow-ser^ 
s,  because  he  re- 
ol  and  managfe  Uic   i.i  i 
facit  per  alitivi"  applies. 


^:;20 


^aCHIV; 


(^OAD 


4 


CiViL  action  i 
■; ;  .perior  Court, 

ihe  plaintiff  ■< 
pany  as  a  train 
W.  Lowrie,  an 
the  directio 
when  by  Ll^ 
and  gra 
having  ' 
ing  any 


selii,...^  ........ 

Ashe,  J.- 
fendant  to 
frniTi  the  no 


Spring  1 . 

s  employed  ! 

ol  and  r. 
•ndent  oi 
was  engagi 
-fendant's  ei' 
:T,  whereby  i 
crmanently  d.i>d.i 
idant  denied  the 
jury  wa;- 
and  sei  \ 


if  Rowan 

:.int  com 

■f  one  1 . 
. ,  and  b> 
>.;  grave! 
•v  of  dir: 
.  injurefi. 
perfornj 

IS  of  tlN 
ift's  OW' 
iial  trail. 


'linary  skill  una  cure ;  and  if  plain 
of  defendant's  en:  •]..'. es,  superin 
L  is  in  no  way  re  therefor 

nt  of  the  case  arv  'ally  em- 

Mr.  Justice  Asl-  .-on  them 

iaintiff  could  not  recover  on  tht 
■'   tellow-servr»fi*-  of  the  plaintil: 
rnent  of  non 
1    reverse  thv 
IS  to  be  given,  but  only  judgment 


:int.    The  d< 


;;ainst  the  de 
•on  resultin; 
T)  the  answer- 


ant  s  employes,  servar 

responsible  for  t. 

The  case  was 
duced  disclosed  un 
hand  and  laborer,  aii 

!vel  under  th  .  one 

vvas  enginee;  .'^nt, 

.m-uei  and  material  i 

employ  and  discharj.;  ■  . , :: 

the  gravel  train  wa;  Iso,  tha; 

branch  of  business  o,..  .,.,->  .auction  of  : 
digging  gravel,  putting  the  same  upon 
repairing  the  same;  and  also  ■' 

After  hearing  this  evidencr 


iant  was  nc 

the  evidence  pro 

'  — '  rs  a  train 

d  in  dig 

i  .  \\  .  that  sai'- 

^ondiK  .:r  of  tb 

less  it  was  v 

.  .:'ess  for  whic;. 

re  charge  of  thi: 

known  as  that  o 

gging  ditches  an-: 

;j  the  opinion  tlia; 


VICE-PRINCIPAL   DOCTRINE.  621 

the  plaintiff  could  not  recover,  admitting  that  he  was  injured  by  the 
negligence  of  said  Lowrie,  for  the  reason  as  he  alleged  that  Lowrie 
was  a  mere  fellow-servant  of  the  plaintiff. 

Who  is  a  fellow-servant  within  the  meaning  of  the  law  appertain- 
ing to  this  subject,  is  a  difficult  question,  one  that  has  never  been  de- 
cided in  this  state.  And  so  far  as  we  have  been  able  to  find,  no  defi- 
nition of  the  relation  as  a  test  applicable  to  all  cases,  has  as  yet  been 
adopted  by  the  courts ;  and  we  do  not  think  can  be,  so  variant  are  the 
relations  subsisting  between  master  and  servant,  principal  and  agent, 
co-laborer  and  employe,  in  the  various  enterprises  and  employments, 
with  their  numerous  and  divers  branches  and  departments ;  the  cases 
frequently  verging  so  closely  on  the  line  of  demarcation  between 
fellow-servants  or  co-laborers  and  what  are  called  "middle  men," 
that  it  is  difficult  to  decide  on  which  side  of  the  line  they  fall.  Each 
case  in  the  future  as  heretofore  will  have  to  be  determined  by  its  own 
particular  facts. 

Where  the  relation  of  fellow-servants  or  co-laborers  is  found  to 
subsist,  it  is  well  established  by  the  English  as  well  as  American 
authorities,  and  is  conceded  in  the  argument  of  this  case,  that  the 
master  is  not  responsible  for  an  injury  to  one  of  his  servants  occa- 
sioned by  the  negligence  of  a  fellow-servant  engaged  in  the  same 
business  or  employment.  This  principle  has  been  so  universally 
recognized  by  the  courts,  that  it  may  be  regarded  as  a  general  rule  of 
law.  And  the  reason  of  the  rule  is,  that  where  one  engages  to  serve, 
he  undertakes,  as  between  him  and  his  master,  to  run  all  the  ordinary 
risks  of  the  service,  which  includes  the  risk  of  the  negligence  of  his 
fellow-servants,  acting  in  the  discharge  of  his  duty  as  servant  of  the 
common  master,  and  engaged  in  the  same  common  employment. 
But  he  does  not  undertake  to  incur  the  risks  that  may  result  from 
the  negligence  of  the  master,  or  such  person  to  whom  he  may  choose 
to  delegate  his  authority  in  that  branch  or  department  of  business  in 
which  he  is  engaged.  To  impute  the  negligence  of  such  an  agent  to 
the  master,  he  must  be  more  than  a  mere  foreman  to  oversee  a  batch 
of  hands,  direct  their  work  under  the  supervision  of  the  master,  see 
that  they  perform  their  duty,  and  in  case  of  dereliction,  report  them. 
He  must  have  entire  management  of  the  business,  such  as  the  right 
to  employ  hands  and  discharge  them,  and  direct  their  labor,  and  pur- 
chase materials,  etc.  He  must  be  an  agent  clothed  in  this  respect 
with  the  authority  of  the  master,  to  whom  the  laborers  are  put  in 
subordination,  and  to  whom  they  owe  the  duty  of  obedience.  Such 
an  agent  is  what  is  known  as  a  "middle  man,"  wlio  as  well  as  the 
laborer  is  the  servant  of  the  master,  and  although  he  may  work  with 
the  laborer  in  furthering  the  common  business  of  the  master,  he  is 
yet  not  a  "fellow-servant"  in  the  sense  of  that  term  as  used  by  the 
courts,  because  he  represents  the  master  in  his  authority  to  direct, 
control  and  manage  the  business.  To  such  an  agency,  the  maxim  of 
"qui  facit  per  alitim"  applies.     His  acts  are  the  acts  of  the  master ; 


622  DUTIES    OF    PRINCIPAL    TO    AGENT. 

his  duties,  the  duties  of  the  master ;  and  his  neglects  and  omissions, 
the  neglects  and  omissions  of  the  master. 

We  think  this  principle  clearly  deducible  from  the  more  recent  and 
most  approved  adjudications  on  this  subject. 

In  the  case  of  Lanning  v.  N.  Y.  Cent.  R.  R.  Co.,  49  N.  Y.  529,  it 
was  held  that  where  the  business  is  of  such  a  nature  that  it  is  neces- 
sarily committed  to  agents,  as  in  the  case  of  corporations,  the  prin- 
cipal is  liable  for  the  neglects  and  omissions  of  duty  of  one  charged 
with  the  selection  of  other  servants,  in  employing  and  selecting  such 
servants,  and  the  general  conduct  of  the  business  committed  to  his 
care.  To  the  same  effect  is  Flike  v.  Boston  &  Albany  R.  R.  Co.,  53 
N.  Y.  549. 

In  Corcoran  v.  Holbrok,  59  N.  Y.  520,  which  was  the  case  where 
an  operative  had  been  injured  by  the  falling  of  an  elevator  in  conse- 
quence of  a  defect  in  the  chain  by  which  it  was  operated,  the  court 
held  that  when  the  master  delegates  to  one  agent  the  performance  of 
duties  which  he  is  bound  to  perform  towards  his  employes,  the  agent 
occupies  the  place  of  the  master,  and  he  is  deemed  to  be  present  and 
is  liable  for  the  manner  in  which  they  are  performed. 

And  in  Brothers  v.  Carter,  53  Mo.  372,  where  the  plaintiff  was  in- 
jured by  the  falling  of  a  bridge,  the  superintendence  of  the  construc- 
tion of  which  had  been  committed  to  a  head  carpenter ;  it  was  held 
if  the  master  deputes  the  superintending  control  of  the  work, 
with  the  power  to  employ  hands  and  purchase  and  remove  materials, 
to  an  agent,  then  the  master  acts  through  the  agent,  and  the  agent 
becomes  the  master,  the  duties  are  the  duties  of  the  master,  and  he 
cannot  evade  the  responsibilities  which  are  incident  and  cling  to 
them,  by  thus  delegating  to  another.  In  such  case  the  agent  repre- 
sents the  master,  and  though  in  truth  he  may  be  and  is  a  servant,  yet 
in  those  respects  he  is  not  a  co-servant,  a  co-laborer,  a  co-employe, 
in  the  common  acceptation  of  the  term.  He  is  an  agent  and  stands 
instead  of  the  principal,  and  is  not  a  fellow-servant  within  the  mean- 
ing of  the  rule,  as  applied  to  laborers  or  workmen. 

And  again  in  the  case  of  Brickner  v.  N.  Y.  Cent.  R.  R.  Co.,  2 
Lansing  504,  it  was  held  that  the  corporation  cannot  act  personally. 
"It  requires  some  person  to  superintend  structures,  to  purchase  and 
control  the  running  of  cars,  to  employ  and  discharge  men,  and  pro- 
vide all  needful  appliances.  This  can  only  be  done  by  agents. 
When  the  directors  themselves  personally  act  as  such  agents,  they 
are  representatives  of  the  corporation.  They  are  then  the  executive 
head  or  master.  Their  acts  are  the  acts  of  the  corporation.  The 
duties  above  described  are  the  duties  of  the  corporation.  When 
these  directors  appoint  some  person  other  than  themselves  to  super- 
intend and  perform  all  these  executive  duties  for  them,  then  such 
appointee  equally  with  themselves  represents  the  corporation  as 
master  in  all  these  respects ;  and  though  in  the  performance  of  these 
executive  duties,  he  may  be  and  is  a  servant  of  the  corporation,  he  is 


t  in  those  resj^ects 

■  immon  zccfptnU' ■■" 

■  ercises  tlic  sa;in 
labor  like 

and  his  i' 
may  be  likened  Lo  . 
master,   lie  exerci^' 
of  servants,  in  self 
tools,  structures,  n 
use  of  the  other  a) 
five  nets,  are  the 
!•  ■    .ijle  that  he  - 


.res,  m  em  pi 

\  and  tools,  .  .  na-L'. .      ,  ■;■. . 

es  their  or.  is  the  mouth- 

tnd  interpn^ 
by  him.     ]  . 

nsible  will  c  Tiit  coriX>ra- 

II  spepV  arv'  .,  e  acts  are  their 

"*.  his  I  ;crol,  their  control. 

Vias  in  ii  .,  .  ,i    ,v]vlf.  -%!  -h.-  ■  .-r.. 

ice  of  these  e 

■  or  co-serv..: 

V  ;  Mullan  v. 

might  refer  v 

'  principle  \\ ; 

;e  authoritic-^  cir;. 

veral  of  them  w 

nine  do  not  com 
■-  iieretdfore  cited, 
racuse  R.  R.  Co.,  i- 

did  not  sit,  and 
&  Mil.  R.  R.  C 
lined  by  a  y.r 
'■  who  was  a: 

ice  after  notice 

:•  favor  of  the  d. 

•fendant  had  kni . 

le  case  of  Tindal' 

i  set  of  hands  w< 

track.     The  san 

the  gravel,  and  ! 

ed  the  train  through  the 


622 


his  li..ltie,^>,  the  duties 
the  neglects  and 

\Vc  think  this 
most  approved  a. 

In  the  case  of  • 
was  held  that  wb: 
savily  committecJ 
v.ipR]  is  hable  fC'' 
with  the  sele 
servants,  an. 
care.     To  t!  . 
N.  Y.  54- 

In  Co' 
an  jpet;. 
Oiirri.;e 


And 


.'id  omissions, 

■11  ore  recent  and 

n  this  subje 

■^'.  Cent.  R.  ..V 

■  •   D -'':.*>   '■ 

s  of  such  a  1. 

IS  neces 

.;.:  the  '  • 

■he  prin- 

and  om; 

rhartj-ed 

is,  in  en.. 

cf  the  L 

"ioston  6i 

'    Co.,  53 

Y.  520,  which  was  the  case  where 
the  falling  of  an  elevator  in  conse 
V  which  it  was  operated,  the  court 
s  to  one  age  ■  formam. : 

,n  towards  \-  •■  es,  the  ; 

nd  he  is  deemed  10  be  present  aud 
ley  are  perfo;  1  nu!. 
o.  372,  whei  intiif  was  in 

:e  superinten:  !' -  construc- 

■  to  a  head  ;  ^vas  helo. 


to  an  agent. 


Ui    i' 

insi 
ing 

And  a 
Lansing  ^t... , 
"It  requires 
control  the  1 
vi '.-i    ?11    nee 


head  or  master, 
duties  above  de>^ 
these  directors  a] 
intend  and  perfoim 
appointee   equally   v, 
master  in  all  these  rt 
executive  duties,  he  r 


agh  tile  agem,  and  the  agem 

::•  duties  of  the  master,  and  \u 

which  are  incident  and  cling  tu 

oLher.     ""'^  -■'■'^  <;ase  the  agent  repre- 

1  truth  '  and  is  a  servant,  yet 

I  co-enipl 
:;t  and  sK.  ■  . 
within  the  mean- 

inckner  v.  N.    ^  R.  R.  Co.,  .:' 

'-•  .-r'.-r>, ,r'ir;.  r^  ,  t  pcrsonally. 

j.Hirchase  and 
w;')j   ■'.:■'.  •    .-vii.u;^'-  men,  and  pro- 
i>   can   onsv   be   done  by   agent.'N 
agents,  ■ 
die  exec 
)rporation.     ih 
rporation.     Whei' 
themselves  to  super 
e.xcclPl^c  .1       -,  for  them,  then  sue!- 
iselves   repre>evits   the   corporation   a-- 
■    '  !)erformance  of  tli 

the  corporation,  h 


VICE-PRIXCIPAL   DOCTRINE.  623 

not  in  those  respects  a  co-servant,  a  co-laborer,  a  co-employe,  in  the 
common  acceptation  of  those  terms,  an}^  more  than  is  a  director  who 
exercises  the  same  authority.  Though  such  superintendent  ma}'  also 
labor  like  other  co-laborers,  and  may  be  in  that  respect  a  co-laborer, 
and  his  negligence  as  such  co-laborer,  when  acting  as  co-laborer, 
may  be  likened  to  that  of  any  other,  yet  when,  by  appointment  of  the 
master,  he  exercises  the  duties  of  master — as  in  the  employment 
of  servants,  in  selection  for  the  adoption  of  the  machinery,  apparatus, 
tools,  structures,  appliances  and  means  suitable  and  proper  for  the 
use  of  the  other  and  subordinate  servants — then  his  acts  are  execu- 
tive acts,  are  the  acts  of  a  master,  and  then  corporations  are  re- 
sponsible that  he  shall  act  with  a  reasonable  degree  of  care  for  the 
safety,  security  and  life  of  the  other  persons  in  their  employ.  These 
executive  duties  may  also  be  distributed  to  different  heads  of  differ- 
ent departments,  so  that  each  superintendent  within  his  sphere  may 
represent  the  corporation  as  master.  In  controlling  and  directing 
structures,  in  employing  and  dismissing  operatives,  in  selecting  ma- 
chinery and  tools,  thus  he  speaks  the  language  of  a  master.  Then 
he  issues  their  orders  to  their  operatives.  Then  he  is  the  mouth- 
piece and  interpreter  of  their  will.  Their  voice  which  is  silent  is 
spoken  by  him.  He  then  only  speaks  their  executive  will,  not  the 
irresponsible  will  of  a  fellow- workman  or  co-laborer.  The  corpora- 
tion can  speak  and  act  in  no  other  way.  His  executive  acts  are  their 
acts,  his  negligence  is  their  negligence;  his  control,  their  control. 
He  has  in  his  executive  duty  no  equal.  He  is  not,  while  in  the  per- 
formance of  these  executive  duties,  only  the  equal  of  the  common  co- 
laborer  or  co-servant."'.  Harper  v.  Ind.  &  St.  Louis  R.  R.  Co.,  47 
Mo.  567 ;  Mullan  v.  Phila.  &  So.  Alail  &  Steamboat  Co.,  78  Pa.  25. 

We  might  refer  to  other  decisions,  but  we  think  those  cited  estab- 
lish the  principle  which  governs  the  present  case.  We  have  exam- 
ined the  authorities  cited  by  the  counsel  of  the  defendant  and  regret 
that  several  of  them  were  inaccessible ;  but  those  we  have  been  able 
to  examine  do  not  controvert  the  general  doctrine  recognized  in  the 
cases  heretofore  cited,  except  the  case  of  Shearman  v.  Roch.  & 
Syracuse  R.  R.  Co.,  17  N.  Y.  153.  But  in  that  case  two  of  the 
judges  did  not  sit,  and  another  expressed  no  opinion.  In  Davis  v. 
Detroit  &  INlil.  R.  R.  Co.,  20  Mich  153,  the  cause  of  action  was  an 
injury  sustained  by  a  yard-man  of  the  company  by  the  negligence  of 
an  engineer  who  was  alleged  to  be  incompetent,  and  it  retained  him 
in  service  after  notice  of  his  incompetency.  But  the  case  was  de- 
cided in  favor  of  the  defendant,  because  the  plaintiff  failed  to  show 
that  defendant  had  knowledge  of  the  incompetency  of  the  employe. 
And  the  case  of  Tindall  v.  Ohio  &  Miss  R.  R.  Co.,  13  Ind.  366,  was 
where  a  set  of  hands  were  at  work  for  the  company  graveling  a  part 
of  the  track.  The  same  hands  loaded  and  unloaded  the  cars  con- 
veying the  gravel,  and  rode  back  and  forth  on  the  cars.  While  thus 
employed  the  train  through  the  alleged  carelessness  of  the  engineer 


624  DUTIES    OF    PRINCIPAL    TO    AGENT. 

ran  against  an  ox,  was  thrown  off  the  track,  and  one  of  the  em- 
ployes was  killed.  It  was  held  that  the  engineer  and  the  deceased 
were  engaged  in  the  same  general  undertaking,  and  the  representa- 
tive of  the  deceased  could  not  recover.  The  case  is  not  in  conflict 
with  those  cited  above.  The  person  killed  and  the  engineer  were  co- 
laborers.     The  engineer  had  no  authority  over  the  laborers. 

Applying  the  principle  to  be  gathered  from  the  current  of  authori- 
ties to  our  case,  we  think  it  is  clear  that  Lowrie  was  what  is  termed  a 
middle  man ;  for  it  was  in  evidence  that  he  was  engineer,  superin- 
tendent, conductor  and  master  of  the  gravel  and  material  train, 
whose  business  it  was  to  employ  and  discharge  hands  connected  with 
the  business  for  which  the  gravel  train  was  used,  and  that  he  had 
entire  charge  of  the  business  on  his  section  of  the  railroad.  He  was 
no  co-laborer  with  the  plaintiff ;  he  had  no  equal  in  his  business ;  he 
was  the  representative  of  the  defendant.  The  laborers  engaged  in 
the  same  business  were  in  subordination  to  his  authority,  as  master 
pro  hac  vice;  they  were  bound  to  yield  obedience  to  his  commands; 
and  his  acts  were  the  acts  of  the  defendant,  and  his  neglects,  the 
neglects  of  the  defendant. 

We  are  of  the  opinion  there  is  error,  and  the  nonsuit  must  be  set 
aside.  Let  this  be  certified  to  the  superior  court  of  Rowan  county, 
that  further  proceedings  may  be  had  in  accordance  with  this  opinion 
and  the  law. 

Error.  Reversed.^ 


O'BRIEN  V.  AMERICAN  DREDGING  COMPANY. 

1891.     Supreme  Court  of  New  Jersey.     53  N.  J.  L.  291. 

Plaintiff's  action  was  brought  to  recover  damages  for  an  injury 
received  by  him  by  reason  of  his  foot  having  been  drawn  into  the 
machinery  of  a  steam  dredge,  whereon  he  was  employed  as  a  "deck 
hand."  The  dredge  was  owned  by  defendant,  and  was,  at  the  time, 
used  in  dredging  the  James  river,  near  Richmond,  under  a  contract 
with  the  United  States  government. 

The  machinery  had  stopped  because  the  chain  had  jumped  from 
the  drum,  and  the  plaintiff  took  a  position  which  exposed  him  to  the 
injury  if  the  machinery  moved. 

^Accord:    Chicago,  etc.,  R.  R.  v.  May,  108  111.  288. 

"Where  the  master,  or  one  placed  b)'  him  in  charge  of  men  engaged  in  his 
service,  personally  assists  or  interferes  in  the  labor  being  performed  under  his 
direction  and  control,  and  is,  while  performing  such  labor,  or  interfering  with 
its  performance,  guilty  of  negligence  resulting  in  an  injury  to  one  engaged  in 
such  service,  there  is  no  sound  principle  of  law  that  v/ill  excuse  or  exonerate 
the  master  from  liability."'  Boynton,  J.,  in  Berea  Stone  Co.  v.  Kraft,  31  Ohio 
St.  287,  291. 


ny. 

i  -vns  matter  of  cont 

•rkmen  gave 

:  proposed  ni-    . 

•  •  was  a  verdict  ii. : 

■A'.:,LE,  J. — One  ol  I'l. 

\i  on  the  conto.tioa 

of  plaintiff,   was   a 
'Tion  employer,  the  <\^ 
ce  (if  his  act  was  ne; 
'lot  exercise  proper  c; 
iiiploy,  of  which  there 
lie  general  rule,  that 
lie  same  master,  in  ■^. 
n  to  injury   f 

•d.  althougl: 

are  fc  each  o 

.^    :Ce,  and  >:  .: ..ir  any  in,      . 

:!ting  therefrom,  .■■  'wxl  in  a  series  of  cases 

ur  courts  (Harr  .  2  Vroom  293;  Paul- 

•  V.  Erie  R.  R.  C  v.  Burns.  10  id.  117; 

n  V.  Lippincott. 
/  46-^  ).  is  no<"  ^r 


put  in  his  place  a  re; 
injury  to  a  serv:^=  ■ 
thus  conceded  h 
'h  V.  Oxford  Ire 
rber  an  incorpor 
•  was  Oi 
that  the 
been  committed 
iiy  dangerous  e- 
:d  to  use  it  in  re. 
under  siich  cir^ 
notice  of  the  n; 
'  1  be  nej^- 
•r^r  th'.^ 


use  Ot  t; 


ran  against  an 
ployes  was  killed. 
•:•■.•'  engaged  in  t:: 
('  the  decease: 


ecover. 


f  the  eii 
'i  deceased 
; epresenta- 

iu  conflict 


tics,  to  our 
middle  man ;  . 
ten  dent,  cond 
whose  busines 
+be  businc^*;  ■' 

iirire  chci 
iK>  co-iabc 
was  tho  •■ 
the  s:\ 
M-r:  /• 


:ace  that  }!- 
of    t;ie    Cft"  ■ 


his  sect; 

he  had  no 
defendant, 
rdinatiov 
to  yield 
'lefendaj 

's  error,  and 
;he  superior 
•  had  in  acc<  ^ 


'perui- 

•  1   train, 

lected  with 

hat  he  had 

d.     He  was 

i  "css;  he 

-iged  in 

,  as  master 

ommands ; 

gleets,  the 

uit  must  be  set 

'•^'_v,an  county, 

his  opinion 


I 


COMPANY 


machinery  oi 
hand/'  Th:: 
used  in  d' 


if  the  v< 


:-  an  injur} 
, n  into  the 
as  a  ''deck 
1  the  time, 


had  jumped  fr. 
osed  him  to 


V'ICE-PRINCIPAL   DOCTRINE.  625 

The  evidence  was  conflicting  whether  plaintiff  had  been  ordered  to 
take  that  position  by  one  Cannon,  who  was  called  "captain"  of  the 
dredge. 

The  machinery  was  set  in  motion  by  Cannon  and  caused  plaintiff's 
injury. 

It  was  matter  of  contest  upon  the  evidence  whether  Cannon  or 
other  workmen  gave  notice  to  plaintiff'  of  the  danger  of  his  position, 
or  of  the  proposed  movement  of  the  machinery. 

There  was  a  verdict  for  plaintiff,  and  this  rule  was  granted. 

Magie,  J. — One  of  the  reasons  assigned  in  support  of  this  rule  is 
based  on  the  contention  that  Cannon,  whose  act  occasioned  the  in- 
jury of  plaintiff,  was  a  fellow-servant  of  plaintiff',  and  that  their 
common  employer,  the  defendant,  is  not  liable  for  Cannon's  negli- 
gence (if  his  act  was  negligent),  unless  it  appears  that  defendant 
did  not  exercise  proper  care  in  employing  him,  or  in  retaining  him  in 
its  employ,  of  which  there  was  no  proof. 

The  general  rule,  that  servants  emplo3-ed  by  or  under  the  control 
of  the  same  master,  in  a  common  employment,  obviously  exposing 
them  to  injury  from  the  negligence  of  others  so  employed  or  con- 
trolled, although  engaged  in  different  departments  of  the  common 
business,  are  fellow-servants  who  assume  the  risk  of  each  other's 
negligence,  and  cannot  have  recourse  to  the  master  for  any  injury 
resulting  therefrom,  as  announced  and  established  in  a  series  of  cases 
in  our  courts  (Harrison  v.  Central  R.  R.  Co.,  2  Vroom  293;  Paul- 
mier  v.  Erie  R.  R.  Co.,  5  id.  151 ;  McAndrews  v.  Burns,  10  id.  117; 
Ewan  V.  Lippincott,  18  id  192 ;  Rogers  Locomotive  Works  v.  Hand, 
21  id.  464),  is  not  brought  in  question,  but  its  correctness  is  conceded 
by  plaintiff's  counsel. 

On  the  other  hand,  it  is  also  conceded  that  a  master  may  employ 
and  put  in  his  place  a  representative,  for  whose  negligence  occasion- 
ing injury  to  a  servant,  also  in  his  employ,  he  will  be  liable.  The 
rule  thus  conceded  has  been  applied  by  our  courts  only  in  the  case  of 
Smith  V.  Oxford  Iron  Co.,  13  Vroom  467.  The  question  there  was, 
whether  an  incorporated  company  was  liable  to  an  injured  servant 
whose  injury  was  occasioned  by  the  neglect  of  its  president.  The 
case  showed  that  the  superintendence  of  the  business  of  the  company 
had  been  committed  to  its  president.  He  introduced  the  use  of  a 
highly  dangerous  explosive  without  instructing  the  workmen  di- 
rected to  use  it  in  respect  to  its  dangerous  qualities.  This  court  held 
that  under  such  circumstances  a  duty  devolved  on  the  company  to 
give  notice  of  the  qualities  of  the  explosive,  a  failure  to  perform 
which  would  be  negligence,  and  that,  having  entrusted  to  its  chief 
executive  officer  the  superintendence  of  its  business,  it  became  his 
duty  to  give  the  required  information,  and  his  failure  or  neglect  in 
that  respect  was  imputable  to  the  company  and  rendered  it  liable  to 
its  servant  injured  in  the  use  of  the  explosive.  The  superintendent 
40 — Reinhard  Cases. 


626  DUTIES    OF    PRINCIPAL    TO    AGENT. 

of  the  business  was  thus  held  to  be,  in  respect  to  this  duty  owed  by 
the  company  to  its  servants,  a  representative  of  the  company,  whose 
negUgence  was  its  negUgence. 

The  question  to  be  solved  in  the  case  before  us  concerns  the  rela- 
tion between  the  defendant  company  on  the  one  hand  and  Cannon 
and  the  plaintiff  on  the  other  hand,  and  the  rule  to  be  applied  in  re- 
spect to  plaintiff's  injury,  if  occasioned  by  the  negligence  of  Cannon 
in  relation  to  the  common  employer  disclosed  by  the  evidence.  If 
that  relation  comes  within  the  doctrine  of  Smith  v.  Oxford  Iron  Co., 
defendant's  liability  will  be  settled ;  if,  however,  the  relation  is  dif- 
ferent from  that  then  considered,  it  must  be  next  determined  whether 
it  comes  within  the  principles  of  that  case,  or  whether,  upon  that  or 
other  principle,  the  liability  of  the  defendant  is  shown. 

In  determining  the  relation  of  parties,  we  are  bound  to  assume  as 
proved  whatever  the  jury  was  warranted  in  finding  from  the  evi- 
dence to  sustain  plaintiff's  action. 

Thus  considered,  the  evidence  establishes  the  following,  viz. :  that 
defendant  is  an  incorporated  company  engaged  in  the  business  of 
dredging  by  steam  dredges ;  that  Albertson  is  the  general  superin- 
tendent of  the  company,  having  power  to  direct  where  the  dredges 
are  to  operate,  to  supervise  the  employment  of  workmen  and  to  dis- 
charge them;  that  the  steam  dredge,  whereon  plaintiff's  injury  was 
received,  was  directed  to  be  worked  in  the  James  river,  near  Rich- 
mond, under  a  contract  with  the  United  States,  the  control  of 
government  engineers  and  the  supervision  of  an  inspector  stationed 
thereon ;  that  Cannon,  who  was  called  "captain"  of  the  dredge,  was 
authorized  to  employ  men  to  work  on  it,  subject  to  the  approval  of 
the  general  superintendent,  who  had  power  to  disapprove  and  dis- 
charge them ;  that  the  duty  of  the  captain  was  to  operate  the  dredge 
in  said  dredging;  that  plaintiff  was  employed  by  Cannon  as  a  "deck 
hand"  on  the  dredge,  and  his  duty  was  to  aid  in  the  operation  of  the 
dredge,  and  that  Cannon  had  charge  of  the  men  so  employed  and 
they  were  under  him. 

From  this  it  is  obvious  that  the  case  in  hand  does  not  present  the 
same  features  as  that  of  Smith  v.  Oxford  Iron  Co.  The  relation 
which  its  president  and  superintendent  bore  to  that  company  is  here 
paralleled  by  the  relation  of  Albertson  to  the  defendant.  While 
Cannon  was  entrusted  with  some  authority  to  employ  workmen,  yet, 
in  respect  to  the  operation  of  the  dredge  in  the  prosecution  of  de- 
fendant's business,  he  was  not  a  general  superintendent,  but  a  mere 
foreman  of  the  gang  of  workmen  engaged  with  them  in  the  execu- 
tion of  the  master's  work.  He  was  a  superior  and  they  were  in- 
ferior workmen,  but  all  were  employed  in  a  common  operation, 
though  in  different  grades  of  service. 

Does  the  principle  on  which  that  case  was  decided,  or  do  correct 
principles,  fix  a  liability  on  the  master  under  the  circumstances  of 
this  case? 


T}^.-.  ,-.,!p  laid  dow..  ,. ... 

itive  officer  of  an  in> 
the  superintendc- 
workmen,  its  re 


'  anottier.  n. 
...i  own,  the  Id  .. 
.  to  the  workmen  in 
master,  who  is  1'-^^  " 
:  2  Thonip.  Neg^.. 
M'.ice  a  cor, 
Ht  when  it  : 
.  who,  in 
'!ve  of  th.   . 
:h  corporations  to  a : 
■  een  them  an-^'  --'^i- 
-.Hvidual  emj 
!es  governing  ■.  i 
ft  mav  he  th?.T.  -• 


en  may  represent  tii^ 
^'■'^t  a  master  may  '.- 
ts  he  may  repre- 
^.an. 
neither  of  these  pr. 


the  rule  I  have  me 

een  the  relation  wh- 

e  of  his  master  and 

•th  others,  we  are  co 

•ns.  evincing  a  posit; 

'  ■<r  the  same  ?     ' 

■■■ne  line  o^  ' 


al 


•■'or?tioTv,  Ui 

of 

:  .lat 

ment.     It  may  also 

V,    c.  r^Tat  in  some 

.^  be  a  mere 

w^  be  pronoimced  upon, 

'fVolvincr  t:hc  "prh-catioTi 


lal  of  the  master 
.'.i..li  is  the  view  "■  • 
.  287,  and  cases  ■ 
Alton  R.  R.  Co.  v. 
)al,  &c.,  R.  R.  Co..  ^ 
Co.  V,  Bowler,  ^ 
.  V.  Bayfield,  37 

in  the  Supreme  > 


of  the  business  wa 
the  company  to  its 
negligence  was  its 

The  question  to  : 
'-'  ■    'M-tween  the  i 
iC  plaintiff  ot 
I  Oct  to  plaintiff's 
in  relation  to  the 
that  relation  c 
defendant's  li.'i 
ferent  from  th 
it  comes  withii 
other  principle 

In  determining  :i 
proved  whntever  i 


ized  to 


fiand"  on 
dredge,  ::.■ 
they  were: 

From  this  i 
same  features  : 
vvhich  its  presidem 
paralleled  by  the 
Cannon  was  entni- 

i  to  the  opev. 
business,  he 
ioieinan  of  the  gang  < 
tion  of  the  master's  \^ 
ferior  workmen,  but  ail  were  en 
though  in  different  grades  of  scrv 

Does  the  principle  on  whicl 
principle?     '  ■    ■  ' "  '  ■^'•■■ 
this  case? 


d  to  be, 

duty  owed  by 

a  representative 

my,  whose 

in  the  case  before  v 

s  the  rela- 

company  ov.  '''-  •  ' 

id  Cannon 

r  hand,  and 

olied  in  re- 

asioned  1)     lae  ;; 

of  Cannon 

lover  dis< 'i?"vc:er|  ; 

dence.     If 

on  Co., 

is  dif- 

It  must  be  • 

■.;d  whether 

'  that  case,  ci    .. 

.'.!)  f'l.it  or 

;e  defendant  is  si 

■ !  parties,  we 

'     '-'  as!?unir.  as 

..-  warranted 

{rem  the  evi- 

•  establishe-^ 

i'  :  that 

.  ompany 

lusiness  of 

:  :!:  Alber 

,       ,al  superin- 

ver  to  direct 

where  the  dredges 

ioyment  o-i-  - 

''men  and  to  dis- 

.  where. 

ff's  injury  was 

■  '  ,  ' ' 

ver,  near  Rich- 

flie    ''(iiitrol   of 

•  itioned 

:;e,  was 

0  work  on  ■ 

Approval  of 

■i.,^  UaA   f. 

■e  and  dis- 

the  dredge 

\vc!o     C'il 

;  as  a  "deck 

ity  was  •- 

nion  of  the 

. harge  c 

.ployed  and 

iie  case  : 

present  the 

.  V.  Ox' 

:  he  relation 

■  tendent  bore 

any  is  here 

,„    Albe-'--  ■    ^ 

mt.     While 

some  a 

rkmen,  y 

"    ;•  . 

tion  of  de- 

but a  mere 

.  in  the  exec'- 

;  they  were  '.  ■ 

irere  en 

inon  ope  rati' :. 

)f  SCrvi- 

licb 

f,  or  do  corr.,  v 

■'■ 

ircumsta'— ' 

VICE-PRINCIPAL   DOCTRINE.  627 

The  rule  laid  down  in  that  case  is  based  on  the  proposition  that  the 
chief  executive  officer  of  an  incorporated  company,  to  whom  it  has 
committed  the  superintendence  of  its  business,  is,  in  respect  to  duties 
owed  to  its  workmen,  its  representative. 

This  proposition  accords  with  that  announced  by  the  text  writers 
on  this  subject,  viz.,  that  when  a  master  commits  entire  charge  of  his 
business  to  another,  retaining  no  oversight  and  exercising  no  discre- 
tion of  his  own,  the  latter  becomes,  in  respect  to  the  duties  of  the 
master  to  the  workmen  in  his  employ,  an  alter  ego,  or  vice  principal 
of  the  master,  who  is  liable  for  his  negUgence.  Shearm.  &  R.  Neg., 
§  102;  2  Thomp.  Neg.,  n.  1038,  §  34;  Whart.  Neg.,  §  229. 

Since  a  corporation  must,  in  general,  act  by  agents,  it  is  evident 
that  when  it  becomes  an  employer  of  men  there  will  exist  some 
agent,  who,  in  respect  to  its  duties  to  the  employed,  will  be  the  repre- 
sentative of  the  company.  While,  however,  it  may  be  necessary  for 
such  corporations  to  act  in  these  respects  by  agents,  the  relation  be- 
tween them  and  such  agents  will  be  identical  with  that  between  an 
individual  employer  and  such  agents  voluntarily  employed,  and  the 
rules  governing  the  relation  will  be  alike. 

It  may  be  that  a  master,  whether  an  individual  or  a  corporation,  in 
the  conduct  of  an  extensive  business,  may  so  commit  the  charge  of 
distinct  departments  of  the  cominon  work  to  different  agents  that 
each  may  represent  the  master  within  that  department.  It  may  also 
be  that  a  master  may  employ  one  in  a  dual  relation,  so  that  in  some 
respects  he  may  represent  his  master  and  in  other  respects  be  a  mere 
workman. 

But  neither  of  these  propositions  need  now  be  pronounced  upon, 
for  neither  is  directly  involved  in  the  case. 

When  we  examined  the  adjudged  cases  involving  the  application 
of  the  rule  I  have  mentioned,  and  attempting  to  draw  the  line  be- 
tween the  relation  which  will  constitute  an  employe  the  representa- 
tive of  his  master  and  that  which  will  make  him  a  fellow-workman 
with  others,  we  are  confronted  with  a  variety  of  irreconcilable  deci- 
sions, evincing  a  positive  opposition  of  views,  between  courts  admin- 
istering the  same  system  of  laws. 

In  one  line  of  cases,  the  mere  fact  that  one  servant  is  endowed 
with  a  superior  grade  of  service  over  others  who  are  subordinated  to 
him,  is  deemed  to  establish  his  position  as  a  representative  and  vice 
principal  of  the  master. 

Such  is  the  view  taken  in  Ohio,  Berea  Stone  Co.  v.  Kraft,  31  Ohio 
St.  287,  and  cases  therein  collected ;  in  Illinois,  over  dissent,  Chicago 
&  Alton  R.  R.  Co.  v.  May,  108  111.  288;  in  Missouri,  Cook  v.  Han- 
nibal, &c.,  R.  R.  Co.,  63  Mo.  397;  in  Tennessee,  Louisville,  &c.,  R. 
R.  Co.  V.  Bowler,  9  Heisk.  866,  and  in  Michigan,  Chicago,  &c.,  R.  R. 
Co.  V.  Bayfield,  37  Mich.  205. 

So,  in  the  Supreme  Court  of  the  United  States,  it  was  held,  by  a 
divided  court,  that  a  conductor  of  a  railroad  train,  who  had  a  right 


628  DUTIES    OF    PRINCIPAL    TO   AGENT. 

to  command  the  movements  of  the  train  and  to  control  those  em- 
ployed on  it,  was  not  a  fellow-servant  with  such  employes,  but  a 
representative  of  the  company,  for  whose  negligence  it  was  liable. 
Chicago  &  Milwaukee  R.  R.  Co.  v.  Ross,  112  U.  S.  377. 

On  the  other  hand,  there  is  a  line  of  well-considered  cases  which 
repudiate  this  doctrine,  and  hold  that  a  servant,  employed  as  a  fore- 
man with  other  workmen,  is  not,  in  respect  to  such  employment,  a 
vice  principal,  but  only  a  fellow-workman. 

A  "mining  boss"  or  "driving  boss,"  who  were  under  a  general  su- 
perintendent of  a  mine,  were  held,  in  Pennsylvania,  to  be  fellow- 
servants  of  those  working  with  and  under  them.  Lehigh  Valley 
Coal  Co.  V.  Jones,  86  Pa.  St.  432.  A  like  principle  will  be  found  to 
underlie  the  decisions  in  Ruse  v.  Biddle,  112  id.  72 ;  New  York,  Lake 
Erie  &  Western  R.  R.  Co.  v.  Bel,  /(/.  400;  Waddell  v.  Simonson,  id. 
567,  and  Lewis  v.  Seifert,  116  id.  626. 

A  like  view  is  expressed  in  the  courts  of  New  York.  Brick  v. 
Rochester,  &c.,  R.  R.  Co.,  98  N.  Y.  211 ;  McCosker  v.  Long  Island 
R.  R.  Co..  84  id.  '//'■,  Crispin  v.  Babbitt,  81  id.  516;  Malone  v.  Hath- 
away, 64  id.  5 ;  Hussey  v.  Coger,  112  id.  614,  and  Loughlin  v.  State, 
105  id.  159.  In  the  last  cited  case,  Chicago  &  Milwaukee  R.  R.  Co. 
v.  Ross,  supra,  was  disapproved. 

Cases  in  Massachusetts,  some  of  which  carry  still  further  the  lim- 
itation of  the  master's  liability,  are  collected  in  Throop  Dig.,  tit. 
"Master  and  Servant,"  II,  2,  §  56, 

The  following  English  cases  are  in  the  same  line :  Murphy  v. 
Smith,  19  C.  B.,  N.  S.,  361 ;  Feltham  v.  England,  2  L.  R.,  Q.  B.,  33, 
and  Wilson  v.  Merry,  i  L.  R.,  S.  &  D.  App.,  326. 

In  the  absence  of  authority  in  this  state,  we  are  at  liberty  to  adopt 
that  view  which  is  most  consonant  with  the  reason  for  denying  the 
liability  of  a  master  to  a  servant  for  injuries  received  by  the  negli- 
gence of  the  fellow-servant. 

That  liability  is  denied  by  the  law,  because  the  servant  is  pre- 
sumed to  have  entered  upon  his  contract  of  service  with  knowledge 
that  he  would  be  exposed  to  risk  from  such  negligence,  and  to  have 
required  proper  compensation  therefor  in  the  wages  agreed  upon. 

The  exemption  from  liability  which  the  law  thus  raises  out  of  the 
contractual  relation  of  master  and  servant,  does  not,  of  course,  ex- 
tend to  the  liability  of  the  master  for  his  own  negligence,  or  for 
negligence  which  may  be  contemplated  as  his.  So,  if  a  master  su- 
perintend and  manage  his  own  business,  he  will  plainly  be  liable  for 
an  injury  to  a  servant  resulting  from  his  own  negligence;  and  if  he 
withdraw  from  the  superintendence  and  management  of  his  business 
and  substitute  in  his  place  another,  he  will  be  equally  liable  for  the 
negligence  of  his  vice  principal. 

Whether  the  master  retain  the  superintendence  and  management 
of  his  business,  or  withdraws  himself  from  it  and  devolves  it  on  a 
vice  principal  or  representative,  it  is  quite  apparent  that,  although  the 


irzLf 


•ide  the  maci' 
neither  can,  ai 
.tiori  of  all  sudi  v 
execution  of  the 
vhere  necessary, 
ihat  one  should  be  s 
-   .o  the  execution  of 
'  rvice  is  so  essential  and 
)g  upon  a  contr.'-.t  o\ 
i  in  a  proper  <-;^-' 
"nternplation 
.reman,  as  \v^ 
ne  foreman    < 
:e  precise  posi.- 
Although  the  q; 
■xford  Iron  Co.. 


'  work- 
ince  of 

the 
ihe 


eight  of  author; 


not 


:    rent  servant  net*. 

■■:t. 
My  conclusion  '■ 
not  a  conclusiv 
'tat  Hability  will  anst 
.r.e  place  the  master  \  ■ 
when  the  negligent  cru- 
■•'.tion  of  the  mast. 
anaging  his  own 
'Htracting  workn,. 
rhe  result  is,  th,. 
The  trial  judge  lert 
Cannon,  which  cau,^ 
preseritative  of  defen 
But  it  was  clear,  ur 
thin  the  scope  of  hi 
V'  existe 
i  v^ice. .   J 
ui  of  tlie  men  on  th 
ister  in  which  all  wer 
IS  a  fellow-servant, 
a  direction  for  a  vera  ■.  • 
The  rule  to  show  cause  n: 


■    11  ai  S- 
■  from  !, 
service  with  the  irijurt.i 

'eriority  in  grade  of  service 
'■'le  liability  of  the  master. 

^  mploye  has  been  put  in 

^y,  but  i' 

r  foreni 


■ct 


See  collection  of  cases  accord  .i'. 


62S 


W  V,.             ,        .      .    .     ■     ,4...        .,,.^.^            .'.l*-^               ... 

the  traii. 

■'T'A  those  er 

ployed  on  it,  was 

servant 

ves,  but 

■  -•  -      ■■^•^dve  of  1m 

.ii;,  for  wliosc 

,vH§  liable. 

Milwau!. 

Co.  V.  Ross,  112 

,i:e  othe- 

line  of    ■    ' 

-  which 

.  ate  this  ' 

■  ♦h?.t  V. 

-1  fore- 

liiaxi  with  other  w 

iuyinent, 

vice  principal,  but  -. 

A  "mining  boss 

,  '  who  Vyf 

'  general  su- 

perintendent  o^ 

.Vi,  in  Penty 

be  fellow- 

servants  of  th 

and  under 

\iih  Valley 

Coal  Co.  V.  Jo: 

••.     A  like  p; 

'  jund  to 

underlie  the  di 

Biddle,  112 

.,  Lake 

Erie  &  W. 

i,  id.  400;  \'. 

;onson,  / 

567,  and  T_ 

626. 

A  !i: 

'he  courts  of 

Brick  V. 

R<,^^;- 

..  Y.  211 ;  M- 

•ng  Island 

ilabbitt,  8t  h. 

V.  Hiith- 

■,  112  id.  611 

,n  V.  State, 

ise,  Chicago 

■^  R.  R.  Co. 

.  of  which  cai 

cr  tiie  lim- 

.  are  collect. 

Dig.,  tit. 

are  in  the  same 

line:     Murphy  v. 

L  cithara  V.  England, 

2  L.  R.,  Q.  B.,  33, 

:.,  S.  &D.  App.,  326. 

;i;  > 

liberty  to  adopt 

th^.t  N- 

or  denying  the 

li' 

i  by  the  negli- 

That  Ik 

>nt  is  pre- 

umed  to  he . <. 

"...l.ll.^v..      ^, 

■vDowledge 

■  at  lie  would 

;  from  such 

:id  to  have 

d  upon. 

)ut  of  the 

se,  ex- 

>r  for 

negligence  which  may 

ler  su- 

per  intend  and  man^if>^ 

,-able  for 

an  injury  to  a  serv, 

:  and  if  he 

withdraw  from  the  .-  ..■ 

lis  business 

and  substitute  in  his  p'. 

ble  for  the 

n^;  '             of  his  vi 

,'cll. 

the  m: 

n  the  <inpeT^' 

"1  managemfi 

01  hib 

vice  pr       ^ 

VICE-PRINCIPAL   DOCTRIXE.  629 

master  or  his  representative  may  devise  the  plans,  engage  the  work- 
men, provide  the  machinery  and  tools  and  direct  the  performance  of 
work,  neither  can,  as  a  general  rule,  be  continually  present  at  the 
execution  of  all  such  work.  It  is  the  necessary  consequence  that  the 
mere  execution  of  the  planned  work  must  be  entrusted  to  workmen, 
and,  where  necessary,  to  groups  or  gangs  of  workmen,  and  in  such 
case  that  one  should  be  selected  as  the  leader,  boss  or  foreman,  to 
see  to  the  execution  of  such  work.  This  sort  of  superiority  of 
service  is  so  essential  and  so  universal  that  every  workman,  in  enter- 
ing upon  a  contract  of  service,  must  contemplate  its  being  made  use 
of  in  a  proper  case.  He  therefore  makes  his  contract  of  service  in 
contemplation  of  the  risk  of  injury  from  the  negligence  of  a  boss  or 
foreman,  as  well  as  from  the  negligence  of  another  fellow-workman. 
The  foreman  or  superior  servant  stands  to  him,  in  that  respect,  in 
the  precise  position  of  his  other  fellow-servants. 

Although  the  question  here  presented  was  not  involved  in  Smith  v. 
Oxford  Iron  Co.,  Mr.  Justice  Van  Syckel  treated  it  as  settled  by  the 
weight  of  authority  that,  to  exempt  the  master  from  liability,  the 
negligent  servant  need  not  be  on  a  parity  of  service  with  the  injured 
servant. 

My  conclusion  is,  that  the  fact  of  superiority  in  grade  of  service 
is  not  a  conclusive  test  in  determining  the  liability  of  the  master. 
That  liability  will  arise  when  the  negligent  employe  has  been  put  in 
the  place  the  master  would  otherwise  occupy,  but  it  will  not  arise 
when  the  negligent  employe  is  a  mere  boss  or  foreman  in  the  prose- 
cution of  the  master's  work,  such  as  the  master,  if  controlling  and 
managing  his  own  business,  would  necessarily  employ,  and  such  as  a 
contracting  workman  would  contemplate  being  employed. 

The  result  is,  that  the  verdict  in  this  case  cannot  be  sustained. 

The  trial  judge  left  to  the  jury  the  determination  whether  the  act 
of  Cannon,  which  caused  plaintiff's  injury,  was  done  by  Cannon  as  a 
representative  of  defendant,  or  as  a  fellow-servant  of  the  plaintiff. 

But  it  was  clear,  upon  the  evidence,  that  Cannon's  act  was  not 
within  the  scope  of  his  agency  as  representative  of  defendant.  If 
any  such  agency  existed,  it  was  limited  to  the  employment  of  men  in 
defendant's  service.  But  the  act  fell  within  his  authority  as  fore- 
man of  the  men  on  the  dredge  in  the  prosecution  of  work  for  the 
master  in  which  all  were  employed,  and  in  respect  to  which  Cannon 
was  a  fellow-servant.  Therefore,  there  should  have  been  a  nonsuit, 
or  a  direction  for  a  verdict  for  defendant. 

The  rule  to  show  cause  must  be  made  absolute.^ 

^  See  collection  of  cases  accord  26  Cyc.  1310. 

See  Chicago,  etc.,  Ry.  v.  Ross,  112  U.  S.  377,  and  B.  &  O.  R.  R.  v.  Baugh, 
149  U.  S.  368,  and  discussion  of  these  cases  in  8  Harv.  Law  Rev.  57. 

"In  every  case  the  position  of  vice-principal  must  be  determined  by  ascer- 
taining whether  the  act  performed  or  duty  omitted  is  one  the  doing  of  which 
is  charged  upon  the  master  and  delegated  to  the  servant.    In  other  words, 


630  DUTIES    OF    PRINCIPAL   TO   AGENT. 

DWYER  V.  THE  AMERICAN  EXPRESS  COMPANY. 
1892.     Supreme  Court  of  Wisconsin.     82  Wis.  307. 

Appeal  from  the  Circuit  Court  for  Winnebago  County. 

Ten  years  ago  the  plaintiff  brought  an  action  against  the  defend- 
ant, the  American  Express  Company,  to  recover  damages  for  per- 
sonal injuries  which  he  claimed  to  have  received  in  1881,  because  of 
the  negligence  of  one  Colvin,  who  was  alleged  to  be  the  agent  and 
manager  of  the  defendant's  office  at  Oshkosh.  The  complaint 
alleged  that  plaintiff  was  employed  by  the  express  company  to  go 
with  wagon  loads  of  goods  to  and  from  the  defendant's  office  and 
the  railway  depots  in  Oshkosh,  and  to  load  and  unload  such  goods ; 
that  on  a  certain  day  Colvin  drove  one  of  defendant's  teams,  which 
was  hauling  a  load  of  goods  for  the  express  company,  so  negligently 
tliat  the  plaintiff,  who  in  the  course  of  his  employment  was  riding  on 
the  load,  was  injured.  That  case  came  to  this  court  on  an  appeal 
from  an  order  sustaining  a  general  demurrer  to  the  complaint.  Such 
order  was  affirmed.     55  Wis.  453. 

This  action  was  brought  in  1886  to  recover  damages  for  the  same 
injuries.  The  complaint  herein  differs  from  the  complaint  in  the 
former  action  only  in  that  it  is  now  alleged  that  Colvin  had  all  the 
authority  of  the  express  company  at  Oshkosh, — that  is  to  say,  he  was 
defendant's  vice  principal  there, — and  that  it  was  not  his  duty  to 
drive  the  team  which  he  was  driving  when  the  plaintiff  was  injured, 
"but  that  it  was  the  duty  of,  and  said  work  was  performed  by, 
servants  employed  by  the  defendant  for  that  purpose."  The  present 
appeal  is  by  the  defendant  from  an  order  overruling  a  general  de- 
murrer to  the  complaint. 

Lyon,  C.  J. — The  complaint  contains  no  averment  that  Colvin  was 
an  incompetent  person  to  drive  the  team  in  question,  or  that  there 
was  any  defect  in  the  teams,  wagons,  or  appliances  for  making  ship- 
ments of  goods.  It  is  alleged  in  the  complaint  that  the  driving  of 
the  team  was  a  duty  of  servants  employed  by  the  express  company, 
and  it  is  conceded  that,  were  Colvin  an  ordinary  hired  servant  of  the 
company,  the  complaint  would  be  defective  in  that  it  fails  to  charge 
the  company  with  any  negligence  or  breach  of  duty  to  plaintiff  in 
employing  him.  So  we  have  for  determination  the  single  question 
whether  the  mere  fact  that  Colvin  was  the  vice  principal  of  the  ex- 
press company  in  the  transaction  of  its  general  business  at  Oshkosh 
makes  the  company  liable  for  his  negligent  driving  of  the  team, 

whether  the  servant  has  been  put  in  the  place  of  the  master  as  to  the  par- 
ticular service  performed  or  omitted.  If  he  has,  and  his  act  or  omission,  while 
in  that  particular  service,  involves  a  duty  owing  by  the  master  to  the  servant, 
the  master  is  liable  for  injury  resulting  from  such  act  or  omission,  if  the 
injured  servant  is  free  from  negligence  and  has  not  assumed  the  hazard." 
Hackney,  J.,  in  New  Pittsburgh,  etc.,  Co.  v.  Peterson,  136  Ind.  398,  403. 


not   i.>e 


ie.  as  was  rn^ 
rion  hatf 
,old  tha^ 
tio]  oi  au.,"-aer,  such  ;■ 
;i  iiarjle  if  the  subot'' 
■itlier,  without  r^ 
ihey  were  engag 
when  it  overrule^ . 

Other  courts  ; 
co-employe  or  ff 
imaged  in  the  san^ 
mined  by  the  rar 
the  act  being  pe^ 
plies  a  contract 
the  offending  Ci 
other  acts  they  ;■ 
834,  and  cases  ci; 

This  court  is 
that  the  liabilitv 
the  performance  vi 
the  rank  of  the  oiter 
Co.,  38  Wis.  289,  ti 
injuries  caused  b^  '■ 
duty  of  the  fori 
negligently  < 
v/as  a  vice  \:>: 
.riund  that  it  o- 
reasonable  time 
liable  for  the  nc 
to  whom  that  d   >.. 
without  regard  to  tb-. 

In  fiowland  v.  ]\I 
was  employed  as  a  .s' 
■  :iy  track.     He  was 
iv  aring  the  track  w:> 
plaintiff  was  subject 
i>bintiff  lo  remain  ii; 
.  '  .pted  to  run  the  e: 
•    .0  doing  the  c 
'1   that  -the  t 


or  bus- 
jurt  appi: 

!t. 


o  the  latter  rule,  10   wit, 

^n  the  nature  of  the  act  in 

d.  without  regard  to 

nts  V.  C.  &  N.  W.  R. 

liable  to  an  employe  for 

of  repair   ■ '  ■  '-  --  *'- 

s  to  rcD 


The  above  ca- 

sn!iject  under  cr 

;     i,  on  the  pri; 


'J  ' 


DWYER 


N  EXl'RES: 


i8c 


Appeal  fron 
Ten  years  a; 

ant,  the  Amer' 

sonal  injuries  • 

the  neglige- 
manager    - 

allege*' 

with  V 

th- 

tli. 

was  hauling  a  . 

tliat  the  pl?'i^' 

the  load,  ^^ 

from  n 

order 


lorincr  ace 
authority  o ; 
defendant 
drive  the  tcoiu 
■  hut  that  it  V 

a)- 

muirer  to  ■ 
Lyon, C 
an  inccmf 
was  any  dc. .. 
raents  of  good 
■'■'  "-nm  was  :; 
iS  conceci 

1'' 

iiini.     :■ 
c-  mere 
press  company  in  1 
makes  the  compan, 

ticular 


Winrn 


o  have  : 
.io  was  : 
itice    at 
ved  by  tiiC 
ind  from  \h 
md  to  I 
ve  one  i 
i-he  express 
.  se  of  hi.^  '"'' 
>v;e  came 
h1  demu' 


, — and  that  it  w 
:  \dng  when  the  pi 


:.;-fend- 
r  per- 
use of 
:.!,  cat  and 
cohiplai 
to  go 
e  and 


on  an  appeal 


■  tUe  same 
int  in  the 
!,ad  all  the 
ay,  he  wa.-, 
is  duty  1 
.     was  injure^: 
md  said  work  was  performed  b} 
ant  for  i'  -^     '-'■i  .   Dj-gsent 

1  an  ord.  .al  de- 


ontains  no 
the  tea; 

nrerrr 

'/olvin  was 
tliat  there 

-ons,  or 

;i  the  C! 
iiui;  emplo} 
Colvin  an  • 

iKing  ship- 
die  driving  (. 

.iiargc 
-tiff  in 

c  for  ii 
Colvin  > 

ction  of 

for  V.-- 

'    IJ\.               (.V      . 

th,-- 


VICE-PRINCIPAL   DOCTRINE.  O3I 

when,  were  he  not  such  vice  principal,  the  company  would  not  be 
thus  liable,  as  was  ruled  on  the  appeal  in  the  former  action. 

This  question  has  been  determined  both  ways.  The  courts  of 
some  states  hold  that,  if  an  employer  put  one  servant  under  the  con- 
trol of  another,  such  servants  are  not  fellow-servants,  and  the  master 
is  liable  if  the  subordinate  servant  is  injured  by  the  negligence  of  the 
other,  without  regard  to  the  nature  of  the  work  or  business  in  which 
they  were  engaged  at  the  time.  The  circuit  court  applied  this  rule 
when  it  overruled  the  demurrer  to  the  complaint. 

Other  courts  adhere  to  the  doctrine  that  whether  the  relation  of 
co-employe  or  fellow-servant  exists  between  different  employes  en- 
gaged in  the  same  business  for  the  same  employer  is  not  to  be  deter- 
mined by  the  rank  or  grade  of  either  servant,  but  by  the  character  of 
the  act  being  performed  by  them.  "If  it  is  an  act  that  the  law  im- 
plies a  contract  duty  on  the  part  of  the  employer  to  perform,  then 
the  offending  employe  is  not  a  servant,  but  an  agent,  but  as  to  all 
other  acts  they  are  fellow-servants."  7  Am.  &  Eng.  Ency.  of  Law 
834,  and  cases  cited. 

This  court  is  unmistakably  committed  to  the  latter  rule,  to  wit, 
that  the  liability  of  the  master  depends  upon  the  nature  of  the  act  in 
the  performance  of  which  the  injury  is  inflicted,  without  regard  to 
the  rank  of  the  offending  employe.  In  Brabbits  v.  C.  &  N.  W.  R. 
Co.,  38  Wis.  289,  the  company  was  held  liable  to  an  employe  for 
injuries  caused  by  the  use  of  an  engine  out  of  repair  which  it  was  the 
duty  of  the  foreman  of  defendant's  shops  to  repair,  but  which  he 
negligently  omitted  to  do.  It  was  not  determined  that  the  foreman 
was  a  vice  principal,  but  the  company  was  held  liable  on  the  express 
ground  that  it  owed  a  duty  to  plaintiff  to  repair  the  engine  within  a 
reasonable  time  after  it  became  defective,  and  hence  that  it  was 
liable  for  the  negligent  failure  of  any  of  its  servants  or  employes 
to  whom  that  duty  was  intrusted  to  repair  the  defective  engine, 
without  regard  to  the  rank  or  subordination  of  the  negligent  servant. 

In  Rowland  v.  M.,  L.  S.  &  W.  R.  Co..  54  Wis.  226,  the  plaintiff 
was  employed  as  a  shoveler  to  aid  in  removing  snow  from  the  rail- 
way track.  He  was  in  a  car  drawn  by  an  engine,  and  the  work  of 
clearing  the  track  was  in  charge  of  a  conductor,  to  whose  orders  the 
plaintiff  was  subject.  At  a  certain  point  the  conductor  directed 
plaintiff  to  remain  in  the  car  and,  as  it  was  alleged,  negligently  at- 
tempted to  run  the  engine  and  car  through  a  snowdrift  on  the  track. 
In  so  doing  the  car  was  overturned  and  the  plaintiff  injured.  It  w^as 
held  that  the  conductor  and  plaintiff'  were  fellow-servants  in  the 
common  business  of  clearing  the  track,  and  that  the  railway  company 
was  not  liable  for  the  negligence  of  the  conductor. 

The  above  cases  fairly  illustrate  the  doctrine  of  this  court  on  the 
subject  under  consideration.  In  the  Brabbits  case  the  company  was 
held,  on  the  principle  that  it  is  liable  to  one  of  its  servants  for  the 
negligence  of  another  in  respect  to  any  duty  intrusted  to  the  latter 


6^2  DUTIES    OF    PRINCIPAL    TO   AGENT. 

to  perform,  which  at  the  same  time  is  a  duty  the  company  owes  to 
the  injured  servant,  no  matter  how  humble  or  subordinate  the  em- 
ployment of  the  offending  servant  may  be.  The  real  effect  of  the 
rule  is  to  make  any  servant  of  the  company  who  is  charged  with  the 
performance  of  any  duty  which  the  company  owes  its  servants  a  vice 
principal  in  respect  to  such  duty.  The  case  of  Schultz  v.  C,  M.  & 
St.  P.  R.  Co.,  48  Wis.  375,  affords  an  apt  illustration  of  an  applica- 
tion of  this  rule. 

In  the  Rowland  case  the  company  was  held  not  liable  for  the  neg- 
ligence of  the  conductor,  who  for  many  purposes  is  held  to  stand  for 
the  company,  and  who  had  control  of  the  plaintiff,  because  the  al- 
leged negligent  act  did  not  pertain  to  a  matter  in  respect  to  which 
the  company  owed  a  direct  duty  to  plaintiff.  For  that  reason  the 
conductor  and  his  subordinate  employe — the  plaintiff — were  held  to 
be  fellow-servants  engaged  in  a  common  undertaking,  and  the  com- 
pany was  held  not  liable  for  the  negligence  of  the  former  which  re- 
sulted in  injury  to  the  latter.  The  same  doctrine  is  adhered  to  in 
Toner  v.  C,  M.  &  St.  P.  R.  Co.,  69  Wis.  188,  and  in  numerous  other 
cases  in  this  court,  some  of  which  are  cited  in  the  opinion  in  the 
Toner  case.  Whatever  may  be  thought  of  the  reason  or  justice  of 
the  rule,  it  is  now  too  deeply  imbedded  in  our  jurisprudence  to  be 
repudiated  or  shaken  by  judicial  determination.  If  any  change  of 
the  rule  is  desirable,  it  should  be  made  by  the  legislature — not  by  the 
courts. 

The  question  here  under  consideration  was  not  reached  on  the 
appeal  in  the  first  action  for  the  alleged  injury,  and  there  is  no  sig- 
nificance in  the  circumstance  that  the  court  there  gave  no  opinion 
upon  it,  but  expressly  declined  to  do  so.  In  this  case  there  is  no 
direct  averment  in  the  complaint  that  the  express  company  was  neg- 
ligent, or  that  Colvin  was  incompetent  to  drive  the  team,  or  that  the 
company  failed  in  any  duty  it  owed  plaintiff.  It  simply  alleges 
facts  which  show  that  Colvin  chose  to  drive  the  team,  as  he  had  un- 
doubted authority  to  do,  instead  of  allowing  plaintiff  or  some  other 
employe  of  the  company  to  drive  it,  and  that  he  drove  it  so  negli- 
gently that  the  plaintiff  was  thereby  injured.  Under  the  above  rule, 
these  averments  show  that  Colvin  and  plaintiff  were  fellow-servants 
in  the  particular  business  in  which  they  were  engaged,  and  hence 
that  the  company  is  not  liable  for  the  negligence  of  Colvin. 

It  results  from  the  foregoing  views  that  the  complaint  fails  to  state 
a  cause  of  action  against  the  express  company,  and  that  the  de- 
murrer thereto  should  have  been  sustained. 

By  the  Court. — The  order  overruling  the  demurrer  to  the  com- 
plaint is  reversed,  and  the  circuit  court  directed  to  sustain  such  de- 
murrer. 


i86o.     Supr>:me 


Case. — Th.:  i.r^cr.-i, 
fallows  : 

In  a  plea.  mts  hen 

the  tenth  dir 
'  f  a  certain 
Concord,  in  r 
ro  a  place    ■  • 


^aia,  operate^ 
and  along  s.'i 
nnd  had  the 


oi  tne  Vi 


M^    .lofrn 


'ent.  or 


r 


rheir  said  r^ 


:  .e  injured  servan 

1  er  how  hui; 

P- 

P'        . 

St.  P.  R.  Co.,  4b  V 
tion  of  this  rule 
In  the  How), 
ligence  of  the  '. 

m  ai 
was 

the  company, 
leged  • 

the  co- 

.ill  t.0  .■ 

V  to  plai 

co 

■';ye— 

I'- 

■.:.y-i:.:^:; 

m:  ■ 

UpOii 

direct  ; 
ligent,  or  ti 

companv    " , 
facts  Avhic' 
doubted  auui<n il_j 
employe  of  the  cot: 


-tne 


■   lie    ScUllC    uc 

(X)  Wis.  1 88 


Hi  our  i 
iination. 


'^  the  em- 


a  vice 


T  the  no 

•  >nd  for 

he  al- 

which 

jri  the 

-Id  to 

com- 

ch  re- 

•  to  in 

>  other 

in  the 

.ce  of 

to  be 

ige  of 


i  be  made  by  the  legislature — ^not  by  the 

consideration  was  not  reached  on  the 

r^"C:  alleged  '  '  there  is  no  sig- 

at  the  c  I'e  no  ooinion 


;eteiit  tc 


th 

It  results  from  ti:r 
a  '.anse  of  act''^''> 
:r:v\\ :  '■■'■  thereto 

By  the  CoUk'.  —  ;  r,-  nnwy  . 
plaint  is  reversed,  and  the  circui 
m  • 


'is  to  sts 

rut:  coi- 
1  such  d' 


PREMISES APPLIANCES ASSUMPTION    OF    RISK.  633 


(C  )    DUTY   OF  THE   EMPLOYER   TO    PROVIDE    SAFE  PREMISES   AND   SUIT- 
ABLE APPLIANCES.    ALSO  ASSUMPTION  OF  RISK  BY  EMPLOYE. 

FIFIELD  V.  NORTHERN  RAILROAD. 

i860.     Supreme  Judicial  Court  of  New  Hampshire. 

42  N.  H.  225. 

Case. — The  defendants  demurred  to  the  declaration,  which  was  as 
follows : 

In  a  plea  of  the  case  for  that  the  defendants  heretofore,  to  wit,  on 
the  tenth  day  of  February,  1859,  owned,  occupied,  and  possessed 
of  a  certain  railroad  called  the  Northern  Railroad,  running-  from 
Concord,  in  the  county  of  Merrimack  and  state  of  New  Hampshire, 
to  a  place  called  West  Lebanon,  in  the  town  of  Lebanon,  in  the 
county  of  Grafton,  which  railroad  runs  through  the  town  of  Canaan, 
in  said  county  of  Grafton,  and  the  defendants,  at  the  time  afore- 
said, operated  said  railroad  by  running  their  cars  and  engines  on 
and  along  said  railroad  from  said  Concord  to  said  West  Lebanon, 
and  had  the  management,  control  and  direction  thereof,  and  the 
engines  and  cars  on  the  same,  and  the  plaintiff  was  at  said  time  in 
the  employ  of  the  defendants  as  a  brakeman  upon  a  freight  train 
of  said  road  of  the  defendants,  and  employed  by  the  defendants  for 
that  purpose ;  by  reason  whereof  it  became  and  was  the  business  and 
duty  of  the  plaintiff  to  attend  to  the  brakes  upon  the  train  or  trains 
of  the  defendants  upon  which  he  was,  and  it  was  also  his  duty  to 
assist  in  setting  out  cars  from  said  train  or  trains,  and  in  taking  into 
said  train  or  trains  such  cars  as  it  was  necessar\'  to  take  in,  or  set 
off,  by  shackling  or  hitching,  unshackling-  or  unhitching  the  cars,  as 
might  be  necessary,  or  as  he  might  be  ordered  to  do  by  the  super- 
intendent, or  other  officer  of  said  railroad ;  and  it  was  the  duty  of  the 
defendants  to  keep  said  road  in  good  and  sufficient  repair,  and  the 
track  so  cleared  from  snow,  ice,  and  other  impediments,  and  the 
engines  and  cars  used  and  drawn  thereon  in  good  and  sufficient 
order,  so  that  their  servants  and  men  employed  in  making  up,  run- 
ning, managing  and  controlling  their  said  trains  upon  said  road, 
could,  with  ordinary  care  and  prudence,  do  and  perform  their  said 
duties  in,  upon,  and  about  said  engines  and  cars,  and  about  the  said 
railroad  with  safety ;  yet  the  defendants,  not  regarding  their  said 
duty  in  these  respects,  negligently  and  carelessly  allowed  and  suf- 
fered their  said  road,  to  wit,  at  said  Canaan,  on  the  day  and  year 
aforesaid,  to  become  filled  and  blocked  up  with  snow  and  ice  on  the 
side  and  sides  of  said  road  and  tracks,  aiid  then  and  there  negligently 
and  carelessly  suffered  a  certain  freight  car  to  be  and  remain  out  of 
repair,  by  reason  of  which  negligence  and  carelessness  of  the  de- 
fendants in  permitting  the  said  road  to  become  so  filled  and  blocked 


634  DUTIES   OF    PRINCIPAL   TO   AGENT. 

up  with  snow  and  ice  as  aforesaid,  and  so  carelessly  and  negligently 
permitting  the  said  car  to  be  so  out  of  order,  as  aforesaid,  the  plain- 
tiff, while  in  the  performance  of  his  duty  as  by  his  said  employment 
bv  and  with  the  defendants  as  brakeman  on  said  train  or  trains,  in 
shackling  and  unshackling  said  cars  at  said  Canaan,  heretofore,  to 
wit,  on  the  said  tenth  day  of  February,  and  while  in  the  exercise  of 
great  care  and  prudence  on  his  part,  was  unavoidably  caught  be- 
tween the  said  cars,  and  run  against  and  upon  by  the  said  cars, 
whereby  the  plaintiff's  arm  was  broken,  and  he  was  so  otherwise 
cut,  bruised  and  wounded  that  he  became  and  was  very  weak,  sick, 
sore  and  disordered,  and  so  remained  and  continued  for  a  long  space 
of  time,  to  wit,  from  thence  hitherto,  and  still  so  continues,  during 
all  which  time  the  said  plaintiff  suffered  great  pain,  and  has  been 
wholly  prevented  and  hindered  from  performing  any  business  what- 
ever during  that  time,  and  deprived  thereby  from  earning  a  support 
for  himself  and  family,  and  so  now  continues ;  and  also  by  means  of 
the  premises  the  plaintiff  was  forced  to  pay,  lay  out  and  expend,  and 
has  necessarily  paid,  laid  out  and  expended  divers  large  sums  of 
money,  in  all  amounting  to  a  large  sum  of  money,  to  wit,  the  sum  of 
five  hundred  dollars,  in  and  about  endeavoring  to  be  healed  and 
cured  of  his  wounds,  hurts  and  bruises  occasioned  as  aforesaid ;  to 
the  damage  of  said  plaintiff,  as  he  says,  the  sum  of  five  thousand 
dollars. 

Doe,  J. — The  gist  of  the  declaration  is,  that  by  reason  of  the  de- 
fendant corporation  negligently  permitting  its  road  to  be  blocked 
with  snow  and  ice  and  a  car  to  be  out  of  repair,  the  plaintiff,  a  serv- 
ant of  the  defendants,  employed  as  a  brakeman,  was  injured. 

If  the  railroad  were  owned  by  one  individual,  and  he  should  per- 
sonally assume  the  duty  of  examining  and  repairing  the  road  and 
the  cars,  and  through  his  negligence  in  not  repairing,  or  in  imper- 
fectly repairing  them,  a  brakeman  employed  by  him  should  be  in- 
jured, the  employer  would  be  liable.  And  if  the  employer  did  not 
attend  to  the  repairs  himself,  and  if  ordinary  care  and  prudence  re- 
quired that  one  or  more  persons  should  be  constantly  engaged  in 
making  repairs,  and  the  employer,  through  gross  negligence,  did 
not  employ  any,  or  a  sufficient  number  of  repair-men,  or  negligently 
employed  unskilful  ones,  and  a  brakeman,  not  knowing  this  fact, 
and  being  in  no  fault  for  not  knowing  it,  and  being  chargeable  with 
no  negligence  or  fault  whatever,  were  injured,  solely  in  consequence 
of  such  negligence  of  his  employer,  the  employer  would  be  liable. 
In  such  case,  the  master  would  be  held  responsible  for  the  exercise 
of  ordinary  care  and  prudence.  If  he  assumed  to  do  any  part  of  the 
work  himself,  he  should  exercise  ordinary  care  and  skill  in  doing  it ; 
if  he  did  nothing  personally,  except  hiring  all  the  servants,  he  should 
exercise  ordinary  care  in  employing  a  sufficient  number  of  competent 
servants.  And  a  declaration  alleging  that  he  carelessly  and  negli- 
gently permitted  the  track  and  a  car  to  become  and  remain  defective 


PREMI- 

wo;  tained  I. 

and  re  I 
f  the  bu 
lent  anc 
;;,   and    : 
n,  or  an  . 
k  and  a  car  becar 
:ts  would  exist  1. 
;g;ence  consisted 
himself,  or  ^'. 
men   or  coti 


ihe  same  gen 
the  road  and  emj 
The  agents  of  a 
must  have  a  raasi-:. 
n-a^ter  and  servant  r 
or  a  being  ^ 
case,  ordinal 
should  have  been  ei; 
•-iiow  and  ice  fr.;-., 
not  to  emplr 
in•=1-fiFicien^  -■; 


d  that 
<l  to  re; 


■  V  a  nur 


:i.^fu:c  OL  uie  aci 
i'-vrkholders,  f'  •■ 
not,  probablv 

It  is  ■ 
Hich  th; 


Tire  rule  i^  verv 
:"d  by  the 
imon  eni) 
maintain 


nrriES  ' 

'    PRT vcr.' 

\;;                     w  and  ice  .'i 

;.;'cniiy 

|v                  the  said  car  - 

Tilain- 

a  the  pe^  ' 

lllb  dut; 

J!  the  dc 

lakeniar 

-n:.ickiing  and  unsl 

cars  at 

re,  to 

.it,  on  the  said  tei' 

■.rTi:n'v\ 

.  -.  _ise  of 

preat  care  and  pru 

aught  be- 

tween  the  said  ■■■• 

■  I     t;  1  n  1     I.',  ".'I !     1  •  1 

.i!i; 

said  cars, 

whereby  the  p 

>ken,  and  he  was 

so 

otherwise 

cut,  bruised  ar; 

came  and  w 

- .  sick. 

sore  and  discv 

i  and  contini!' 

J,  space 

of  time,  to 

>.  and  still  S' 

.•.:s,  during 

all  whidi 

rered  great  ■ 

!  has  been 

wholly 

rom  performing  . 

iiess  whpii 

ever  6< 

ved  thereby  fror 

a  suppoiv 

ior  hn 

ow  continues;  ar 

means  of 

:ced  to  pr      '- 

-pend,  and 

■ud  cxp< 

•  sums  of 

um  of 

_d  and 

'  bruises  occasioned  as 

aiuresaid ;  to 

^ir-  Kavs,  the  sum    »"' 

n\  ( 

^   ilii'»u>..-mfi 

the  cars,  a 
fectly  repj- 
jured,  the 

attend  to  tne  r 


cd  unskiiiu; 
....  ing  in  no  fai. 
no  negligence  or  fa 
of  such  negligence 
In  such  case,  the  i 
o"  ■  •  care  ai- 
w  ""If.  he  s' 


■  •.,  that  bv  1'  i^Dii  1,1  ..lie  ue- 
ng  its  road  to  be  blocked 
V  out  of  repair,  the  plaintiff,  a  serv- 
es a  br?kem?'t>.  was  injured. 

he  should  pcr- 


ot 


, 

:n 

e,  did 
gently 
■  fact, 

■e'lM      i)C 

lUlUiC-. 

)r  the  exercise 
•ny  part  of  the 
ill  in  doing  it ; 

■      ants,  he 

'<  r  of  coni 
relessly  and 

!  ro^^iiii  <"''' 

PREMISES — APPLIANCES — ASSUMPTION    OF   RISK.  635 

would  be  sustained  by  evidence  that  they  became  and  remained  de- 
fective through  his  personal  carelessness  and  negligence  in  not  dis- 
covering and  remedying  the  defects,  if  he  took  upon  himself  that 
branch  of  the  business ;  or  by  evidence  that  he  assumed  the  general 
management  and  superintendence  of  the  road,  and  employed  all  the 
workmen,  and  that  from  gross  negligence  he  employed  no  re- 
pair-men, or  an  insufficient  number,  or  unskilful  ones,  whereby  the 
track  and  a  car  became  and  remained  defective.  In  either  case,  the 
defects  would  exist  by  reason  of  his  own  negligence.  Whether  his 
negligence  consisted  in  not  discovering  or  in  not  removing  the  de- 
fects himself,  or  in  not  employing  any  or  a  sufficient  number  of  re- 
pair-men, or  competent  ones,  the  action  could  be  founded  upon  his 
personal  negligence,  and  the  allegation  that  the  defect  existed  by 
reason  of  his  negligence  would  be  sufficient. 

The  same  general  rules  must  be  applicable,  whether  the  owner  of 
the  road  and  employer  of  the  workmen  is  a  person  or  a  corporation. 
The  agents  of  a  corporation  must  have  a  principal,  and  its  servants 
must  have  a  master;  and  the  mutual  duties  and  liabilities  between 
master  and  servant  must  be  the  same,  whether  the  master  is  a  man, 
or  a  being  existing  only  in  contemplation  of  law.  In  the  present 
case,  ordinary  care  and  prudence  may  have  required  that  workmen 
should  have  been  employed  to  repair  the  cars,  and  to  remove  the 
snow  and  ice  from  the  track,  and  the  stockholders  may  have  voted 
not  to  employ  such  workmen,  or  to  employ  a  number  known  to  be 
insufficient,  or  those  known  to  be  incompetent,  and  the  plaintiff,  in 
the  exercise  of  reasonable  care,  and  without  any  knowledge,  or  means 
of  knowledge  of  defects  in  the  car  or  track,  or  of  the  insufficiency 
or  incompetency  of  the  repair-men,  may  have  been  injured  in  conse- 
quence of  the  action  of  the  stockholders.  In  such  case,  although  the 
stockholders,  for  many  purposes,  are  not  the  corporation,  it  would 
not,  probably,  be  denied  that  the  plaintiff,  being  injured  by  the  gross 
negligence  of  the  controlling  power  of  the  corporation,  could  main- 
tain this  action.    The  declaration  must,  therefore,  be  held  suffixient. 

It  is  understood  that  the  powers  and  duties  of  the  directors  are 
such  that,  in  the  general  management  of  the  business  of  the  cor- 
poration, their  negligence  may  be  called  the  negligence  of  the  cor- 
poration, in  contradistinction  to  the  negligence  of  its  servants. 
Whether  any  other  officers  occupy  a  similar  position  in  relation  to 
the  corporation  and  its  servants,  cannot  now  be  decided.  King  v. 
B.  &  W.  Railroad,  9  Cush.  42  ;  C,  C.  &  Cin.  Railroad  v.  Kearv,  3 
Ohio  (St.)  201. 

The  rule  is  very  generally  established  that  a  servant  who  is  in- 
jured by  the  negligence  of  a  fellow-servant  in  the  course  of  their 
common  employment,  without  any  fault  on  the  part  of  the  master, 
can  maintain  no  action  against  the  master  for  such  injury.  The  rule 
appears  to  be  founded  on  the  implied  contract  that  he  who  engages 
in  the  employment  of  another  for  the  performance  of  specified  duties 


636  DUTIES    OF    PRINCIPAL   TO   AGENT. 

and  services,  for  compensation,  takes  upon  himself  the  natural  and 
ordinary  risks  and  perils  incident  to  the  performance  of  such  serv- 
ices, the  compensation,  in  legal  presumption,  being  adjusted  ac- 
cordingly ;  and  it  is  said  that  perils  arising  from  the  negligence  of 
fellow  servants  are  incident  to  the  service.  Farwell  v.  B.  &  ,W- 
Railroad,  4  Met.  49. 

The  contract  between  master  and  servant,  for  many  if  not  for  all 
purposes  is,  that  each  will  exercise  ordinary  and  reasonable  care. 
If  an  individual  is  the  sole  owner  of  a  railroad,  and  also  general 
manager,  purchaser  and  superintendent,  he  is  presumed  to  engage 
with  his  workmen  that  he  will  use  ordinary  care  in  furnishing  them 
with  engines,  cars  and  road,  in  a  condition  reasonably  safe,  and  if, 
from  any  defect  in  the  engines,  cars  or  road,  which  ordinary  care 
on  the  part  of  the  owner  personally  would  have  prevented  or  cured, 
a  brakeman,  in  the  exercise  of  ordinary  care,  having  no  knowledge 
or  means  of  knowledge  of  the  defect,  is  injured,  the  owner  is  liable. 
But  it  would  be  unreasonable  to  imply  a  contract  of  warranty,  on 
the  part  of  the  owner,  that  the  engines,  cars  and  road  should  be 
sufficient  and  free  from  defect.  And  it  is  claimed  that  it  would  be 
equally  unreasonable  to  imply  a  contract  of  warranty  on  the  part 
of  the  owner  with  each  of  the  workmen  that  all  the  other  workmen 
should^  be  competent  and  free  and  from  fault,  and  that  the  only 
reasonable  and  consistent  contract  that  can  be  implied  on  this  point 
is  that  the  owner  will  exercise  ordinar}^  care  in  employing  compe- 
tent workmen.  If  such  owner  hires  an  engine  and  engineer,  and  a. 
brakeman  is  injured  at  one  time  by  a  defect  in  the  engine,  and  at 
another  time  by  the  fault  of  the  engineer,  it  might  be  difficult  to 
imply  a  contract  on  the  part  of  the  owner  to  use  ordinary  care  in 
hiring  a  suitable  engine,  and  a  contract  of  warranty  that  he  would 
hire  a  suitable  engineer,  and  that  the  engineer  should  not  only  be 
reasonably  competent,  but  that  he  should  never  be  negligent. 

It  has  been  held  substantially  that  whether  a  workman  is  injured 
through  inadequacy  of  machinery,  or  other  aids  or  means  furnished 
by  his  master,  or  through  incompetency  or  carelessness  of  fellow- 
workmen,  his  right  of  action  against  his  employer  stands  upon  the 
same  ground ;  that  between  master  and  servant  the  implied  con- 
tract is  that  each  will  use  ordinary  care  in  all  things  pertaining  to 
the  servant's  business ;  that  if  a  master  exercises  ordinary  care  in 
hiring  and  retaining  in  his  employment  a  competent  engineer,  and 
in  buying  and  continuing  to  use  a  suitable  engine,  the  master  should 
no  more  be  liable  to  a  brakeman,  if  the  engineer  should  prove  to 
be  incompetent,  or  being  generally  competent  should  on  some  oc- 
casion be  careless,  than  if  the  engine,  apparently  sufficient,  should 
explode ;  that  the  master  has  performed  his  contract  with  the  brake- 
man,  so  far  as  it  relates  tO'  the  engine  and  engineer,  when  he  has 
done  all  that  ordinary  care  requires  him  to  do  to  secure  an  engine 
and  engineer  reasonably  suitable  for  the  business.    If  the  owner  of 


I  care  n^ 

ther  pa- 

^n  them 

their 

fixed  by 

■     cl      c. 

.  -  f- 1 

al  and 

.ister  is 

ensrai 

:ed 

•is  ini- 

a  raii  -  serv- 

ants   ^'  ■'     •;i^T:- 

self,  1 

far  ab  .--■■.-..  r..^  ,l;  -.v,,.^.  ■_,. 

man,  who  would  charjre  tl ...  M 

:  '  'ish  his  claim 
\  public  poi. 
standing 
;.   law  on  , 
roads,  or  extensive  em 
ants,  in  this  case,  and    . 
harvest,  or  two  carpenters 
':re.  to  be  determined  by  tli 
.ister  and   serv:)nr,  and    >- 
se  between  c 
undation  in    ■ 
tter.  Bailees 
bailment,  at 
act  of  bailment : 
rvants,  must  '■  ■- 
ifoiTn  rule, 
material. 

If  the  employer's  contrP'  men  is,  that  he  will  use 

iinary  care  i:  rkraen,  but  that  he  will 

■  i;  guarantee  i  .  such  care.  .  u '.  i.    'he 

cjligence  of  one  .  :s  injure 

not  liable,  the  cui^ ...  ' v-  -^^  ^ 

':  act  of  the  master,  h 
jjut  if  a  third  person,  r 
and  servant,  is  injured 
V  the  master  ■ ' 
ct.     The  ser- 
■;  risks  incident  to  ti:. 
;reement,  and  is  not  j 
And  if  the  contract, 
'  '  risks  only  of  the  1 
■ks  of  other  business 
•m  maintaining- 
the  negligence  - 
in  other  business.    Hit 
cn!v  as  to  t'le  neglige). 
,  or  the 
■  .  r.  i:>..    •..    undertak:;  ,,        ■  n 

it.  by  their  negligence  ;n  tii.  ht 

ably   expect   to  be   - 
be  understood  to  be  . 
iitcre  being  an  express  agreemci. 


V  risk?  and 


n-e  to  tVx 


il  and 
serv- 


f'iiow  servant 
Ivailroad,  4  M^ 
The  contraci 
purposes  is,  tlir.i   ■  ; 
If  an  individual  is 
manager,  i 
witii  hi'-  " 
with  V 
iron:  ... 
on  the  part 


and  sen 


ar: 

hi: 

hire 

a  suit 
•pably  ^A-- 
!S  been 

.;.:h  i'l.- 

11. 


tract  IS  thate? 

the  servant's  Lu. .  ■ 

hiring-  and  retainin 

in  buying  and  conti ' 

no  more  be  liable 

b<'  ■ 

€:■ 

expiude  ;  ciiat  the  mabter  has  p«: 

man.  so  f,ir  as  it  i'^^hitc-  to  th: 


^lent,  iu 

-  ;e 

a-dinan- 

in 

a  condii' 

aid  if. 

'.  ars  or 

V  care 

would  h 

cured, 

Tr-"'    '--It. 

.'.ledge 

liable. 

;tv,  on 

lid  be 

And  it 

idd  be 

1  contra 

e  part. 

\orkmen  thai 

worknii 

and  from  fa..>.. 

.  .   the  01 : 

.ct  that  can  be  i; 

.  this  po 

ordinary  care  in  c 

iij>!cying  comi 

a'res  an  eno'ine  anr 

engineer,  and 

;e  by  a   ^  ' 

engine,  and  at 

le  engiL' 

l:>e  difficult  to 

the  owner  1 

'!  ry  care  in 

contract  of  ^^  : 

he   would 

at  the  engineer 

turn  I  she: 

-'f  fello-; 

all  things  pertaining 

■ ,  -  \  /-.  .1 

•  *  ■' •''^ry  care 

ineer,  ai 

ter  shou. 

:  prove 

vuh  the 

.  when 

aire  aM  engi 

PREMISES — APPLIANCES ASSUMPTION    OF   RISK.  637 

a  railroad,  being  a  person  of  ordinary  care,  should  select  his  serv- 
ants with  reasonable  circumspection,  and  ride  upon  the  road  him- 
self, he  would  take  as  much  care  of  his  brakeman  as  of  himself,  so 
far  as  their  safety  depended  upon  the  other  servants ;  and  the  brake- 
man,  who  would  charge  the  owner  with  greater  obligations,  should 
establish  his  claim  upon  strong  and  satisfactory  grounds  of  reason, 
justice,  public  policy,  or  probability  as  to  the  actual  intention  and 
understanding  of  the  parties  in  making  the  contract  of  service. 

The  law  on  this  subject  is  not  peculiar  to  common  carriers,  rail- 
roads, or  extensive  enterprises.  The  responsibilities  of  the  defend- 
ants, in  this  case,  and  of  the  individual  who  hires  two  laborers  in 
harvest,  or  two  carpenters  to  erect  a  staging  and  shingle  his  house, 
are  to  be  determined  by  the  same  legal  tests.  This  case  is  between 
master  and  servant,  and  is  to  be  carefully  distinguished  from  a 
case  between  common  carrier  and  passenger,  as  there  may  be  no 
foundation  in  the  former  for  the  peculiar  principles  applicable  in  the 
latter.  Bailees  are  held  to  different  degrees  of  care  in  different  kinds 
of  bailment,  as  between  themselves  and  the  other  parties  to  the  con- 
tract of  bailment;  but  all  bailees,  as  between  themselves  and  their 
servants,  must  be  held  to  a  degree  of  care  fixed  by  a  general  and 
uniform  rule.  The  business  in  which  the  master  is  engaged  is  im- 
material. 

If  the  employer's  contract  with  his  workmen  is,  that  he  will  use 
ordinary  care  in  the  employment  of  other  workmen,  but  that  he  will 
not  guarantee  their  carefulness,  and  if  he  use  such  care,  and,  by  the 
negligence  of  one  of  them  another  of  them  is  injured,  the  employer 
is  not  liable,  the  common  rule  of  torts,  that  the  act  of  the  servant  is 
the  act  of  the  master,  being  suspended  as  to  that  case  by  the  contract. 
But  if  a  third  person,  not  a  party  to  the  contract  between  the  master 
and  servant,  is  injured  by  the  fault  of  the  servant,  his  right  of  action 
against  the  master  does  not  depend  upon,  and  is  not  limited  by  that 
contract.  The  servant  has  agreed  to  bear,  and  is  paid  for  bearing 
the  risks  incident  to  the  service ;  the  stranger  has  not  made  such  an 
agreement,  and  is  not  paid  for  bearing  such  risks. 

And  if  the  contract,  implied  on  the  part  of  the  servant,  is  to  bear 
the  risks  only  of  the  business  in  which  he  is  engaged,  and  not  the 
risks  of  other  business,  he  would  not  be  prevented  by  his  contract 
from  maintaining  an  action  against  the  master,  if  he  were  injured 
by  the  negligence  of  another  servant  of  the  same  master,  engaged 
in  other  business.  His  remedy  would  be  restricted  by  the  contract 
only  as  to  the  negligence  of  fellow-servants  engaged  in  the  same 
general  service,  or  those  employed  in  the  conduct  of  one  common 
enterprise  or  undertaking,  or  those  whose  employment  is  such 
that,  by  their  negligence  in  the  usual  line  of  their  duty,  he  might 
reasonably  expect  to  be  endangered,  or  those  whose  negligence 
might  be  understood  to  be  incident  to  his  service. 

There  being  an  express  agreement  between  the  master  and  serv- 


638  DUTIES    OF   PRINCIPAL   TO   AGENT. 

ant  to  do  certain  work  and  to  pay  for  that  work,  but  no  express 
agreement  as  to  the  care  to  be  exercised,  the  Habihties  to  be  assumed, 
or  the  risks  to  be  borne  by  either,  the  most  reasonable  contract  to 
be  implied  on  those  subjects.  The  servant  is  supposed  to  undertake 
that  he  will  exercise  reasonable  and  ordinary  care  in  doing  the 
work ;  and  he  is  liable,  if,  from  the  want  of  such  care  on  his  part, 
any  damage  result  to  the  person  or  property  of  the  master,  and  the 
damage  could  not  have  been  avoided  by  ordinary  care  on  the  part 
of  the  master.  And  if  the  servant  receives  an  injury  which  such 
care  on  his  part  would  have  avoided,  he  has  no  remedy  against  the 
master,  although  the  master  may  also  have  been  in  fault.  And  if 
the  servant  knows  that  a  certain  part  of  the  work  is  to  be  done  by 
other  servants,  and  the  master  is  required  to  use  ordinary  care  in 
employing  them,  the  obligations  of  master  and  servant,  as  between 
themselves,  in  everything  done  by  each  of  them  in  relation  to  the 
servant's  business,  would  be  reciprocal  and  equal. 

A  contract  is  implied,  on  the  part  of  the  servant,  that  he  assumes 
the  apparent  risks,  as  well  as  those  generally  incident  and  ordinarily 
and  reasonably  to  be  expected  in  the  service.  Assop  v.  Yates,  2  H. 
&  N.  768.  He  engages  to  bear  the  special  perils  which  he  knows 
actually  to  exist  in  his  particular  service,  as  well  as  the  dangers 
generally  appertaining  to  such  business.  If  an  engineer  undertakes 
to  run  an  engine  which  he  knows  to  be  defective  and  peculiarly 
liable  to  burst,  he  has  no  remedy  for  an  explosion  to  which  he 
voluntarily  exposes  himself.  If  he  would  have  the  visible  or  known 
risks  borne  by  his  employer,  he  should  insist  upon  an  express  stipu- 
lation to  that  effect  in  the  contract ;  no  such  stipulation  can  reason- 
ably be  inferred.  And  if  the  servant  takes  the  risks  of  known  defects 
of  machinery,  it  would  seem  that  he  also  assumes,  to  some  extent, 
the  risks  of  known  incompetency  and  insufificiency  of  fellow-serv- 
ants. Skipp  V.  E.  C.  R.  Co.,  9  W.  H.  &  G.  223. 

In  the  present  state  of  this  case  we  are  not  called  upon  to  deter- 
mine what  rule,  as  to  the  liability  of  a  master  to  a  servant,  for  the 
negligence  of  a  fellow-servant,  is  the  law  of  this  state,  as  the  de- 
fendants may  be  made  liable  without  raising  that  question.  And 
whether  it  should  have  been  alleged  in  the  declaration  that  it  was 
the  duty  of  the  defendants  to  use  and  exercise  ordinary  and  rea- 
sonable care  and  diligence,  to  keep  the  said  road  and  car  in  rea- 
sonably good  and  sufficient  repair,  etc.,  and  that  the  defendants  did 
not  use  and  exercise  ordinary  and  reasonable  care  and  diligence  to 
keep,  etc.,  but  negligently  and  carelessly  allowed  and  suffered,  etc., 
is  a  question  not  argued  by  counsel  or  considered  by  the  court. 
Similar  allegations,  in  the  leading  case  of  Priestly  v.  Fowler,  3  M. 
&  W.  I,  were  held  insufficient  upon  grounds  which  are  not  satisfac- 
tory to  us.  It  was  there  said  that  if  the  owner  of  a  carriage  is  re- 
sponsible to  his  servant  for  the  sufficiency  of  the  carriage,  he  is  re- 
sponsible to  the  servant,  also,  for  the  negligence  of  his  coach-maker, 


!e  defendam 
n  the  carria,c 
c  occasion,  h 
be  in  a  ; 

■nrisi<1or' 


V  part  of  the  m 
v  implied  contra, 
procuring-  a  suit 
lintifF,  the  incor, 
•ion  in  that  casf 
ve  resulted    ."• 
rdinary  and     • 
ed  meanijig  !•• 
MIS  of  this  kinu. 
Demurrer  overrulf. 


PENNA.  &.\  MASON. 


i.'^Sq.     SrpREit! 


son  and   Sarah 
:ial  and  Railroad 
ir  respective  h" 


'n  the  respective 
facts  appea  r^   ' 
e  as  follows 


.  saiu :    "ii  is  no  :  ■ 
■'^TilTol  the  trnrl,   , 

■n  and  tal: 

•ight  to  k. 
■ii'.'  mill  conipauy  .' 


•.trrif'--^ 


'(]  on  those 


;  ,    lilt;    1' 

•  servat. 


tssumed, 


<  I   the  Tiiasi 
care  (iti  his 
master,  altii 
the  ser\ 
other  SI 
eni! 

tllCi 

scrvaiu 


nt  recer. 
led,  he 
also  h.'t 


■  i  maati  ' 
■y  each  i  • 
rocal  and  eq^ 
a-t  "of  tho  <r- 
e  gener 


bctvveci: 
n  to  the 


ic  know; 


tile  risl 
ants.  Si 

Iri  the  p; 
rninc  what 
negligence 
fendant' 
whet  he; , 


en  re 


Liu 

nr 


"J  l>e  di 

*  r   an    \  ■..,::    _ 

•r  known 

:!■        :^IlOUm       :■IC^iM       ui^V.JI     ..Ul      ^Ai.VeSS     Stlpl]- 

ntracl. ;  no  such  stipulation  can  reason 
!   '       ■ '       '  '        "  \nown  defects 
some  extent, 
and  ii.  r  fellow- serv 

H.  &G. 


."  we  ari 
>  of  a  n 
;    the  la  • 


-,  the  dr 
n.  An 
it  it  w? 

and  re;' 

-   in   re:' 


:-anilar  allegations.  J 

&  \"  ■    '   :  • 

lor 

nib  bcivaiit  for  the 
the  servant,  also,  foi 


.•red,  etc. 
liie  courr 
\'.ler,  3  li 
not  satisfai 
.irriasre  is  re 


PREMISES — APPLIANCES — ASSUMPTION    OF   RISK.  639 

or  his  harness-maker,  or  his  coachman,  and  that  the  mere  relation  of 
master  and  servant  never  can  imply  an  obligation  on  the  part  of  the 
master  to  take  more  care  of  the  servant  than  he  may  reasonably  be 
expected  to  do  of  himself.  But  the  declaration  in  that  case  was,  not 
that  the  defendant  insured  the  plaintiff  against  injury  from  all  de- 
fects in  the  carriage,  but  that  it  became  the  duty  of  the  defendant, 
on  that  occasion,  to  use  due  and  proper  care  that  the  said  carriage 
should  be  in  a  proper  state  of  repair.  The  declaration  seems  to  have 
been  considered  as  setting  forth  a  right  of  action  growing  out  of 
a  contract  of  warranty ;  whereas,  in  fact,  it  alleged  substantially  that 
from  the  relation  of  master  and  servant,  there  was  to  be  implied,  on 
the  part  of  the  master,  a  contract  to  use  due  and  proper  care.  If 
the  implied  contract  were  that  the  master  should  use  ordinary  care 
in  procuring  a  suitable  carriage  and  suitable  fellow-servants  for  the 
plaintiff,  the  inconvenient  and  absurd  consequences  which  the  de- 
cision in  that  case  seem  to  have  been  intended  to  avoid,  would  not 
have  resulted  from  holding  the  declaration  sufficient.  The  terms 
"ordinary  and  reasonable  care  and  diligence,"  have  an  exactly  de- 
fined meaning  in  law,  and  perhaps  they  should  be  used  in  declara- 
tions of  this  kind. 
Demurrer  overruled.^ 


I 


PENNA.  &  N.  Y.  CANAL  AND  R.  R.  CO  v.  MASON. 

SAME  V.  LESLIE. 

1885.     Supreme  Court  of  Pennsylvania.     109  Pa.  St.  296. 

These  were  two  actions  of  trespass  on  the  case,  brought  by  Anna 
Mason  and  Sarah  Leslie  against  the  Pennsylvania  &  New  York 
Canal  and  Railroad  Company  to  recover  damages  for  the  deaths  of 
their  respective  husbands,  Frank  Mason  and  John  Leslie,  caused 
by  the  alleged  negligence  of  the  defendant  company.  The  defend- 
ant pleaded  not  guilty. 

On  the  respective  trials  in  the  court  below,  before  Morrow,  P.  J., 
the  facts  appeared  to  be  substantially  the  same  in  both  cases  and 
were  as  follows : 

^  See  Pressed  Steel  Car  Co.  v.  Hcrath,  no  III.  App.  596. 

If  servants  in  the  scope  of  their  employment  are  reqnired  to  go  upon  prem- 
ises not  owned  by  the  master,  the  latter  must  use  due  care  to  have  such  prem- 
ises safe.  Harding  v.  Railway  Transf.  Co.,  80  Minn.  504.  On  page  506,  Start, 
C.  J.,  said:  "It  is  no  answer  to  this  proposition  to  say  that  the  defendant  did 
not  control  the  track  and  steps ;  for.  if  its  right  to  use  them  in  the  work  of 
putting  in  and  taking  out  cars  for  the  mill  company  did  not  carry  with  it  the 
implied  right  to  keep  the  premises  safe  for  its  emploj'es,  it  was  bound  to  see 
that  the  mill  company  did  so,  or  decline  to  use  them." 


640  DUTIES    OF    PRINCIPAL   TO   AGENT, 

John  Leslie  and  Frank  Mason  were  employes  of  the  defendant 
company,  the  former  as  engineer,  and  the  latter  as  fireman,  of  the 
locomotive  "Wyoming."  On  April  26,  1880,  they  were  both  killed 
by  the  sudden  explosion  of  the  boiler  of  this  locomotive,  while  they 
were  operating  it  in  the  course  of  the  company's  business.  The 
locomotive  was  originally  built  by  the  Baldwin  Locomotive  Works 
in  i860,  and  had  been  in  the  use  of  the  defendant  since  that  time. 
In  1877  it  had  been  taken  to  the  defendant's  repair  shops  at  Sayre 
and  inspected,  repaired  and  tested.  Shortly  before  the  accident  it 
had  again  been  taken  to  these  shops  and  repaired  and  re-tested  by 
the  practical  machinists  who  were  in  the  employ  of  the  company. 
These  employes  were  under  the  direction  of  J.  N.  Weaver,  the  mas- 
ter machinist  of  the  company.  Weaver  testified  that  he  also  had 
the  engineers  and  firemen  employed  by  the  company  "under  my 
control ;  that  is,  so  far  as  the  care  of  the  engines  was  concerned. 
I  had  nothing  to  do  with  them  on  the  road.  I  directed  what  engines 
they  were  to  run  on."  He  further  testified  that  he  directed  what 
engines  should  go  out  and  assigned  the  engineers  to  run  them,  that 
he  had  exclusive  charge  of  such  assignments ;  that  he  arranged  all 
promotions  and  made  such  changes  as  he  thought  necessary.  The 
evidence  as  to  the  cause  of  the  accident  was  conflicting.  There  was 
some  testimony  tending  to  show  that  the  accident  was  due  to  the 
negligence  of  Leslie ;  other  witnesses  testified  that  the  boiler  was 
defective  in  its  original  construction  and  insufficiently  repaired,  and 
that  by  reason  of  these  defects  it  was  unfit  for  use.  The  court  sub- 
mitted these  questions  to  the  jury  for  their  determination. 

The  plaintifif  submitted  the  following  point:  i.  That  the  de- 
fendant company  was  bound  to  keep  and  maintain  the  engine  "Wyo- 
ming" in  such  condition  as  to  be  reasonably  and  adequately  safe  for 
Mason  (Leslie),  the  deceased,  to  be  upon  and  use,  and  if  the  jury 
believe  the  death  of  Mason  (Leslie),  was  caused  by  the  negligence 
of  the  defendant  in  failing  to  keep  and  maintain  the  said  engine  in 
such  reasonably  and  adequately  safe  condition,  the  plaintififs  are  en- 
titled to  recover. 

Answer :   This  is  affirmed. 

The  defendant  submitted  the  following  point  in  the  case  brought 
by  Anna  Mason : 

3.  That  the  workmen  in  the  shop  at  Sayre  who  repaired  this 
boiler  were  fellow-servants  under  the  evidence  in  this  case  with 
Frank  Mason,  and  the  plaintiff  cannot  recover  if  the  explosion  was 
caused  by  their  negligence,  either  in  inspecting  or  repairing  the 
boiler. 

Answer :  That  is  denied.  It  is  true  that  Mr.  Weaver  testified 
that  he  had  under  him  Slowey,  who  made  these  repairs,  and  he  also 
had  under  him  the  engineer  and  fireman  of  the  gravel  train ;  and, 
as  Slowey  repaired  this  engine  by  his  direction,  it  is  claimed  on  the 
part  of  the  defendant  that  because  they  were  all  imder  Weaver, 


vie  was  not 


)f  the  -^ 
'in  v.ouid  bind  tb- 
Verdict  in  each 
on.    The  defer 
inter  alia,  the  .... 
in  qualifying  dete- 
*he  supreme  court 
Mr.  Justice  Ckn 

On  the  26ti-'. 
of  a  locomotiA 

the  engineer, 

was  so  injured  ti.af  he 
actions  wer^  ' 
ing  to  th( ' 
actions  are  in  '„.l  ■ 
together,  and  for  . 
opinion. 

Certain  anesl'to: 
'led  by  th-: 
ihe  work  ^ 
•  lid  not  b} 
(lent.    There   u  cr^ 
«:ourt  below,  aboui 
as  that  the  burthei 
on  the  part  of  th<,' 
recovery  if  the  ac 
servant;  that  this  ■. 
tools  with  which  i 
required  to  do.  ani 
careful  mechanics 
the  boiler.   In 
jury,  and  the} 
have  some  assignuK-n'- 
rulings  of  that  court. 

We  are  told  that  it 
the  plaintiffs'  first  poi 
quately"  as  follow^ : 
keep  and  r 
be  reason;, 

upon  and  u.^^..      LiuL 
sin-.ply  'sutTicjency ;  sul' 
41 — Rejnhaud  C\m 


-  Cuurt. 
h  in  thi 

rt  below  have  been  set- 
iciency  of  the  lx)ikr  foi 


'    .!  ■■  :■'. .  ihe  formr 
iocditiotive  "W'-' 
by  the  sudden  l 
were  ofierating   it 
locomotive  was  or- 
:  :   i860,  and  he 
^i\  1877  Jt  had 
.vd  inspected,   . 
had  again  beeii 
the  practical  n 
These  < 
ter  m;,> 
the  en 

COlilri;' 

I  ]. 


ne.Q-ugence 


M, 

bell 

of  the  defoi 
such  reasoi 
titled  to  re*' 
Answer:    il' 
The  defendar 
b\-  Anna  Masor, 
'  ;,     That  the 
bv'.'  V   were  fellow- 


ran. 


Mason,  and 
^d   bv  their  nt 


C'll 

boi' 

That  if 
that  he  iiad  under  1/ 
had  under  him  the  • 
as  Slowey  repaired  this 


I ' ;     ■!'.-:    1  iciuniutiu 

iS  fireman,  of  the 

ni  20,    : 

■     ■    killed 

Diler  of 

they 

of  thi 

The 

V  the  J^' 

■  '^rks 

lue  ujiis- 

nl?o  had 

J   by   th'. 

_   of  the  ( : 

'the  road.    . 

t  engines 

>her  testified 

ted  what 

led  the  engiv 

iliem,  that 

;  assigimient 

■ed  all 

I'-^C'^  as  he  ti^ 

.    The 

■nt  was 

here  wr. 

.t  the  ac 

:•■'    to   th'.- 

i.iesses  testified  i- 

i'  ■■!  and  insufficie... 

i   »        L    ^.        •  ,  .  I   '    xj        i.*.  J  .  ■ 

unfit  for  use. 

The  court  sub 

■  y  hjc  th':  ■  ■    '  ■  ■  -Tnination. 

followin;'                   T 

That  the  de 

ne"Wyo- 

;\-  safe'foi 

'■  the  jur; 

; ;  ,  i  ,      . .  ;-.i    C... 

■  ■v'-ljofMir- 

^p  and  maint 

brougl" 


the  sho- 
-r  the 


engine  b 

rb;;t     he-- 


lired 

th 

case 

wii 

sion 

w. 

'iring 

t! 

-•aver  te5tifi< 

^,  and  b- 

el  train 

iaimed'  •  ■ 

nder  '^A' 

I 


PREMISES — APPLIANCES — ASSUMPTION    OF    RISK.  64I 

therefore  they  were  fellow-servants,  and  that  if  the  engine  was  not 
reasonably,  carefully  and  well  repaired,  the  plaintiff  cannot  recover, 
because  Slowey  and  Mason  were  fellow-servants.  I  do  not  think  it 
follows,  necessarily,  because  Weaver  swears  that  he  is  the  master 
mechanic  of  the  shop,  and  I  think  that  whatever  was  done  under 
him  would  bind  the  defendant. 

Verdict  in  each  case  for  the  plaintiff  therein,  and  judgment  there- 
on. The  defendant  took  these  writs  of  error,  assigning  for  error, 
inter  alia,  the  action  of  the  court  in  affirming  plaintiffs'  point,  and 
in  qualifying  defendants'  point.  The  cases  were  argued  together  in 
the  supreme  court. 

Mr.  Justice  Gordon  delivered  the  opinion  of  the  court  May  25, 
1885. 

On  the  26th  day  of  April,  1880,  in  consequence  of  the  explosion 
of  a  locomotive  boiler  belonging  to  defendant  below,  John  Leslie, 
the  engineer,  was  killed  outright,  and  Frank  Mason,  the  fireman, 
was  so  injured  that  he  died  on  the  4th  of  May  following,  and  these 
actions  were  brought  by  their  widows  severally  for  damages  result- 
ing to  them  from  the  death  of  their  respective  husbands.  As  these 
actions  are  in  all  respects  similar,  they  were,  in  this  court,  argued 
together,  and  for  this  reason  we  will  dispose  of  both  in  the  same 
opinion. 

Certain  questions  which  arose  in  the  court  below  have  been  set- 
tled by  the  verdict :  among  others,  the  insufficiency  of  the  boiler  for 
the  work  it  was  intended  to  do,  and  the  fact  that  Leslie  and  Mason 
did  not  by  any  act  of  commission  or  omission  contribute  to  the  acci- 
dent. There  were  also  certain  legal  principles  recognized  by  the 
court  below,  about  which  there  was  and  can  be  no  serious  dispute, 
as  that  the  burthen  of  proof  was  on  the  plaintiff's  to  show  negligence 
on  the  part  of  the  defendant  or  its  agents ;  that  there  could  be  no 
recovery  if  the  accident  resulted  from  the  negligence  of  a  fellow- 
servant  ;  that  this  master  was  bound  to  furnish  safe  appliances  and 
tools  with  which  its  servants  might  accomplish  the  work  they  were 
required  to  do,  and  that  it  could  not  be  held  liable  if  competent  and 
careful  mechanics  were  employed  in  the  manufacture  and  repair  of 
the  boiler.  In  all  these  particulars  the  court  properly  instructed  the 
jury,  and  they  would  seem  to  cover  the  entire  case.  Nevertheless  we 
have  some  assignments  of  error  founded  on  exceptions  taken  to  the 
rulings  of  that  court. 

We  are  told  that  it  was  a  mistake  for  the  learned  judge  to  affirm 
the  plaintiffs'  first  point  because  of  its  containing  the  word  "ade- 
quately" as  follows :  "That  the  defendant  company  was  bound  to 
keep  and  maintain  the  engine  'Wyoming'  in  such  a  condition  as  to 
be  reasonably  and  adequately  safe  for  Mason,  the  deceased,  to  be 
upon  and  use."  But  as,  according  to  Webster,  'adequacy'  means 
simply  'sufficiency ;  sufficiency  for  a  particular  purpose,'  we  cannot 
41 — Reinhard  Ca-Ses. 


642  DUTIES    OF    PRINCIPAL    TO    AGENT. 

see  wherein  this  instruction  there  was  error.  The  boiler  ought  to 
have  been  sufficient  for  the  purpose  intended,  and  if  it  was  not  the 
company  was  responsible  for  the  absence  of  such  sufficiency ;  in- 
deed, in  this  alone  the  neglect,  if  any,  is  found.  But  the  court  below 
was  asked  by  the  counsel  for  the  defendant  to  say  that  the  workmen 
in  the  shop  at  Sayre,  who  repaired  the  boiler,  were,  under  the  evi- 
dence, fellow-servants  with  Leslie  and  Mason,  and  that  there  could 
be  no  recovery  for  the  negligence  of  such  co-employes.  To  this  the 
court  made  answer  as  follows :  "That  is  denied.  It  is  true  that  Mr. 
Weaver  testified  that  he  had  under  him  Slowe}^,  wlio  made  these 
repairs,  and  he  had  also  under  him  the  engineer  and  fireman  of  the 
gravel  train ;  and  as  Slowey  repaired  this  engine  by  his  direction,  it 
is  claimed  on  the  part  of  defendant  that  because  they  were  all  under 
Weaver,  therefore  they  were  fellow-servants,  and  that  if  the  engine 
was  not  reasonably,  carefully  and  well  repaired,  the  plaintiff  cannot 
recover,  because  Slowey  and  Mason  were  fellow-servants.  I  do  not 
think  it  follows  necessarily,  because  Weaver  swears  that  he  is  the 
master  mechanic  of  the  shop,  and  I  think  that  whatever  was  done 
under  him  would  bind  tlie  defendant."  We  think  this  answer  accords 
with  the  general  tenor  of  our  Pennsylvania  decisions,  and  unless  we 
propose  a  new  departure,  and  conclude  that  the  servant  is  to  have 
no  protection  whatever  from  the  carelessness  of  his  master,  we  must 
support  this  ruling  of  the  court  below.  How  a  boiler-maker  em- 
ployed in  a  machine  shop  can  be  regarded  as  a  co-employe  with  a 
fireman  and  engineer  engaged  in  running  a  locomotive  on  a  rail- 
road, in  the  sense  of  making  the  latter  responsible  for  the  negligence 
of  the  former,  is  something  that  is  difficult  to  understand.  The  only 
possible  connecting  link  between  them  was  the  superintendent, 
Weaver,  but  as  he  stood  in  the  place  of  the  defendant  company  in 
the  department  over  which  he  was  placed,  he  is  not  to  be  regarded 
as  an  employe  but  as  a  principal :  Mullan  v.  The  Steamship  Com- 
pany, 28  P.  F.  S.  25.  What  business  had  Leslie  and  Mason  in  or 
about  the  company's  machine  shop  any  more  than  they  had  about 
the  shop  of  any  other  firm  or  individual  ?  The  boiler  was  condemned 
as  unfit  for  use,  and  was  taken  from  these  men  for  the  purposes  of 
repair,  and  afterwards,  when  it  was  supposed  to  have  been  made  safe, 
it  was  returned  to  them  and  they  were  required  to  use  it  as  a  ma- 
chine fit  for  the  intended  purposes.  The  fact  was,  as  the  jury  found, 
it  was  not  safe,  and  not  fit  for  the  use  to  which  it  was  put ;  it  blev.^ 
up,  and  destroyed  the  lives  of  the  men  who  had  charge  of  it,  and 
the  question  now  is,  upon  whom  is  the  blame  to  rest  if  not  on  the 
master?  And  how  are  Leslie  and  Mason  to  be  charged  with  the 
negligence  of  men  with  whom  they  had  not  the  remotest  practical 
connection  ? 

Are  we  to  strain  a  point  against  these  laborers  and  raise  a  theo- 
retical connection  between  them  and  the  boilermaker  in  order  to 
shift  the  responsibility  from  the  master  to  the  servant?    Neither  on 


/ant  a  safe 


•>  and  machr 
at  industrial 
master  fron 
-hinery,  and 
nied  autlior, 
fhe  case 
case  ve;  • 

which  exei: 
ing  to  those  i. 

of  co-Iabore 

- 1_  1  _^ 

-J table  ir, 

^rt>  f'-o. 


ich  the  ma' 
-  .  .  to  be  rei-^^- 
er  equally  ci 
tool,  or  macir 
imes  danrrerniv^ 


in  the 


V<;  hetween  the  e?T>r 


e  think  it  may  be 


ought  to 

,s  not  the 
ency ;  in 
art  belov. 
workmen 


gravel                                                'red  thi  rection,  it 

is  claii;                                               "  *'''  *"  all  imder 

Weavr  le  engine 

w.'  'fif  cannot 

rt  I  do  nil! 

use  W  . 

■•^    T    thiK. 

We  th  uswcr  accoru- 


.ca  as  a  '  c  witn  :i 

I. or  liie  ' 

rstand. 

e    fiuperintenden: 

Ib.e  de 

as  an  c . 

pany,  ..  -  . 

ahoi.it  the  -t 


I 


r  m  or> 


■poiiiiUiii:v  iroin  u\l  ina-.: 


PREMISES — APPLIANCES — ASSUMPTION    OF    RISK.  643 

disposition  nor  authority  can  we  approve  a  proposition  so  clearly 
wrong-  as  this.  Says  Dr.  Wharton  in  his  work  on  Negligence,  section 
232 :  "A  master  is  bound  when  employing-  a  servant  to  provide  for 
the  servant  a  safe  working  place  and  machinery.  It  may  be  that  the 
person  by  whom  buildings  and  machinery  are  constructed,  are  serv- 
ants of  the  common  master,  but  this  does  not  relieve  him  from  his 
obligation  to  make  buildings  and  machinery  adequate  for  working 
use.  Were  it  otherwise,  the  duty  before  us,  one  of  the  most  im- 
portant of  those  owed  by  capitol  to  labor,  could  be  evaded  by  capi- 
talists employing  their  own  servants  in  the  construction  of  build- 
ing's and  machinery.  In  point  of  fact,  this  is  the  case  with  most 
great  industrial  agencies,  but  in  no  case  has  this  been  held  to  relieve 
the  master  from  the  duty  of  furnishing  to  his  employes,  material, 
machinery,  and  structures,  adequately  safe  for  their  work."  The 
learned  author,  in  support  of  what  he  thus  propounds,  cites,  among 
others,  the  case  of  Ford  v.  Fitchburg  Railroad  Company,  no  Mass. 
240.  A  case  very  much  like  the  one  in  hand,  and  in  which  the  duties 
of  the  master  to  his  servants  are  well  and  ably  stated  by  Mr.  Jus- 
tice Colt.  It  is  there,  as  in  many  other  cases,  held,  that  the  legal 
rule  which  exempts  the  master  from  responsibility  for  accident  re- 
sulting to  those  in  his  employ,  or  from  those  occurring  through  neg- 
lect of  co-laborers,  does  not  excuse  him  from  the  exercise  of  rea- 
sonable care  in  supplying  and  maintaining  suitable  implements  for 
the  performance  of  the  work  required.  Nor  are  those  agents  who 
are  charged  with  the  business  of  supplying  the  necessary  machinery, 
to  be  regarded  as  fellow-servants,  but  rather  as  charged  with  the 
duty  which  the  master  owes  to  the  servant,  and  the  neglect  of  such 
agent  is  to  be  regarded  as  the  neglect  of  the  master.  So  is  the  em- 
ployer equally  chargeable  whether  the  failure  is  found  in  the  orig- 
inal tool,  or  machine  or  in  a  subsequent  want  of  repair  by  which  it 
becomes  dangerous.  There  can,  indeed,  be  no  essential  difference  in 
these  particulars,  and  the  only  question  is,  whether  the  defect  from 
which  the  accident  arose,  was  known,  or  might,  by  the  exercise  of 
reasonable  diligence,  have  been  known  to  the  master  or  his  agents. 

What  has  been  above  stated  accords,  we  think,  with  the  general 
tenor  of  our  own  authorities,  and  among  others  O'Donnel  v.  The 
Railroad  Company.  9  P.  F.  S.  241.  We  must,  therefore,  refuse  to 
sustain  the  exceptions  of  the  plaintiffs  in  error,  and  approve  the 
rulings  of  the  court  below. 

Judgment  in  each  case  affirmed.^ 

^  "As  between  the  employers  and  employed,  it  is  unquestionably  the  duty  of 
a  railroad  company  to  provide  a  track  and  equipments  which  shall  be  rea- 
sonably safe ;  but  this  does  not  oblige  the  company  to  make  use  of  the  latest 
improvements,  or  to  change  the  structures  upon  its  road  so  as  to  conform  to 
the  most  recent  or  advanced  improvements  and  ideas  upon  such  subjects." 
Sherwood,  J.,  in  Illick  v.  Flint,  etc.,  R.  R.  Co.,  67  Mich.  632,  637. 

"We  think  it  may  be  laid  down  as  a  legal  principle  that  in  all  occupations 


644  DUTIES    OF    PRINCIPAL    TO    AGENT. 

KNOX  V.  PIONEER  COAL  CO. 
1891.     Supreme  Court  of  Tennessee.     90  Tenn.  546. 

Snodgrass,  J. — Plaintiff  was  injured  while  aiding-  Shannon,  an- 
other employe  of  the  defendant  company,  to  prop  an  entry  in  de- 
fendant's mine,  where  plaintiff  was  digging  coal. 

It  was  not  his  business  to  prop  the  mine.  While  Shannon,  whose 
duty  it  was  to  prop  it,  was  thus  engaged,  he  asked  plaintiff  to  help 
him.  Plaintiff  left  the  place  where  he  was  at  work  and  went  to  do 
so.  A  large  piece  of  slate  fell  on  his  thumb  and  mashed  it  while  he 
was  so  aiding  Shannon.   He  sued  for  $1,000;  lost,  and  appealed. 

If  it  was  his  duty  to  do  this  repairing,  he  cannot  recover,  because 
the  danger  of  it  would  be  the  object  for  which  he  was  employed,  and 
was  one  assumed.  If  it  was  not  his  duty,  and  he  was  ordered  to  do 
it  by  one  not  authorized  to  command  him,  the  company  would  not 
be  liable.  Railroad  Company  v.  McDaniel,  12  Lea  386.  See  also 
14  Lea  374. 

Accepting  the  invitation  or  obeying  the  order  of  one  not  author- 
ized to  command  him,  and  voluntarily  placing  himself  in  the  dan- 
gerous position  where  he  was  hurt,  gave  him  no  right  of  action 
against  the  company. 

The  company  had  been  negligent  in  suffering  the  mine  to  g'et  in 
a  dangerous  condition,  and  allowing  it  to  remain  so,  and  had  plain- 
tiff's injury  been  occasioned  by  that  negligence  while  he  was  in  the 
line  of  his  duty  in  passing  under  the  loose  slate  the  company  would 
have  been  liable :  but  it  is  not  so  when  such  negligence  did  not  proxi- 
mately cause  the  injury,  but  the  same  was  caused  by  the  voluntary 

which  are  attended  with  great  and  unusual  danger  there  must  be  used  all 
appliances  readily  attainable  known  to  science  for  the  prevention  of  accidents, 
and  that  the  neglect  to  provide  such  readily  attainable  appliances  will  be  re- 
garded as  proof  of  culpable  negligence."  Field,  J.,  in  Mather  v.  Rillston,  156 
U.  S.  391,  399- 

"It  is  well  settled  that  among  .the  legal  obligations  of  a  master  to  his  serv- 
ant, forming  a  part  of  the  implied  contract  between  them,  is  that  of  making 
reasonable  provision  to  protect  the  servant  against  dangers  to  which  he  is 
exposed  while  conducting  the  work  he  is  employed  to  do,  and  of  supplying  a 
sufficient  number  of  servants  to  effect  the  work  with  reasonable  and  ordinary 
safety  to  those  engaged  in  performing  it ;  and  if  the  proximate  cause  of  an 
injury  sustained  by  the  servant  while  so  engaged  is  the  failure  of  the  master 
to  exercise  ordinary  prudence  in  this  respect,  the  master  is  liable,  unless  the 
servant  may  fairly  be  regarded  as  having  assumed  the  risk  incident  thereto. 
The  failure  of  the  master  in  this  respect  stands  upon  the  same  footing  as  the 
failure  to  supply  suitable  and  sufficient  machinery  or  appliances  for  conducting 
the  work  safely."  Simmons,  J.,  in  Cheeney  v.  Ocean  Steamship  Co.,  92  Ga. 
726,  728. 


il-IEISLAN] 
1898.     Sup: 
Howard,  C.  T 


I 


ny  in  sn ' 

which  ht   ,v 
or  of  appel' 
turned  answers  \ 
sel  may  best  h( 
in  refusinrr  ' 
rogatories,  i 
fo  inlerros:aton 
and  previous  tl 
coal  near  Linto 
than  a  year  beror- 
known  as  No.  2,  1' 
which  work  he 
number  of  open 
with  a  passage  way. ;  r  ent: 
'-•'y  feet  in  width ;  1I1   ■     •'• 

,s  usual  for  the  i 
end  of  the  r 

ng  mined  on 

.kness;  that  it  wai  aiw 

■  The  law  . 
:ract  bet\  ■ 

"        ^  ;■  I.'-,  [    .  .1 1     , 

Lime  the 


U"l     U7 

^o   re- 


wers  to 


dav  of 


2ii  m  ttie  c 
•un   a  '"'tttii 


more. 


n  Iron  Co.  v 
'loctrine  (assiv. 
discretion  to  apprcoui 
■'cr^t'on  to  {hf^  rr?«  r''   ■ 


i-.i'.-     l\ 

assumpt. 
417 


DUTIES   OF    PRINCIPAL 


i^'xr 


-,4'^- 


Snodgrass,  ].- 
ither  employe  (■■> 
tendant's  mine 

It  was  not  In-      fu.-i:. 

iuty  it  was  to  prop  it 
him.    Plai 
so.    A  la'' 

wa? 


mjured  while 


icre  lie  ~- 
II  his  thi 
.( d  for  $i,oo«'. 

■^opairiiv:'-.  h, 


1  m,  an- 

-  ;n  '^<- 

;o  help 
!  to  do 
hile  he 


yi,  and 
.^.cJ  to  do 
would  not 


pero' 


rnait 


'"•ent  in  suffering  the  mine  to  gfet  in 

n  "J wing  it  to  remain  so,  and  had  plain- 

by  that  negligence  while  he  was  in  the 

■T-r  the  1(  '  i  nany  would 

when  •=•  i  not  proxi- 

d  bv  the  voluntn' 


vv-liich 


^30',  39^- 
■'It  is  well  siM 


legal  obi' 


be  used 
•if  accid^;^ 
>  will  be 
Rillston, 

ister  to  his  serv 
i^  that  of  mak' 
^  (o  which   h 


The  failure  of  the  n 


wiiile 


.   I    ihe    lil,i 

e,  unless 

'dent  ther 

!'>oting  as 

^r  condiic 

Co.,  92 


PREMISES — APPLIANCES ASSUMPTION    OF   RISK.  645 

act  of  plaintiff  in  placing  himself  under  it  to  aid  another  servant  of 
the  company  at  his  request. 

Let  the  judgment  be  affirmed  with  cost.^ 


THE  ISLAND  COAL  COMPANY  v.  GREENWOOD. 

1898.     Supreme  Court  of  Indiana.     151  Ind.  476. 

Howard,  C.  J. — Appellee  was  employed  by  the  appellant  company 
in  mining  coal,  and  has  brought  this  action  to  recover  damages  for 
injuries  alleged  to  have  been  caused  by  the  negligence  of  the  com- 
pany in  suffering  coal  to  fall  upon  him  from  the  roof  of  the  mine 
in  which  he  was  at  work.  The  jury  returned  a  general  verdict  in 
favor  of  appellee,  assessing  his  damages  at  $4,500.  They  also  re- 
turned answers  to  interrogatories.  The  questions  discussed  by  coun- 
sel may  best  be  considered  in  connection  with  the  action  of  the  court 
in  refusing  to  give  judgment  to  appellant  on  these  answers  to  inter- 
rogatories, notwithstanding  the  general  verdict.  From  the  answers 
to  interrogatories  it  appears:  That  on  the  i6th  day  of  October,  1895, 
and  previous  thereto,  the  appellant  company  was  engaged  in  mining 
coal  near  Linton,  in  Greene  county ;  that  on  said  day,  and  for  more 
than  a  year  before,  appellee  was  employed  in  the  company's  mine 
known  as  No.  2,  his  business  being  to  run  a  cutting  machine,  in 
which  work  he  was  assisted  by  one  Sherwood :  that  there  were  a 
number  of  openings  in  the  mme  called  work  rooms,  each  connected 
with  a  passage  way,  or  entry,  the  rooms  being  from  twenty  to  twenty- 
six  feet  in  width :  that  after  a  room  was  started  at  a  given  width  it 
was  usual  for  the  miners  to  work  at  the  face  of  the  vein,  that  is,  at 
the  end  of  the  room  farthest  from  the  entry ;  that  the  vein  of  coal 
being  mined  on  said  i6th  of  October,  1895,  was  about  five  feet  in 
thickness  ;  that  it  was  mined  by  the  men  operating  the  machine  by 

^  "The  law  governing  the  relation  of  master  and  servant  assumes  freedom  of 
contract  between  them.  Much  of  the  world's  work  is  dangerous,  and  it  could 
hardly  be  carried  on  successfully  unless  those  who  were  employed  in  it  should 
be  held  to  assume  the  dangers  that  were  incident  to  it,  or  which  were  known, 
or  so  obvious  as  that  they  ought  to  be  known,  by  one  entering  the  employ- 
ment. Latent  or  concealed  dangers  known  to  the  master,  or  which  he  ought 
to  have  known,  must  be  explained  by  him  to  the  servant.''  Gray,  Cir.  J.,  in 
Bethlehem  Iron  Co.  v.  Weiss,  100  Fed.  Rep.  45.  49. 

"This  doctrine  (assumption  of  risk)  pre-supposes  that  the  servant  has  suffi- 
cient discretion  to  appreciate  the  dangers  incident  to  the  work,  and  has  no 
application  to  the  case  of  young  and  inexperienced  children.  In  such  a  case 
it  is  the  duty  of  the  master  not  only  to  warn  the  child,  but  to  instruct  him  as 
to  the  dangers  of  the  employment  and  the  means  of  avoiding  them."  Searls, 
C,  in  Fisk  v.  Cent.  Pac.  R.  R.,  ^2  Cal.  38,  43. 

The  doctrine  of  assumption  of  risk  applies  to  a  domestic  servant.  Herold 
v.  Pfister,  92  Wis.  417. 


646  DUTIES    OF    PRINCIPAL   TO   AGENT, 

cutting  away  a  part  of  the  lower  edge  of  the  vein  across  the  whole 
face  of  the  room,  preparatory  to  blasting ;  that  after  the  machine  men 
had  done  their  work,  other  miners,  called  loaders,  drilled  holes  in 
the  face  of  the  coal  which  had  been  so  cut  under,  into  which  holes 
blasting  powder  was  inserted,  and  thereby  masses  of  coal  were 
thrown  down  and  broken  up ;  that  while  the  loaders  were  blasting 
coal  in  one  room  and  removing  it  from  the  mine,  the  machine  men 
were  at  work  in  another  room ;  three  loaders,  in  this  case,  following 
the  two  machine  men;  that  it  was  the  business  of  the  loaders  to 
clear  up  a  room  after  a  blast  and  before  any  further  cutting  was 
done  in  it ;  that  appellee  was  hurt  in  a  room  known  as  No.  8  in  the 
ninth  entry  east  of  the  south  main  entry,  his  injury  being  caused  by 
top  coal  and  slate  falling  upon  him  from  the  roof  of  the  room ;  that 
on  the  i6th  day  of  October,  1895,  the  day  on  which  appellee  was 
hurt,  and  for  several  days  prior  thereto,  one  Newport  was  appellant's 
mine  boss ;  that  said  mine  boss  visited  room  eight  on  the  14th  day  of 
October,  1895,  and  then  found  top  coal  adhering  to  the  roof  of  said 
room,  extending  across  the  end  of  the  room  next  to  the  face  of  the 
coal,  and  being  about  eleven  feet  wide  on  the  right  hand  side  of  the 
room,  and  three  and  a  half  inches  thick ;  that  the  mine  boss  sounded 
this  top  coal  and  found  it  loose  at  the  point  where  he  sounded  it ; 
that  the  mine  boss  then  directed  one  of  the  loaders  to  take  down  the 
top  coal,  and  before  the  accident  occurred  the  loaders  did  take  down 
a  part  thereof;  that  the  part  taken  down  began  at  the  left  side  of 
the  room,  and  the  loaders  took  down  all  that  was  loose ;  that  the 
mine  boss  again  visited  the  room  on  the  morning  of  October  i6th, 
the  day  of  the  accident  to  appellee,  and  then  saw  that  a  part  of  the 
top  coal  had  not  been  taken  down ;  that  about  three-quarters  of  an 
hour  after  the  mine  boss  left  room  eight,  on  the  morning  in  question, 
appellee  and  his  assistant  brought  in  their  cutting  machine,  and  both 
noticed  that  a  part  of  the  top  coal  had  not  been  taken  down ;  that 
appellee  then  sounded  said  top  coal  by  striking  it  with  a  pick  to  dis- 
cover whether  it  was  loose  and  likely  to  fall  down,  but  upon  such 
sounding  the  coal  appeared  to  be  firm,  and  to  adhere  closely  to  the 
roof  of  the  room ;  that  appellee's  assistant,  Sherwood,  sounded  the 
top  coal  in  like  manner  with  the  handle  of  a  shovel,  and  also  found 
it  firm  and  adhering  tightly  to  the  roof ;  that  thereupon  appellee  and 
his  assistant  placed  their  machine  and  began  to  cut  the  side  of  the 
room  under  said  top  coal,  and  after  they  had  been  at  work  for  an 
hour  and  a  half  the  top  coal  fell  upon  them ;  that  the  weight  of  the 
coal  that  came  down  was  about  800  pounds,  being  all  of  the  coal 
that  adhered  to  the  roof  when  they  began  cutting,  and  it  fell  a  dis- 
tance of  two  feet  and  a  half ;  that  miners  determine  whether  top  coal, 
or  other  material  adhering  to  the  roof  of  a  room,  is  likely  to  fall 
by  striking  it  and  listening  to  the  sound ;  if  such  material  is  loose 
it  will  give  forth  a  hollow  sound  on  being  so  struck ;  no  other  method 
is  shown  for  determining  whether  top  coal  is  loose ;  that  there  is 


t'Ri 


mine. 


i  no  one 

■')ee  and  In- 
•  mine,  had 
jiic  to  n  - 
:  that  r.  . 
entered  by 
iioss ;  that  ap, 
to  work  in  a  roon; 
the  loaders  had  i' 
ccasions  to  test  tb 
and  thus  detc) 
this  occasion  : 
the  coal,  souni  i 
when  it  was  ^ 
>as  the  best  li 
•>■  Sherwood 
.tter  than  the 
4th  of  Octobe: 
le  could  do  n 
)pellee  and  S'. 
al  in  room  > 
:ts  struck  by 
om  eight  wl- 
r  the  acciden' 
•rve  its  conditio i.  .  i.. 
xe ;  that  the  reason    •. 
roofs  of  rooms  in 
cause  the  entire  vi.' 
fired ;  that  Newpoi 
of  entries,  rooms, 
:asion  to  go  in  a' 
;ning  coal,  that  j.,  . , 
ten  became  unsafe  ":■ 
s  done,  and  the  '■ 
.  n  g'e  r ,  b\'  rem  ovi  n 
lied  bet\ 
.  ;  that  ap: 
eleven  years  I- 
lie  boss  for  abou  c  l 
•J  north  and  west  of 
leering  to  the  ro<,-'f,  Im 
the  morninp;  of  th'' 
crate  the  ni^ chine  u 
iCed  his  machine  un.: 
;s  there,  in  room  eight,  ai  ih^ 


el  handle  used 

..  ,''cQ,  either  being 

in  sounding  on  the 

'  of  the 

:  it  was  . 

^n  they  sounded  the  lop 

^d  given  forth  when  it 

lat  the  condition  of 

-   '1  it  on  the  morning 

n,  but  thev  did  not  ol^ 


646 


DUTIES   OF   PRINCn 


■  uitting  away  a  pa: 
face  of  the  room,  p; 
iiad  done  their  w 
the  face  of  the  coa 
bla.uiiig  powder   • 
thrown  down  and 
coal  in  one  r&^v' 
were  at  work 
the  two  mach' 
clear  up  a  ro< 
done  in  it 
ninth  entr 
top  cc 
on  th- 
luirt, 


r  edge  . 

;o  blasting 

miners,  ca'; 

■ad  been  so 

' '!,   and  tii 

■)iat  while  itn;  lo. 
it  from  the  i"''- 
Lhree  loader 
was  the  '  ■ 
nd  bef' 
't  in  a  r 
Ml  entr^ 


•  whole 

lie  men 

oles  in 

holes 

were 

lasting 

■  men 

"g 

..  i>>  to 

g  was 

.  b  in  the 

caused  by 

n  ;  tha't 

■■.        ,■  ,      ee  was 

to,  one  Newport  was  appellant's 

. ,  iLod  room  eight  on  the  14th  day  of 

top  coal  adhering  to  the  roof  of  said 

of  the  room         ■  ■     -'  of  the 

i  wide  on  th  of  the 

:es  thick;  tha'  imded 

-  Q.t  the  poin  led  it ; 

:  one  of  the  ;  take  down  the 

...It  occurred  the  .       _.     did  take  down 

't  taken  down  began  at  the  left  side  of 


^     '-wn  all  that  ^ 

'      c;  that  the 

,1  the  morni: 

ober  r6th. 

;i-c,  and 

:  of  the 

.vn ;  thai. 

of  an 

ii' 

in  eight,  chi  ; 

'1  ciLiestion. 

«M ; 

iit  in  their  c.; 

.  and  both 

noticed  tliat  a  pan 

Loal  had 

a;  that 

appellee  th'  -      •  '^ 

oal  by  t.i ^ 

...  to  dis- 

cover  wh< 

likely  to  faUd 

upon  such 

sounding  tin;  < 

'0  firm,  .;    •  ' 

lai'sely  to  the 

roof  of  the  re 

s  assist 

I.  sounded  the 

al  in  likr 

■    .   ." 

:  and  adli'- 

his  assistant  place 

■uL  the  side  of  i 

room  under  said  ' 

::■    ,'.  work  for  . 

h^ur  and  a  half  tl. 

;1  fell  U]  ■ 

ight  of  the 

coal  that  came  do 

■bout  8v' 

...  of  the  cr-i 

that  adhered  to  th^ 

lien  they 

.d  it  fell  a  d 

tance  of  two  feet  a: 

;  that  m' 

'lether  top  C' 

or  other  material 

tr^  the 

•s  likely  to   i 

]>y  striking  it  am'' 

-aterial  ' 

:.   .,.;ii  ^:^.p  (■',~-^\^  ^  , 

•10  other 

ietennming 

whether 

;  that  tliert 

PREMISES — APPLIANCES — ASSUMPTION    OF   RISK.  647 

always  more  or  less  danger  of  top  coal  falling  from  the  roof  of  a 
mine,  and  no  one  can  determine  by  examination  when  it  will  fall ; 
that  appellee  and  his  assistant,  while  running  a  cutting  machine  in 
appellant's  mine,  had  eight  different  working  rooms,  and  changed 
from  one  to  another,  going  to  a  room  wdiich  the  loaders  had  made 
ready ;  that  rooms  were  often  shot,  cleaned  up  by  the  loaders,  and 
again  entered  by  the  machine  men  between  the  regular  visits  of  the 
mine  boss  ;  that  appellee  and  his  assistant,  Sherwood,  when  they  went 
to  work  in  a  room  often  found  top  coal  adhering  to  the  roof  wdiich 
the  loaders  had  not  taken  down,  and  it  was  their  custom  on  those 
occasions  to  test  the  condition  of  such  top  coal  by  sounding  the  same, 
and  thus  determining  whether  it  was  safe  to  work  under ;  that  on 
this  occasion  Sherwood  sounded  said  coal  all  over  its  surface,  and 
the  coal  sounded  solid  and  safe,  both  when  appellee  sounded  it  and 
when  it  was  sounded  l)y  Sherwood ;  that  the  pick  used  by  appellee 
was  the  best  thing  for  sounding  top  coal,  and  the  shovel  handle  used 
by  Sherwood  was  a  good  implement  for  that  purpose,  either  being 
better  than  the  implement  used  by  the  mine  boss  in  sounding  on  the 
14th  of  October,  1895  ;  that  to  judge  of  the  safety  of  the  top  coal  no 
one  could  do  more  than  listen  to  the  sound  when  it  was  struck ;  that 
appellee  and  Sherwood  had  good  hearing  v^-hen  they  sounded  the  top 
coal  in  room  eight,  and  both  heard  the  sound  given  forth  when  it 
was  struck  by  the  pick  and  the  shovel  handle ;  that  the  condition  of 
room  eight  when  appellee  and  Sherwood  entered  it  on  the  morning 
of  the  accident  was  open  to  their  observation,  but  they  did  not  ob- 
serve its  condition  closely  or  sound  the  top  coal  over  its  whole  sur- 
face; that  the  reason  why  top  coal  was  often  found  adhering  to  the 
roofs  of  rooms  in  which  appellee  and  Sherwood  worked  was  be- 
cause the  entire  vein  did  not  always  come  down  when  the  blast  was 
fired ;  that  Newport,  the  mine  boss,  had  general  charge  of  the  safety 
of  entries,  rooms,  and  other  places  where  employes  or  others  had 
occasion  to  go  in  appellant's  mine ;  that,  in  the  course  of  the  work  in 
mining  coal,  that  part  of  the  room  where  work  was  actually  done 
often  became  unsafe  by  reason  of  the  manner  in  which  such  work 
was  done,  and  the  loaders  often  remedied  the  trouble  which  caused 
danger  by  removing  the  top  coal ;  that  such  dangers  often  arose  and 
were  remedied  betv/een  the  visits  of  the  mine  boss,  and  without  his 
suggestion ;  that  appellee  had  been  a  coal  miner,  a  part  of  the  time, 
for  eleven  years  before  the  accident,  and  Newport  had  then  been 
mine  boss  for  about  ten  days ;  that  there  was  space  in  room  eight  to 
the  north  and  w^est  of  wdiere  the  top  coal  that  fell  on  appellee  was 
adhering  to  the  roof,  in  v/hich  they  might  have  worked  their  machine 
on  the  morning  of  the  accident ;  but  it  v/as  necessary  for  them  to 
operate  the  machine  under  tlie  overhanging  coal ;  that  the  appellee 
placed  his  machine  under  the  top  coal,  knowing  that  such  top  coal 
was  there,  in  room  eight,  at  the  time  lie  so  placed  his  machine,  and 


648  DUTIES    OF    PRINCIPAL   TO    AGENT. 

began  work  thereunder,  because  of  the  fact  that  he  had  sounded  such 
top  coal  and  beHeved  it  to  be  absolutely  safe  and  free  from  danger. 

It  is  not  contended  that  these  facts  show  contributory  negligence 
on  the  part  of  appellee ;  but  counsel  for  appellant  do  contend  that  the 
facts  so  found  show  that  appellee  assumed  all  risk  of  danger  from 
the  falling  of  the  top  coal.  Counsel  for  appellee,  on  the  other  hand, 
contend  that  the  danger  was  not  obvious  but  concealed  or  latent,  and 
that  as  to  such  danger  there  is  no  assumption  of  risk.  It  is  true 
that  the  danger  was  concealed,  but  it  was  concealed  from  appellant 
as  well  as  from  appellee.  And  while  the  duty  of  inspection  rested 
upon  the  company,  and  it  was  required  to  furnish  a  reasonably  safe 
place  for  its  employes  to  work,  yet  we  think  the  facts  show  that  the 
duty  so  resting  upon  appellant  was  performed  as  fully  as  was  reason- 
ably possible.  It  is  to  be  remembered  that  the  defect  in  the  roof  was 
not  in  the  passage  way  of  the  mine,  but  in  the  very  place  where 
appellee  was  at  work,  and  of  which  he  had  a  fuller  and  more  com- 
plete knowledge  than  appellant  could  have.  The  cause  of  danger 
w^s  in  the  immediate  presence  of  appellee,  and  had  been  thoroughly 
tested  by  him  and  his  assistant ;  and.  on  such  test,  the  place  was 
found  by  them  to  be,  as  they  believed,  perfectly  safe.  They  often 
found  such  top  coal  adhering  to  the  roof  when  they  entered  a  room 
to  work,  and  were  in  the  habit  of  testing  it,  as  they  did  on  this 
occasion.  The  jury  found  that  there  is  always  more  or  less  danger 
of  such  coal  falling,  and  that  no  one  can  tell  by  any  examination 
when  it  will  fall.  It  was  also  found  that  such  dangers  often  occur 
and  the  top  coal  is  removed  between  the  visits  of  the  mine  boss, 
and  without  his  suggestion.  No  doubt,  as  to  permanent  openings 
through  which  persons  pass  and  repass  in  the  mine,  it  is  the  duty 
of  the  mine  owner,  made  so  by  the  common  law  as  well  as  the  statute, 
to  see  that  the  mine  is  safe  from  all  dangers  that  may  be  avoided  by 
removing  or  propping  up  loose  places  in  the  roof.  And  while  the 
statute  (§  12  of  the  act  approved  March  2,  1891,  Acts  1891,  p.  57, 
§  7472,  Burns'  R.  S.  1894),  makes  it  also  the  duty  of  the  mining  boss 
to  visit  and  examine  every  working  place  in  the  mine  at  least  every 
alternate  day  and  see  that  the  same  is  properly  secured  by  props  or 
timber,  and  that  safety  in  all  respects  is  assured,  yet  these  require- 
ments must  be  taken  in  a  reasonable  sense.  It  cannot  be  intended 
that  props  shall  be  set  up  at  the  very  place  where  the  machine  men 
are  at  work.  The  men  must  have  room  to  use  their  machines  and 
tools,  and  to  engage  in  the  actual  work  before  them.  Indeed  the  fact 
that  the  mine  boss  is  not  required  to  be  present  oftener  than  every 
alternate  day  shows  that  these  props  are  not  to  be  set  up  before  the 
workmen  have  cleared  a  place  for  them.  It  is  found  that  rooms  are 
often  shot,  cleaned  up  by  the  loaders,  and  again  entered  by  the  ma- 
chine men  between  the  regular  visits  of  the  mine  boss. 

In  Louisville,  etc.,  Ry.  Co.  v.  Howell,  147  Ind.  266,  an  employe 
was  injured  by  reason  of  the  parting  of  a  coupling  pin  between  two 


dangei  -upled 

the  cars  het'.vcL;  -<^e, 

"and  thus  hari'  '  \ 

observe  it,  ti 
.  lie  for  a  knov 
chargeable  with  k\ 
■  f  machinery  rr,  ' 

me  in  contaC' 
are  at  work  a 
condition  and  ' 

>  hour,  as  th' 

vttcr  means  . 

iiployer  possiblv 

-ises,  as  sa'''  % 
'..  loi  L 


>j,   wliere  an 

.  of  of  a  minv  , 

to  work  did  n  ;  the  W( 

making"  a  danj^...  '  ■    "'^ 

acter  of  the  place 
falling  top  coal  in 
caving  in  of  a  gra 
court  that  the 
which  is  ahke 
Vincennes  Water 
'""ity  of  Lafayette,  ■ 

The  jury  here  f^ 

it  of  the  top  coal  v  ; 

•jiellee  began  work 


vcen,  whether   iIt. 
-uses  arising  afte:  .,, 
xv.ing  equal  or  better 
nger  threatening  hi: 
rht  of  action.    Were 
and  the  failure  oL 
-aid  Ix:  pn)pi>ed  or 
■rk,  the  case 
.  '-:r.  from  a  <^ 


r...i.s 


and  bci 


the  fallint;-  ■ 
contend  that  ih^ 
that  as  to  such 
that  the  danj^^ei 
as  well  as  fro' 
upon  the  cr- 


•RINCI]?.- 

■'  the  h 


,uired  t 


ch 


dn^ 

mat  tr.* 

s  reason 
roof  wa- 

n.'t   i-ii 

.  but  in 

e  vvher. 

ap; 

u-]\  he  had  r- 
could  have. 
appellee 

■T1.1       <    , 

■  estincT  1' 

thai  i>ut  ■ 
I  the  v!- 

and  withoi^' 

'bt,  as  ( 

open  ins? 

tbrouef'-'  '■ 

-:  ■-;     m     ■  ' 

the  dut; 

nl  rjic  ^ 

':e  statute- 

to  see  ih;.,T  ; 

voided  b; 

removing-  ( 

while  til' 

statute  {§  i 

Aiarch 

§7472,  Bur, 

it  '^I'-'O  ■ 

to  visit  and 

ii  least  ever 

alternate  d  ■ 

-  ■  ~   I  - 

i  by  props  c 

tinihiM".  iv-v} 

pects  is 

.hese  require 

rij'  ii-  must 

.!(         iclK' 

.,1.1,.  ..,., 

,    i,.^   ;,,t,-"  1- 

thar  props  shall  he 

that  tne  mine  boss  : 

I   than 

alternate  day 

sliows 

np  befo' 

w'.-rkmen  ha 

ve  cleared  a 

place  fv 

'lat  roon 

.  ,■-.:..-,  .•i-,,f   ,- 

leaned  up  h^ 
?tween  the  v 

r1,^      i. 

,..,)    U..    y'- 

JA 


PREMISES — APPLIANCES — ASSUMPTION    OF   RISK.  649 

cars.  The  employe  was  at  the  time  standing  on  the  front  of  the 
engine  liolding-  the  shackle  bar  in  his  hands,  and  it  was  unsuccess- 
fully sought  to  charge  him  with  having  assumed  the  risk  of  the 
danger  occasioned  by  the  defective  coupling  pin.  "Had  he  coupled 
the  cars  between  which  the  link  was  used,"  said  the  court  in  that  case, 
"and  thus  handled  the  defective  appliance  and  so  had  opportunity 
to  observe  it,  there  might  be  some  propriety  in  holding  him  account- 
able for  a  knowledge  of  its  condition.  Employes  are  rightly  held 
chargeable  with  knowledge  of  the  condition  of  the  tools  and  parts 
of  machinery  and  appliances  which  they  use  or  with  which  they 
come  in  contact."  The  same  is  true  of  the  places  in  which  employes 
are  at  work  and  v/ith  which  they  are  in  immediate  contact.  The 
condition  and  dangers  of  such  places  are  liable  to  change  from  hour 
to  hour,  as  the  work  progresses,  and  the  employe  himself  has  much 
better  means  of  knowing  of  such  condition  and  dangers  than  his 
employer  possibly  can  have.  An  important  consideration  in  such 
cases,  as  said  by  the  supreme  court  of  Iowa,  in  Corson  v.  Coal  Hill 
Co.,  loi  Iowa  224,  70  N.  W.  185,  is  whether  the  structure,  appliance 
or  instrumentality  is  one  which  has  been  furnished  for  the  work  in 
which  the  employes  are  to  be  engaged,  or  whether  the  furnishing 
and  preparation  of  it  is  itself  part  of  the  work  which  they  are  em- 
ployed to  perform.  So  in  Finalyson  v.  Utica  Mining  Co.,  67  Fed. 
507,  where  an  employe  was  injured  by  material  falling  from  the 
roof  of  a  mine,  it  was  held  that  the  rule  as  to  providing  a  safe  place 
to  work  did  not  fully  apply  to  a  case  where  the  work  consisted  in 
making  a  dangerous  place  safe,  or  in  constantly  changing  the  char- 
acter of  the  place  for  safety  as  the  work  progressed.  The  case  of 
falling  top  coal  in  such  a  case  as  the  one  before  us  is  not  unlike  the 
caving  in  of  a  gravel  pit,  v.-here  it  has  been  frequently  held  by  this 
court  that  the  employe  assumes  the  risk  of  such  a  possible  danger 
which  is  alike  open  to  the  observation  of  employer  and  employe. 
Vincennes  Water  Supply  Co.  v.  White,  124  Ind.  376;  Swanson  v. 
City  of  Lafayette,  134  Ind.  625. 

The  jury  here  find  that  both  appellant  and  appellee  knew  that  a 
part  of  the  top  coal  was  left  adhering  to  the  roof  of  the  place  where 
appellee  began  work.  Appellee  found  the  coal,  as  he  and  his  as- 
sistant believed,  to  be  so  fast  to  the  roof  as  "to  be  absolutely  safe 
and  free  from  danger."  In  this  it  turned  out  that  they  were  mis- 
taken, whether  the  defect  then  existed  or  was  brought  about  by 
causes  arising  after  appellee  and  his  assistant  had  begun  their  work. 
Having  equal  or  better  opportunities  than  appellant  for  knowing  the 
danger  threatening  him,  it  would  seem  that  appellee  could  have  no 
right  of  action.  Were  it  not  for  the  provisions  of  the  statute  above 
cited,  and  the  failure  of  the  jury  to  find  whether  the  overhanging 
coal  could  be  propped  or  timbered  without  undue  interference  with 
the  work,  the  case  would  hardly  admit  of  doubt.  We  are  of  opinion, 
however,  from  a  consideration  of  the  whole  case  as  presented,  that 


650  DUTIES   OF    PRINCIPAL   TO   AGENT. 

justice  will  best  be  promoted  by  granting  a  new  trial,  rather  than  by 
ordering  judgment  on  the  answers  to  interrogatories.  Judgment 
reversed,  with  instructions  to  grant  a  new  trial,  and  with  leave  to 
amend  pleadings  if  desired.^ 


LLOYD  V.  HANES. 
1900.     Supreme  Court  of  North  Carolina.     126  N.  C.  359. 

Civil  action  for  damages  for  personal  injury  alleged  to  have  been 
occasioned  by  the  negligence  of  defendant  in  permitting  a  saw  used 
in  their  factory  to  remain  without  guard  or  screen,  or  safety  ap- 
pliance used  on  such  machinery,  to  prevent  injury  to  operatives,  tried 
before  Robinson,  J.,  at  February  term,  1900,  of  Forsythe  Superior 
Court. 

The  defendant  denied  all  negligence  on  their  part,  and  attributed 
plaintiff's  injury  to  his  own  carelessness.  The  plaintiff  was  the  only 
witness  examined.  He  testified :  "I  am  forty-two  years  old,  and  have 
been  box-maker  for  ten  or  twelve  years.  In  1899  I  was  working  for 
defendants  in  their  shops  in  Winston.  The  shop  is  not  joined  to  the 
tobacco  factory,  but  is  in  the  factory  lot,  and  is  operated  by  steam 
generated  from  the  main  boiler  in  the  factory.  They  own  the  ma- 
chinery in  the  shop.  I  got  part  of  my  thumb  cut  off  as  I  was  sizing 
box  timber.  The  saw  came  out  of  the  table  about  one  inch  above  the 
boards  of  the  table.  I  was  pushing  the  timber  when  the  saw  struck 
a  knot,  or  gave  way,  and  thrust  my  hand  against  the  saw  and  cut  off 
part  of  my  thumb.  It  was  an  open  saw  without  hood  or  screen.  I 
had  never  seen  or  knew  of  a  screen  or  hood  operated  in  this  manner 
before  I  was  hurt.  I  have  since  seen  such  protection  and  hoods, 
especially  in  the  factory  of  Bailey  Bros.  (Hood  here  introduced 
and  exhibited  to  the  jury.)  They  make  saws  less  dangerous.  If 
there  had  been  a  screen  or  hood,  and  the  saw  had  struck  a  knot  or 
cross-grain,  it  could  have  thrust  my  hand  on  the  screen  and  not  on 
the  saw.  I  was  required  to  size  the  timber  down  to  a  32d  of  an 
inch,  which  was  very  careful  work.  I  took  particular  pains  to  hold 
the  boxing  in  place.  I  cannot  do  the  same,  or  as  good  work  as  then. 
I  got  Si  per  day  before  I  was  hurt.  I  cannot  get  so  much  now.  I 
cannot  average  over  60  cents  per  day. 

"W.  H.  Woodward  in  the  shop  employed  me.  I  never  spoke  to 
Hanes  about  my  employment,  and  never  saw  either  of  the  Hanes 

^  Contributory  negligence  and  assumption  of  risk  are  often  confused  by  the 
courts.  See  McKee  v.  Chicago,  etc.,  Ry.  Co.,  83  Iowa  616.  The  question  of 
contributory  negligence  is  for  the  jury.  Amato  v.  North.  Pac.  R.  Co.,  46  Fed. 
Rep.  561.  Where  a  defect  in  the  premises  is  plainly  observable  by  an  employee, 
he  assumes  the  risk  as  a  matter  of  law,  and  the  question  is  not  for  the  jury. 
Lindsay  v.  New  York,  etc.,  R.  Co.,  112  Fed.  Rep.  384. 


eini 


^•'  m  t^ 


a  eacii  < 
;.     The  : 
&  Co.' 

Cross-examined 
1.  Woodward  in 
■'-:  to  the  rl-r 
appear  ; 
ward,  who  . 
ig  of  a  sr.v; 
was  dangerou 
he  knew  it  w:. 
at  one  time,  b< 
Brown  &  WiJi 
tract  at  defen.i 
his  own  hands,  o.' 
saws,  but  had  iv^  <  - 
to  the  one  b) 
now  working 
man  hired  to  <' 
guard  similar 
factories  in  W 
ments. 

At  the  close  oi  il:, 
the  plaintiff,  on  hi- 

1.  Because  hi?  • 
was  dangerous,  and  th: 
been  engaged  in  sm-  : 
character  of  the  w- 

2.  Because  his  ' 
>y\  between  him  . 
The  plaintiff,  fr<  > 
a  led  to  the  supri. 
Clark,  J. — We  ■■ 

-■n  employe  operate 
which  have  come  • 
risk"  which  rc^ 
simply  to  hold 
■■     :'-.';:'-iii;,  but  ii 
-  -      ;nan  to  n. 
■'.  er.     This  nega* : 
.  ■    "t  his  negligence, 
'  tion,  those  whose  iv 
'T  they  can  get  it.    A 
is  not  to  be  held  as 
i"  work  at 
ments  or  s. 


here  was  a 
1  and  paid 
Hanes 

■     W. 


TJ 


rt,  and 

That 
.It 


n  uses  a  saw  wii 
hurt.     In  the  tobacco 
f  the  different  depart- 

e,  his  honor  intimated  tb  : 
ot  entitled  to  re^ 
•   the  sav  •'■-'     ■ 
dangero. 
waive  y  -. 


DUTIES    OF    PRI 


justice  will  best  be  j 
.1  ■h-v'f.-.cr  judgment 
I,  with  instil 
^leadings  i' 


by  grai ; 
nswers 
>  grant 


r  than  by 
udgment 
leave  to 


HANES. 


Civil  acil 
occasioned 
in  thei 
plianct. 
before 


par 

had  ne- 
before  . 
especially   i 
and  exhibiui 
there  had  been 
cross-grain,  it  t 
the  saw.     T  \v; 
ir 

th  ,     ^■. 

I  y  r  day  be 

v>.,age  ove^ 
H.  Woodwci 
,1'tanes  ahc  /     ' 

*  Cont:  ■' 
courts. 


:nal  laj-u- 

',  been 

.  iidant  in 

used 

•ut  guard  or 

V  ap- 

J  nrevent  in 

,  tried 

buperioi- 

.1  their  y. 

ittributi'' 

ctsncss.    Th': 

the  only 

"I  am  forty- 

And  have 

,rs.    In  ; 

lOr  for 

The  s! 

to  the 

otoi-y  lot,  an. 

by  steam 

..  in  the  factor-. 

1  the  ma- 

irt  of  my  thumb  cut 

as  sizing 

of  the  table  about  our.  Mim  alx>ve  thr 

ng  the  timber  when  the  saw  struck 

ny  hand  ajjainst  i' 

ud  cut  I'l'" 

:>en  saw  without 

-creen.     ; 

■   en  or  hood 

ir. 

■    :■.  seen  such 

Bros.     (  . 

'.itroduce  ! 

,TM-e  ^■• 

•rous.     1 1 

,1  knot  oi 

:\  and  not  oi' 

;  a  32d  of  an 

•  pains  to  h^•^ 

work  as  the 

much  nr 

shop  c; 

r  spoke  1 

_ .,  1 

■be  Han' 

rinsed  ^^-  '■ 

' 

The  que.' 

PREMISES — APPLIANCES — ASSUMPTION    OF   RISK.  65  I 

employ  or  pay  the  hands  in  the  several  departments.  There  was  a 
manager  in  each  department  in  the  factory,  that  employed  and  paid 
the  hands.  The  bills  for  lumber  were  made  out  to  P.  H.  Hanes 
&Co." 

Cross-examined,  plaintiff  testified :  That  he  was  employed  by  W. 
H.  Woodward  in  the  box  shop,  and  paid  by  him.  That  he  never 
spoke  to  the  defendants  about  employment  or  his  work,  nor  did  his 
name  appear  upon  their  time  book,  but  his  time  was  kept  by  W.  H. 
Woodward,  who  run  the  box  shop,  and  paid  for  his  labor.  That  the 
running  of  a  saw  of  this  kind  was  dangerous,  and  that  he  knew  it 
was  dangerous.  That  his  hands  were  cold  the  day  he  was  hurt,  and 
he  knew  it  was  more  dangerous  when  his  hands  were  cold.  That 
at  one  time,  before  his  injury,  he  had  a  contract  to  make  boxes  at 
Brown  &  Williamson's  factory,  similar  to  W.  H.  Woodward's  con- 
tract at  defendant's  factory.  That  he  employed  his  own  labor,  paid 
his  own  hands,  but  they  furnished  the  shop  and  power  to  run  his 
saws,  but  had  no  control  over  his  hands.  That  he  used  a  saw  similar 
to  the  one  by  which  he  was  injured,  without  a  guard.  That  he  is 
now  working  at  Taylor  Bros.'  factory,  under  a  contract,  and  has  a 
man  hired  to  do  his  re-sawing,  and  this  man  uses  a  saw  without  a 
guard  similar  to  the  one  on  which  he  was  hurt.  In  the  tobacco 
factories  in  Winston  there  are  managers  of  the  different  depart- 
ments. 

At  the  close  of  the  plaintift''s  evidence,  his  honor  intimated  that 
the  plaintiff',  on  his  own  evidence,  was  not  entitled  to  recover : 

1.  Because  his  evidence  showed  that  the  sawing  of  box  plank 
was  dangerous,  and  that  he  knew  it  was  dangerous,  and  that  he  had 
been  engaged  in  similar  work  ten  or  twelve  years,  and  knew  the 
character  of  the  work. 

2.  Because  his  testimony  did  not  establish  any  contractual  rela- 
tion between  him  and  defendants. 

The  plaintiff",  from  this  intimation,  submitted  to  a  nonsuit,  and  ap- 
pealed to  the  supreme  court. 

Clark,  J. — We  cannot  agree  with  the  defendant's  counsel  that  if 
an  employe  operates  a  machine  which  is  lacking  in  safety  appliances 
which  have  come  into  general  use,  that  this  is  an  "assumption  of 
risk"  which  releases  the  employer  from  liability.  That  would  be 
simply  to  hold  that  if  such  appliances  are  not  used  the  defendant 
is  negligent,  but  if  the  pressure  of  circumstances  forces  some  un- 
fortunate man  to  accept  service  with  such  machine  it  releases  the 
employer.  This  negatives  the  liability  of  the  employer  by  the  very 
fact  of  his  negligence,  and  that  as  to  the  class  most  needing  pro- 
tection, those  whose  urgent  need  compels  them  to  take  work  wher- 
ever they  can  get  it.  As  was  said  in  Sims  v.  Lindsay,  122  N.  C.  678: 
"It  is  not  to  be  held  as  a  matter  of  law  that  operatives  must  decline 
to  work  at  machines  which  may  be  lacking  in  some  of  the  improve- 
ments or  safeguards  they  have  seen  upon  other  machines,  under  pen- 


652  DUTIES    OF    PRINCIPAL   TO   AGENT. 

alty  of  losing  all  claims  for  damages  from  defective  machinery.  It 
is  the  employer,  not  the  employe,  who  should  be  fixed  with  knowl- 
edge of  defective  appliances,  and  held  liable  for  injuries  resulting 
from  their  use.  It  is  only  where  a  machine  is  so  grossly  or  clearly 
defective  that  the  employe  must  know  of  the  extra  risk,  that  he 
can  be  deemed  to  have  voluntarily  and  knowingly  assumed  the  risk." 

To  illustrate — if  a  railroad  company  fails  to  use  automatic  coup- 
lers it  is  negligence  per  se.  Troxler  v.  R.  Co.,  124  N.  C.  189;  Green- 
lee v.  R.  Co.,  122  N.  C.  977.  If  one  should  take  service  upon  a  rail- 
road not  having  such  appliances,  this  would  not  absolve  the  railroad 
from  liability  for  its  negligence  in  not  using  such  life  and  limb- 
saving  device.  The  doctrine  of  "assumption  of  risk"  is  more  rea- 
sonable and  extends  no  further  than  that  if  a  particular  machine  has 
become  injured  or  dangerous,  and  the  employe,  seeing  the  danger, 
does  not  report  its  condition,  but  goes  on  with  his  work  in  disregard 
of  it,  he  assumes  the  risk.  The  difference  between  "knowledge  of 
the  danger"  in  the  first  case  (absence  of  safety  appliances  which 
should  be  in  use),  and  "assumption  of  the  risk"  (by  working  without 
protest  at  a  machine  which  has  become  defective  and  dangerous),  is 
pointed  out  among  many  other  cases,  in  a  late  decision  of  the  House 
of  Lords,  Smith  v.  Baker,  App.  Cases  L.  R.  (1891)  325,  in  a  discus- 
sion of  the  difference  between  the  maxims  "scienti  non  fit  injuria" 
and  "volenti  non  fit  injuria,"  the  former  not  being  law,  for  which 
Lord  Halsbury  cites  Bowen,  L.  J.,  in  Thomas  v.  Quartermine,  18  Q. 
B.  D.  685,  and  Lindley,  L.  J.,  in  Yarmouth  v.  France,  19  Q.  B.  D. 
647,  660,  and  further  cites  from  the  latter  case  that  even  when  an 
employe  reports  the  defect,  if  he  is  told  to  go  on  with  his  work,  and 
does  so  to  avoid  dismissal,  a  jury  may  properly  find  that  he  had  not 
agreed  to  take  the  risk,  and  had  not  acted  voluntarily  in  the  sense 
of  having  taken  the  risk  upon  himself.  Whereupon  Lord  Halsbury 
sums  up  "in  order  to  defeat  a  plaintiff's  right  to  recover  by  the 
maxim  relied  on  {volenti  non  fit  injuria,  anglice,  'assumption  of 
risk'),  the  jury  ought  to  be  able  to  affirm  that  he  consented  to  that 
particular  thing  being  done  which  would  involve  the  risk,  and  con- 
sented to  take  the  risk  upon  himself."  This  has  the  weight  of  prac- 
tical common  sense,  no  matter  from  what  court  it  came,  but  with 
some,  common  sense  has  an  added  value  when  it  iis  found  in  a  deci- 
sion of  the  House  of  Lords.  The  distinction  is  wide  between  mere 
"knowledge  of  the  danger,"  and  "voluntary  assumption  of  the  risk." 

Besides,  "assumption  of  risk"  is  a  matter  of  defense,  analogous 
to,  and  indeed,  embraced  in,  the  defense  of  "contributory  negligence," 
Rittenhouse  v.  Railroad,  120  N.  C.  544,  and  it  is  an  error  to  direct 
a  nonsuit.  Cox  v.  Railroad,  123  N.  C.  604.  The  jury,  as  Lord  Hals- 
bury says,  must  pass  upon  the  question  whether  the  employe  volun- 
tarily assumed  the  risk.  It  is  not  enough  to  show  merely  that  he 
worked  on,  knowing  the  danger. 

But  the  plaintiff,  in  fact,  failed  to  make  out  negligence  on  the  part 


i 


Jown  jr 
.-  ...,..,,,. a  thn^  ■: 
that  "It  is  nc; 

-afegnari 

rlee  V.  I; 

;   cases. 

"luld  not  ■ 
judge. 

It  is  unnec 
signed  that  t' 
between  plain  ..•, 
as  a  general  rule 
chargeable  to  his 
3.-^  Am.  St.  692.  r 


THE  i.\. 


Elliott,  J. — 5i 
of  the  comjv  ' 
yard  n^ar  the 
and  switches  used  jo; 
day  of  October,  1882 
as  a  night  watchman. 
and  over  the  yard  at 
erty  of  his  employer. 
ployes.     The 
man  should  b- 
discharge  his 
ger,  yet  the  a^  , 
the  appellee  had  been 
necessary  for  him  to 
and  to  protect  himsei 
for  him  in  a  short  tii 
formance  of  hi>?  (hitir 
the  appe'' 
C>n  the  n.L 
on  his  part,  while  m  the 

*  See  acticle,  "Vc  1 
Harv.  Law  Rep.,  14  , 


...  the 


iy'2 


DUrjK.-;    MP    PRINCIPAL   li, 

!?es  froir. 


■'er,  no- 
;ctive  a] 
-ir  use.     It"; 
•  that  the  t 
eeraed  to  ha 
. .    iiiustrate — it  - 
lers  it  is  neghge;- 
lee  V.  R.  Co.,  12. 
road  not  h.^vine 
tr-'- 


a  aiacli 

know  . 

and  kp' 
!pany  fa.: 
T  V.  R.  Co.,  124 


m  tliat  ii  a  paii 

'.  the  cninl<:>'.'e.  - 


;ce   of    Su 


he  risk,'' 


risk'),  the  jury 

particular  'i' 

tic  - 

SO!  ■ 

sion  of  the  House  c 

•irio,,  ir.,!,^^  Qf  the  <!, 

"assumi  ' 


injuria 


.i\  a  lau 
L.  R.  (, 
:e  maxims  *'. 
^'"'•mer  not.  ;... 

:  Thomas  v.  Q 

1  ;ir mouth  v.  Fravcc,  jm  y^.   r:..   l'. 

the  latter  ra^  that  even  when  ar 

;^  told  t-  ith  his  work,  an  1 

!  that  he  had  not 


may  pr> 
not  aci 


distmc 


in  the  sens' 

rd  Halsbur; 

r  bv  the 


jetween  mere 
of  the  ri^:'- ' 
■•0.  anal 


a  noiis' 
Ijurv  sa 

lanly  assumed  the  risk,     it  is  r. 
-'     1  on,  knowing  the  danr-pr 
;ie  plaintiflf,  in  fact,  f. 


merely  that  lie 
■e  on  the  pa: 


I 


PREMISES — APPLIANCES — ASSUMPTION    OF    RISK.  653 

of  the  defendants  upon  the  evidence  because  he  failed  to  show  that 
the  safety  apphance  which  he  alleges  would  have  prevented  the 
injury  was  in  general  use,  and,  in  fact,  he  shows  the  contrary'.  The 
rule  laid  down  in  Witsell  v.  Railroad,  120  N.  C.  557,  is  not  that  it 
is  required  that  the  latest  improved  appliances  be  provided,  but  only 
that  'Tt  is  negligence  not  to  adopt  and  use  all  approved  appliances 
and  safeguards  which  are  in  general  use."  This  has  been  approved, 
Greenlee  v.  Railroad  Co.,  supra;  Troxler  v.  Railroad,  supra,  and  in 
other  cases.  The  intimation  that  upon  the  evidence  that  the  plain- 
tiff could  not  recover  was  correct,  but  not  for  the  reason  given  by  the 
judge. 

It  is  unnecessar}',  in  this  view,  to  consider  the  other  ground  as- 
signed that  the  evidence  did  not  establish  any  contractual  relation 
between  plaintiff  and  defendants.  It  may  be  said,  however,  that 
as  a  general  rule  the  negligence  of  an  independent  contractor  is  not 
chargeable  to  his  employer.  Engle  v.  Eureka  Club,  137  N.  Y.  100, 
33  Am.  St.  692,  and  note.   Affirmed.^ 


THE  INDIANAPOLIS  &  ST.  LOUIS  RAILWAY  v.  WATSON. 

1887.     Supreme  Court  of  Indiana.     114  Ind.  20. 

Elliott,  J. — Stated  in  a  condensed  form,  the  material  allegations 
of  the  complaint  are  these :  The  appellant  maintained  a  freight 
yard  near  the  city  of  Indianapolis,  in  which  there  were  many  tracks 
and  switches  used  for  handling  locomotives  and  cars.  On  the  15th 
day  of  October,  1882,  the  appellee  was  in  the  service  of  the  appellant 
as  a  night  watchman.  His  duties  as  such  watchman  were  to  go  about 
and  over  the  yard  at  all  hours  of  the  night,  and  look  after  the  prop- 
erty of  his  employer,  and  to  wake  up  at  the  proper  times  its  em- 
ployes. The  appellant  knew  that  it  was  necessary  that  the  watch- 
man should  be  provided  with  a  light  in  order  that  he  might  properly 
discharge  his  duties  and  at  the  same  time  protect  himself  from  dan- 
ger, yet  the  appellant  refused  to  provide  a  light.  A  day  or  two  after 
the  appellee  had  been  so  employed  he  notified  his  employer  that  it  was 
necessary  for  him  to  have  a  light  in  order  to  discharge  his  duties 
and  to  protect  himself.  His  employer  promised  to  procure  a  light 
for  him  in  a  short  time,  and  requested  him  to  continue  in  the  per- 
formance of  his  duties.  Relying  on  this  promise,  he  did  continue  in 
the  appellant's  service,  but  the  light  was  not  provided  as  promised. 
On  the  night  of  November  i,  1882,  he  was  injured,  without  anv  fault 
on  his  part,  while  in  the  discharge  of  his  duties,  and  his  injury  was 

^  See  article.  "Voluntary  Assumption  of  Risk,"  by  Francis  H.  Bohlen.  20 
Harv.  Law  Rep.,  14-34  and  91-115. 


654  DUTIES    OF   PRINCIPAL   TO   AGENT. 

caused  by  the  wrong-  and  negligence  of  the  appellant  in  failing  to 
provide  him  with  a  lantern. 

The  fourth  instruction  given  by  the  court  reads  thus :  "The  general 
rule  is,  that  when  a  servant,  before  he  enters  the  service,  knows  it 
to  be  hazardous,  or  voluntarily  continues  his  service,  without  objec- 
tion or  complaint,  when  he  has  such  knowledge,  he  is  presumed  to 
contract  with  reference  to  the  state  of  things  as  they  are  known  to 
him,  and  if  he  knows  that  the  continuance  of  such  service  exposes 
him  to  constant  and  certain  danger,  the  servant  in  such  cases  takes 
the  risk  upon  himself,  and  in  case  he  suffers  injury  thereby,  he 
waives  all  claims  for  damages  against  his  master  for  such  injury. 
As  has  been  said  in  argument,  the  master  is  not  required  to  take 
better  care  of  his  servant  than  he  takes  of  himself." 

Appellant's  counsel  dissects  this  instruction,  and,  seizing  on  the 
words   "without   objection   or  complaint,"    assails   it  as   erroneous. 

This  course  cannot  be  successfully  pursued.  The  instruction  must 
be  taken  in  connection  with  the  others  of  the  series,  and  cannot  be 
considered  as  standing  alone.  An  instruction  is  not  to  be  judged 
by  taking  mere  fragments  dislocated  from  their  proper  connections, 
nor  is  one  instruction  to  be  taken  as  complete  in  itself.  This  instruc- 
tion must,  as  is  well  settled,  be  taken  as  an  entirety,  and  in  connection 
with  the  others  referring  to  the  same  subject  and  immediately  con- 
nected with  it.  City  of  Indianapolis  v.  Gaston,  58  Ind.  224 ;  Deig  v. 
Morehead,  no  Ind.  451. 

We  must,  therefore,  take  the  fourth  instruction  in  connection  with 
that  bearing  upon  the  same  subject,  which  is  as  follows: 

"6.  To  the  general  rule  I  have  announced  in  relation  to  a  servant 
who,  with  a  knowledge  of  the  dangers  of  the  service,  continues  in 
it,  there  is  at  least  this  exception,  that  if  a  servant  knows  that  his 
service  is  dangerous,  and  that  he  has  not  been  provided  with  proper 
means  or  implements  for  the  reasonably  safe  performance  of  the 
duties  of  his  employment,  and  makes  complaint  to  his  master,  who 
promises  that  suitable  and  proper  implements  shall  be  provided  him 
to  render  his  service  less  dangerous,  then  such  servant  may  con- 
tinue in  the  service  a  reasonable  time,  and  may  recover  for  an  injury 
sustained  by  him  within  such  time,  if,  on  account  of  the  master's 
negligence  in  failing  to  supply  the  means  of  avoiding  danger,  the 
injury  results ;  provided  such  servant  at  the  time  of  the  injury  was 
not  guilty  of  any  negligence  which  contributed  to  produce  the  injury. 
His  care  must  be  also  proportioned  to  the  danger ;  when  the  one  is 
increased,  the  other  must  be  also.  Yet  all  that  is  required  is  ordi- 
nary care  under  the  circumstances  of  the  case.  And  you  must 
determine  from  the  evidence  in  the  case  what  would  be  a  reasonable 
time  within  which  he  might  continue  in  the  master's  service  under 
said  promise,  if  any  was  made,  and,  also,  what  would  be  ordinary 
care — that  is,  such  care  as  an  ordinarily  prudent  and  cautious  per- 


ao  IK' I 

thAt   -A' 


:r  Call'". 
vvho  re- 


■e  by  ih>; 
:  he  nex' 
lorities 


e  alter  urgi:;-   :  ^;o.  y. 

•  L.  Reg.  574;  "  ro     c 

.  Rep.  120;  2  Ti 
■  refill  exH'^^'- 
iinsel  b, 
-i.cu  that  thi 
;i  Hohnes  \ 


!-'ar] lament . 


's  m  a  5-' 


f:.;,4  i-'UTIF.S    OF    PRINCIPA. 

ca-  ailing-  \v 

e  gener?, 
nai  v>  I'l  knows  i 

,/,arclous,  ;t  objec 

u«.ji  ur  complaint,  v 
■  -  '"-net  with  refof  ■ 
1  if  he  1 

.,.,.,  .^  const'^'"  

the  risk  up  '^e  suif< 

waives  all  '.  ^t  his  mci:>ic. 

A;-;  lias  bee!  "laster  is  no; 

bet;  '  '  ■'  ■ 

loueou.- 

!;>>n  mu.'^ 

he  ^-s,  and  cannot  hi 

'..,  ,1,.  . .  ,1..  w  ,  •  -•-  to  be  jrri--" 

ted  from  the  •  connect 


•.tiy    COJi- 

-'i"tion  in  connection  with 
ls  follows: 

'-'':■  to  a  servant 

continues  ii; 

ii,  -  that  his 

'h  prope; 
■^  of  the 
ter,  wh"' 
^  ;-0'ni:'t  ^  iV:  -  'ded  him 

to  render  h  ^   may  con- 

tinue in  the  for  an  injurv 


111!'  jury  was 

;i    :  e  injury. 

!ie  one  i 

nary  care  u'ndt  on  musi 

.1  reasof    '  ' 
"(?rvic«»  1 

.     :■:.   yn 

■■•A  ,■,' i      ,  ,  ■      . 


PREMISES — APPLIANCES — ASSUMPTION    OF   RISK.  655 

son  would  exercise  under  the  circumstances  of  the  case.  The  want 
of  such  care  is  what  the  law  terms  negligence." 

If  these  instructions,  taken  together,  express  the  law,  then  the  ap- 
pellant has  no  just  cause  of  complaint,  even  though  the  isolated 
clause  which  counsel  detaches  and  assails  should  in  itself  be  re- 
garded as  an  inaccurate  statement  of  the  law.  Our  conclusion  is, 
that  when  the  instructions  are  so  taken  they  express  the  law  as 
favorably  to  the  appellant  as  it  had  a  right  to  ask. 

The  first  of  these  instructions  does  not  assert  that  those  employees 
who  continue  in  the  master's  service,  "without  objection  or  coin- 
plaint,"  do  not  assume  the  usual  risks  of  the  service.  It  simply 
asserts  that  all  who  do  continue  "without  objection  or  complaint" 
do  assume  the  risks  incident  to  the  service ;  but  it  by  no  means  as- 
serts that  those  who  do  complain  and  object  do  not  also  assume  those 
risks.  Possibly,  the  instruction  standing  alone  may  be  incomplete, 
but  it  cannot  be  justly  said  to  be  erroneous,  since  it  may  be  true  that 
all  who  continue  in  a  sers'ice  without  objection  do  assume  the  risks 
as  well  as  those  who  do  make  objections.  But,  however  this  may 
be,  it  is  sufficiently  evident  that  the  fourth  instruction  is  made  com- 
plete by  the  sixth,  and  there  is,  therefore,  no  available  error. 

The  next  step  takes  us  into  a  field  of  stubborn  conflict.  There  are 
authorities  holding  that,  where  the  employee  objects  to  the  safety 
of  the  appliances  furnished  him,  the  employer  is  liable  if  the  employee 
is  injured  while  in  the  employer's  service,  and  within  a  reasonable 
time  after  urging  the  objection.  Union  Mfg.  Co.  v.  Morrissey,  22 
Am.  L.  Reg.  574;  Thorpe  v.  Mo.  Pacific  Ry.  Co.,  89  ^lo.  650,  58 
Am.  Rep.  120 ;  2  Thompson  Negligence,  1009. 

A  careful  examination  of  the  other  authorities  relied  on  by  appel- 
lee's counsel  has  satisfied  us  that  they  do  not  decide  all  that  it  is 
asserted  that  they  do. 

In  Holmes  v.  Clarke,  6  Hurl.  ,&  N.  349,  the  master  neglected  to 
fence  a  dangerous  place,  as  an  act  of  Parliament  required  him  to 
do,  and  a  servant  was  awarded  a  recovery  for  injuries  caused  by  this 
negligence.  Leaving  out  of  consideration  the  element  introduced 
by  the  positive  legislation,  although  it  is  by  no  means  clear  that  the 
act  of  Parliament  did  not  exert  an  important  influence,  we  yet 
conclude  that  the  case  does  not  sustain  appellee's  position.  Wabash, 
etc.,  R.  Co.  V.  Locke,  112  Ind.  404. 

This  conclusion  we  rest  upon  these  words  of  the  opinion  in  the 
case  cited  by  counsel :  "Where  machinerv  is  required  by  an  act  of 
Parliament  to  be  protected,  so  as  to  guard  against  danger  to  persons 
working  it,  if  a  ser\'-ant  enters  into  the  employment  when  the  ma- 
chinery is  in  a  state  of  safety,  and  continues  in  the  service  after  it  has 
become  dangerous  in  consequence  of  the  protection  being  decayed  or 
withdrawn,,  bat  complains  of  the  want  of  protection,  and  the  master 
promises  to  restore  it,  but  fails  to  do  so,  we  think  he  is  guilty  of 
negligence,  and  that  if  any  accident  occurs   to  the   servant   he   is 


656  DUTIES    OF    PRINCIPAL   TO    AGENT. 

responsible."  The  promise  of  the  master  formed,  it  is  obvious,  an 
important  factor  in  the  case,  and  exerted  a  controlHng-  influence  on 
tl^  judgment  of  the  court. 

There  are  some  expressions  in  Greene  v.  Minneapohs,  etc.,  Ry. 
Co.,  31  Minn.  248,  that  seem  to  support  the  appellee's  contention, 
but  the  ultimate  decision  is  against  him.  It  was  there  said:  "If 
the  emergencies  of  a  master's  business  require  him  temporarily  to 
use  defective  machinery,  we  fail  to  see  what  right  he  has  in  law  or 
natural  justice  to  insist  that  it  shall  be  done  at  the  risk  of  the  servant 
and  not  his  own,  when,  notwithstanding  the  servant's  objection  to 
the  condition  of  the  machinery,  he  has  requested  or  induced  him  to 
continue  its  use  under  a  promise  thereafter  to  repair  it."  At  an- 
other place,  the  court,  in  speaking  of  the  general  rule,  asserts  that 
the  master  is  liable  where  the  servant  gives  notice  of  the  defects 
and  the  master  "thereupon  promises  that  they  shall  be  remedied." 

The  utmost  that  can  be  deduced  from  the  case  under  immediate 
mention  is,  that  the  servant  may  continue  in  the  service  a  reasonable 
time  after  the  promise  to  make  the  machinery  or  appliances  safe,  and 
that  if  he  is  injured  Vv'ithin  that  time  he  may  maintain  an  action. 

The  cases  of  Kroy  v.  Chicago,  etc.,  R.  R.  Co.,  32  Iowa  357 ; 
Greenleaf  v.  Dubuque,  etc.,  R.  R.  Co.,  33  Iowa  52,  Muldowney  v. 
Illinois  Central  R.  R.  Co.,  39  Iowa  615  ;  Lumley  v.  Caswell,  47  Iowa 
159;  and  Way  v.  Illinois  Central  R.  R.  Co.,  40  Iowa  341,  do  not, 
as  we  understand  them,  go  further  than  to  hold  that  the  master  is  not 
liable  where  the  servant  continues  in  his  service  with  notice  of  its 
danger,  unless  he  has  induced  the  servant  to  do  so'  by  an  express  or 
implied  promise.  In  Way  v.  Illinois  Central  R.  R.  Co.,  supra,  it 
was  held  error  to  refuse  an  instruction  containing  this  clause :  "If 
a  brakeman  on  a  railroad  knows  that  the  materials  with  which  he 
works  are  defective,  and  continues  his  work  without  objecting,  and 
without  being  induced  by  his  master  to  believe  that  a  change  will  be 
made,  he  is  deemed  to  have  assumed  the  risks  of  such  defects."  This, 
we  think,  implies  that  there  must  be  a  promise  either  in  express 
words  or  arising  by  fair  implication  from  the  conduct  of  the  master. 
Going  back  to  the  case  of  Kroy  v.  Chicago,  etc.,  R.  R.  Co.,  supra, 
we  find  the  principle  upon  which  the  subsequent  decisions  rest,  for 
they  are  all  built  upon  that  case.  It  was  there  said :  "Another  im- 
portant modification  of  the  liability  of  a  master  for  an  injury  to  an 
employee,  which  is  sustained  by  an  almost  unbroken  current  of  au- 
thority in  this  country  and  in  England,  is,  that  if  a  servant  knows 
that  a  fellow-servant  is  habitually  negligent,  or  that  the  materials 
with  which  he  works  are  defective,  and  continues  his  work  without 
objecting,  and  without  being  induced  by  his  master  to  believe  that 
a  change  will  be  made,  he  is  deemed  to  have  assumed  the  risk  of  such 
defects."  This  ruling  certainly  does  not  sustain  the  appellee's  con- 
tention that  if  an  objection  and  protest  are  made  the  master  be- 
comes liable.     The  case  of  Snow  v.  Housatonic  R.  R.  Co.,  8  Allen 


iiat  a 
...  .aiov'- 
•Q  risks  , 
e  em  pic 
,tv  as  to 


'U,  it  would 
r'-n  or  prot; 
:.s  the  ri- 
te indi; 
lilt  to  r. 


}  wiiat 
"Such  .     . 
xpress  or  ''• 
^^.    Wharton  ?•. 
Phis  author  is.  i, 
■'■  rule,  e\ 
ihe  excel 
ij."»t  of  events  ti 
iters,  goes  on  Wi 
defect.    But  thi 
OS  where  the  em, 
:  yet  intelli.srentl . 


hority  ma}' 
service  of  h 
'5^er  of  the  service,  a 
^ss  the  master  expr. 
'Xt.     The  promise;  c^ 
he  promise  be  .' 
ur  conclusion  \' 
Oil.  I4i^  ^  " 
42      . 


(li 

li!C 

;  >U3,  an 

-   and  0 

';nce  on 

I     i-      t           .    fiClit  Oi    I' 

'^'    v  are  sorn 

in  Gr€^ 

ic,  Ry. 

;i  Minn.  24.-- 

om 

to   SUpp' 

mention, 

.    .iie  ultimrit^ 

'-  -,< 

|-j;I1t.T       ^T  '  : 

i:     "If 

I  he  emerg-ent! 

'mil  he  done  at  tl  . 

•irily  to 
law  or 
servant 

i'.iui  110 L    -. 

■'        ■          '■"! 

*^hp-  '■n^';']'' 

tliereafier  tc> 
of  the  cf'T-i.^'  ■ 

■,1    1  •;■ 

'.  ■     At  an- 
isserts  that 

the    ]: 

•'ant  gi\ 
..i.-,3  that  tlr 
iced  from  tr 

time  lie  niA 

rjo..  etc:.  K' 

.  Co.,  40 

or  liiau  to  hi'  ' 
iLies  in  his  s 
he  servant  t' 
Lllinois  Ceni 

^.he  defects 
■  -lied." 
nediate 

.  aciion. 

Irvva  35;  , 

vncy  V. 

!/  Iowa 

Ic                 lo  not, 

r  is  not 

'  of  it< 

was  held 

truction  cor.' 

lause:     "li 

a  bni'- - 

'■-    .h-;    7I-,,. 

1  which  he 

\vor]^ 

■  lUst  be  a  pi 
•tion  froni,  tlv 

ecting,  and 

mge  will  ^'O 

'icts."  Tl... 

in  express 

the  master. 

;  back  to  the 

cat 

Co.,  .??(/?■■, 

.    ...id  the  princ" 

1,-.  , 

lis  rest,  i'  ■ 

1. hey  are  all  built  f 

t  was  t!:' 

vnother  lu 

It  modificati' 

-.     ., 

.11  injury  to  .r 

\ee,  which  ;- 

1  current  of  n  . 

this  CQi 

a  a  servant  knc 

'    :aw-s'en . 

th-^t  the  mater, 

,\Jih  wiiich  he  wc. 

rk  with 

o]>jectino,  and  wir 

believe  t: 

;.  '■naiiL;-e  will  \u:  'n; 

''  1 '.  ■ . 

!ii;  1;  '[^r 

i  the  risk  of  s>' 

'.lofects."     This  nil 

ing 

ccrtainl; 

I    appellee  -  ■ 

■  ention  that  if  an 

obj 

ection  a 

the  ma: 

omes  liable.    The 

case  of  '' 

' ' 

PREMISES APPLIANCES ASSUMPTION    OF    RISK.  65/ 

441,  cannot  be  regarded  as  in  point  upon  this  question,  nor  can  the 
case  of  Indiana  Car  Co.  v.  Parker,  too  Ind.  i8i,  for  both  of  these 
cases  simply  affirm  the  general  rule  that  it  is  the  duty  of  the  master 
to  provide  his  servants  with  a  safe  working-  place  and  with  safe 
machinery  and  appliances. 

In  Patterson  v.  Pittsburgh,  etc.,  R.  R.  Co.,  76  Pa.  St.  389,  there 
was  an  express  promise  on  the  part  of  the  master,  and  that  fact 
gives  a  controlling  force  to  the  decision  there  made.  We  are  re- 
ferred to  Dr.  Wharton's  statement  that  "In  this  country  the  excep- 
tion has  been  still  further  extended,  and  w'e  have  gone  so  far  as  to 
hold  that  a  servant  does  not,  by  remaining  in  his  master's  employ, 
with  knowledge  of  defects  in  machinery  he  is  obliged  to  use,  assume 
the  risks  attendant  on  the  use  of  such  machinery,  if  he  has  notified 
the  employer  of  such  defects,  or  protested  against  them,  in  such  a 
way  as  to  induce  a  confidence  that  they  will  be  remedied."  Wharton 
Neg.  (ist  ed.),  §  221. 

If  it  were  conceded  that  this  is  a  correct  .statement  of  the  law, 
still,  it  would  not  supply  a  premise  for  the  conclusion  that  an  ob- 
jection or  protest  exempts  the  servant  from  the  general  rule  that  he 
assumes  the  risk,  for  it  is  implied  that  something  must  be  done  by  the 
master  to  induce  the  belief  that  the  defect  will  be  remedied,  and  it 
is  difficult  to  conceive  what  other  thing  than  a  promise,  express  or 
implied,  can  be  regarded  as  sufficient  to  induce  such  a  belief.  We 
find  on  examining  the  later  edition  of  Dr.  Wharton's  book  that  he 
adds  to  what  is  copied  from  the  earlier  edition  by  counsel  these 
vv'ords :  "Such  confidence  being  based  on  the  master's  engagements, 
either  express  or  implied,"  and  modifies  the  statement  in  other  re- 
spects.   Wharton  Negligence  (2d  ed.),  §  220. 

This  author  is,  indeed,  inclined  to  condemn  the  exception  to  the 
general  rule,  even  as  he  states  it,  for  he  says :  "The  only  ground  on 
which  the  exception  before  us  can  be  justified  is,  that  in  the  ordinary 
course  of  events  the  employee,  supposing  the  employer  has  righted 
matters,  goes  on  with  his  work  without  noticing  the  continuance  of 
the  defect.  But  this  reasoning  does  not  apply,  as  we  have  seen,  to 
cases  where  the  employee  sees  that  the  defect  has  not  been  remedied, 
and  yet  intelligently  and  deliberately  continues  to  expose  himself  to 
it."    Wharton  Negligence  (2d  ed.),  §  220. 

The  rule  which  we  regard  as  sound  in  principle  and  supported  by 
authority  may  be  thus  expressed :  The  employee  who  continues  in 
the  service  of  his  employer  after  notice  of  a  defect  augmenting  the 
danger  of  the  service,  assumes  the  risk  as  increased  by  the  defect, 
unless  the  master  expressly  or  impliedly  promises  to  remedy  the 
defect.  The  promise  of  the  master  is  the  basis  of  the  exception. 
If  the  promise  be  absent  the  exception  cannot  exist.  In  support 
of  our  conclusion  we  refer  to  these  authorities :  Russell  v.  Tillot- 
son,  140  Mass.  201  ;  Linch  v.  Sagamore  Mnfg.  Co.,  143  Mass.  206; 
42 — Rein  HARD  Cases. 


658  DUTIES    OF    PRINCIPAL   TO   AGENT. 

Hatt  V.  Nay,  144  Mass.  186;  Buzzell  v.  Laconia  Manfg.  Co.,  48 
Maine  113  \'j']  Am.  Dec.  212,  218,  and  authorities,  n.)  ;  Galveston, 
etc.,  R.  R.  Co.  V.  Drew,  59  Tex.  10  (46  Am.  Rep.  261 ;  Webber  v. 
Piper,  38  Hun  353  (33  Alb.  L.  J.  64)  ;  Pennsylvania  Co.  v.  Lynch, 
90  111.  333;  Wood  Master  and  Servant,  21 ;  Beach  Cont.  Neg.  372. 

The  rule  absolving  the  servant  from  the  assumption  of  risks  is  an 
exception  to  the  general  rule,  for  the  general  rule  is  that  the  serv- 
ant does  assume  all  the  ordinary  risks  of  the  service  he  enters.  There 
must,  therefore,  be  some  ground  for  the  exception,  and  the  only 
solid  ground  that  can  be  found  is  the  inducement  held  out  by  the 
agreement  of  the  master.  If  this  be  not  so,  then  an  employee  at 
his  first  entrance  into  service  might  object  and  protest,  and  suc- 
cessfully claim  that  he  was  exempt  from  the  perils  of  the  service. 
Or,  if  our  theory  be  not  sound,  a  mere  complaint  or  objection  might, 
in  effect,  overturn  the  general  rule,  and  this  would  result  in 
confusion  and  uncertainty.  We  can  see  no  way  to  hold  that  the 
servant  is  exempt  from  the  known  risks  of  his  service  where  there 
is  no  express  or  implied  contract  on  the  part  of  the  master,  without 
completely  nullifying  the  general  rule.  The  servant  is  at  liberty 
to  quit  the  service,  and  if  he  remains  after  knowledge  of  its  danger 
he  assumes  the  risks,  even  though  he  may  object  or  complain,  un- 
less he  is  induced  to  continue  by  a  promise  of  the  master  to  remove 
the  cause  that  augments  the  danger,  since,  if  this  be  not  true,  it 
must  be  true  that  any  objection  or  complaint  made  at  any  time  will 
absolve  him  from  the  risk,  and  this  conclusion  cannot  be  sustained. 
As  the  exception  concedes  and  tries  the  general  rule,  it  cannot  be 
allowed  to  destroy  it,  for  if  it  were  allowed  to  do  this,  it  would 
cease  to  be  an  exception.  Sweeney  v.  Berlin,  etc.,  Co.,  loi  N.  Y. 
520. 

The  evidence  in  this  case,  as  counsel  concede,  shows  that  a  lantern 
was  essential  to  the  service  the  appellee  undertook  to  perform ;  that, 
as  the  appellee  knew,  without  the  lantern  the  act  which  he  was  en- 
gaged in  performing  subjected  him  to  great  danger,  and  he  was  in- 
jured while  attempting  to  perform  it.  Nor  does  the  counsel  for  the 
appellant,  as  we  understand  his  argument,  contend  that  it  was  not 
the  duty  of  the  company  to  provide  the  lantern,  nor  does  he  ques- 
tion the  authority  of  the  person  to  whom  the  appellee  made  appli- 
cation for  one  to  act  for  the  company  in  such  cases.  The  central 
position  assumed  is,  that  the  evidence  does  not  show  any  promise. 
This  is  the  question  presented  to  us,  and  the  question  to  which  we 
at  this  point  limit  our  decision.  We  are,  therefore,  required  to  de- 
termine whether  there  is  evidence  fairly  supporting  the  verdict  on 
this  subject,  and  in  doing  so  we  must  take  that  which  the  jury 
deemed  credible  and  trustworthy.  Julian  v.  Western  Union  Tel. 
Co.,  98  Ind.  327. 

We  cannot  sustain  the  verdict  unless  we  find  in  the  record  evi- 
dence tending  to  prove  that  a  promise  to  remedy  the  cause  of  the 


PREMISES AITL. 


that 

ter  ! 


by  it. 


i  danger  of  the 
■A.  -  promise  in di iced 
•  acquired  knowledr--- 
:'s  failure  to  fuv 
r:  the  promir- 
If  either  be 
omise  th  • 
:-■€  to  con 
danger,  and  if  no  .. 
the  appellee,  for  iii 
the  position  that   the 
•service. 

The  appellee's  arirun 
tne  evidence  s]>  " 

master's  agent 
case  in  a  distinct  |. 
to  the  neglect  oi 
and  was  characterized  h 
di-awal  of  the  promises 
remark  indicating  at  H' 
be  delayed.    That    ' 
pectation  that  the  r, 
for  the  fulfilment 
of  the  master  to  dc 
and  that  he  was  doin^  ' 
and  could  have  doiv^  - 
as  to  the  track  the 
train  being  made  up 
by  a  sudden  jar  from  „ 
expect,  and  had  no  r.-n^c: 
taken  no  precaution." 

In  substance,  the 
a  promise  to  furni:.. 
fendant's  agent  acctis.  1  p!; 
told  him  he  would  be  '    ' 
was  no  promise  at  all. 
"  t.    There  was  no  rc' 
Want's  service  till  a  : 

,-  swears  that   a-; 
ould  get  a  larif 
•c  without  any  expec 
! id  get  him  a  lantern  \u  :,.  i,  . 
ation  he  threatened  to  lamni 
^^    did  not  care  for  plaintiff's  s, 
promise  to  fumish  a  lantern  -r 
relieve  ^  from  tb 

-:'rn  for  ;  dav  , 


■ice  af- 
)is  em- 

•■-  must 
'ed 


under 


rn.    Th 
-.jistence  oi    .tie   . 
rds,  but  there  was  nc 
-hing  but  an  angry,  peuiLur, 
rnent  of  the  promise  might 
in  the  service  with  the  ex- 
"ty,  and  looked  every  night 
he  was  sent  by  the  agent 
-'  in  which  he  was  injured, 
e  location  of  movine  cars. 
:,  havinr 
i.  from  ' 


and  agamst 


6=;8 


PRINCIPAL   TO 


.viain;    113    KJ"^  i\\V' 

etc.,  K.  R.  Co.  V.  y 
PiiMjf,  38  Hun  353 
90  '11.  333 ;  Wood 
The  rule  absolvi. 
exception  to  t^v 
ant  does  assun: 
must,  therefori 
solid  ground  < 
agreement 
his  first  €1 
cessfuUy  ( 
On  if  01.  r 
in    eii 
CO-  '• 

St 

i.=^ 

c< 

to  quii 

he  as:-; 

less  hv 

the  cau.v. 

must  be  ti 


Cc 

520. 

The  evidence  .  . 
was  essential  to  th. 
as  the  appellee  ' 
gaged  in  perfr 
jured  while  at. 
appellant,  as  ^^ 


.;:-.    Co.  48 

12,  zyr-,  ijiG  :-:Tnorir'  >jalveston, 

Tex.  10  (46  Arn.  K'  V^bber  v, 

.    L.  J.  64)  ;  Pen  Cynch, 

id  Servant,  21 ;  ;.  372. 

rvant  from  the  assuiv!  ,  is  an 

for  the  general  r;  > ;  serv- 

iisks  of  the  serv!  There 

;d  for.  the  excepiv.  ,    nu:  uic  only 

is  the  inducement  liehl  out  by  the 

■     be  not  so,  th'  ^tployee  at 

\'X  object  an.  ,  and  suc- 

rnpt  from  the  perils  01  the  service. 

f  mere  complaint  or  objection  might, 

i    rule,    and    this    would    result    in 

e  can  see  no  way  to  hold  that  the 

wn  risks  of  his  service  where  there 

"  on  the  part  of   '  cr,  without 

al  rule.     The  s  nt  liberty 

aains  after  i-  danger 

■;.igh  he  may  >    ,  ,     m,  un- 

'•e  by  a  promise  of  tlie  masiijr  to  remove 

0  danger,  since,  if  this  be  not  true,  it 

.  or  complaint  made  at  any  time  will 

this  conclusion  cannot  be  sustained. 

!  tries  the  general  rule,  it  cannot  be 

were  allowed  to  do^  this,  it  would 

■  mey  V.  Berlin,  etc.    Co.,  loi  N.  Y. 


:.el  concc- 

Uee  und< 

•.<;  iantern  th 

nim  to  great 

"t.    Nor 
.■unif'Dt,  . 


the  duty  of  the  company  to  piuvide  th- 
tion  the  authority  of  \\v'  r.erson  to  wh' 
cation  for  one  to  '  'le  company 

position  assumed  i;  e  evidence  • 

This  is  the  questi-  ted  to  us,  ai 

at  this  point  limit  -ion.    W. 

temiine  whether  il  \idence 

this  subject,  and  in  vioing  so  we 
deemed  credible  rmd  trr.-tvcrthv. 
Co.,  98  Ind.  3 

We  cannot  t...  .c....  u,,,   ,.,.....  ,,, 

dence  tendmg  to  prove  that  a  promise 


that  a  lantcra 
iorm ;  that, 
he  was  en- 
he  was  in- 
'  sei  for  tlie 
it  was  not 
does  he  ques- 
:e  made  appli- 
The  central 


iirci!  i','  '1'- 
verdirt  Oil 


..;  the  recoi'.  . 
V  the  cause  of  th  ■ 


PREMISES — APPLIANCES — ASSUMPTION    OF    RISK.  659 

augmented  danger  of  the  service  was  made  by  the  appellant,  and 
that  this  promise  induced  the  appellee  to  remain  in  the  service  af- 
ter he  acquired  knowledge  of  the  increased  peril  caused  by  his  em- 
ployer's failure  to  furnish  him  with  a  lantern.  Two  things  must 
concur :  the  promise,  express  or  implied,  and  the  inducement  created 
by  it.  If  either  be  absent  the  case  fails.  If  no  reliance  was  placed  on 
the  promise  there  could  not  have  been  an  inducement  influencing  the 
appellee  to  continue  in  the  service  with  knowledge  of  its  increased 
danger,  and  if  no  promise  was  made  the  case  is  still  stronger  against 
the  appellee,  for  in  that  event  there  could  be  no  possible  ground  for 
the  position  that  the  employer  induced  him  to  continue  in  the 
service. 

The  appellee's  argument  on  the  point  under  discussion  is,  that 
the  evidence  shows  "three  conversations  between  the  servant  and  his 
master's  agent;  the  first  two  being  friendly,  and  resulting  in  each 
case  in  a  distinct  promise  to  furnish  the  lantern.  The  third  was  due 
to  the  neglect  of  the  master  and  the  persistence  of  the  servant, 
and  was  characterized  by  some  angry  words,  but  there  was  no  with- 
drawal of  the  promises  before  made — nothing  but  an  angry,  petulant 
remark  indicating  at  most  that  the  fulfilment  of  the  promise  might 
be  delayed.  That  the  servant  continued  in  the  service  with  the  ex- 
pectation that  the  master  would  do  his  duty,  and  looked  every  night 
for  the  fulfilment  of  the  promise.  That  he  was  sent  by  the  agent 
of  the  master  to  do  the  particular  service  in  which  he  was  injured, 
and  that  he  was  doing  his  best  to  see  the  location  of  moving  cars, 
and  could  have  done  so  with  a  light,  but,  having  none,  was  misled 
as  to  the  track  the  moving  cars  were  on,  from  having  just  seen  a 
train  being  made  up  on  track  number  three,  and  was  thus  injured 
by  a  sudden  jar  from  a  car  on  track  number  two,  which  he  did  not 
expect,  and  had  no  reason  to  anticipate,  and  against  which  he  had 
taken  no  precaution." 

In  substance,  the  argument  of  the  appellant  is  this :  "Instead  of 
a  promise  to  furnish  a  lantern  there  was  a  quarrel,  in  which  de- 
fendant's agent  accused  plaintifif  of  carrying  off  the  lantern,  and 
told  him  he  would  be  lucky  if  he  got  another  in  a  month.  There 
was  no  promise  at  all.  This  was  the  last  conversation  upon  the  sub- 
ject. There  was  no  request  that  plaintiff  should  remain  in  the  de- 
fendant's service  till  a  lantern  should  be  furnished.  The  plaintiff 
emphatically  swears  that  defendant's  agent  did  not  lead  him  to 
believe  he  would  get  a  lantern  short  of  a  month,  and  that  he  went  to 
work  without  any  expectation  that  Howells,  the  defendant's  agent, 
would  get  him  a  lantern  in  less  than  a  month,  and  in  this  same  con- 
versation he  threatened  to  lamm  the  agent  because  'it  looked  like 
he  did  not  care  for  plaintiff's  safety.'  Now,  if  there  had  been  a 
promise  to  furnish  a  lantern  at  the  end  of  thirty  days,  that  would 
not  relieve  plaintiff  from  the  risk  incurred  by  working  without  a 
lantern  for  that  thirty  days,  when,  as  he  says,  he  had  no  expectation 


66o  DUTIES    OF    PRINCIPAL   TO   AGENT. 

that  a  lantern  would  be  furnished."'  See  Stand.  Oil  Co.  of  Ind.  v. 
Helmick,  148  Ind.  457. 

It  is  true,  as  appellee's  counsel  affirm,  that  there  were  three  con- 
versations, and  that  in  two  of  them  a  promise  was  made ;  but  it 
is  also  true  that  the  appellee,  finding  that  the  promise  was  not  kept, 
entered  complaint,  and  was  told  in  the  last  conversation  that  he 
would  be  lucky  if  he  got  a  lantern  in  a  month.  It  is  likewise  true 
that  the  appellee  did  not,  after  the  last  conversation,  rely  on  the 
promise  previously  made,  for  he  testified  that  he  did  not  expect  to  be 
supplied  with  a  lantern.  This  is  his  own  testimony :  "After  I  had 
asked  him  for  the  lantern  twice,  and  then  left  orders  twice,  I  went 
over  early  to  see  him  myself,  and  told  him  it  was  dangerous — it 
was  a  dangerous  place  to  be  without  a  lantern — and  it  seemed  like 
it  made  him  out  of  humor,  and  he  said:  'You  may  think  yourself 
well  off  if  you  get  a  lantern  in  a  month,'  and  then  I  did  not  say  any- 
thing more  to  him  about  it.  That  was  two  weeks  before  I  was  hurt 
that  I  asked  Mr.  Howells  for  the  last  time  for  a  lantern.  Well, 
when  he  would  not  get  me  a  lantern,  and  when  he  spoke  the  way 
he  did,  I  got  a  little  excited,  and  when  I  get  excited  I  will  say  what 
I  please.  He  said  the  men  need  not  be  carrying  their  lanterns  off, 
they  were  all  charged  up  to  them.  I  told  him  I  had  not  lost  my 
lantern,  and  had  not  carried  it  off,  but  put  it  into  the  box,  and  that 
if  he  would  have  a  box  for  the  night  men  and  a  box  for  the  day 
men  they  might  save  their  lamps.  It  was  in  this  same  conversa- 
tion that  he  told  me  I  would  be  lucky  if  I  got  another  lantern  in  a 
month.  It  was  after  that  I  had  a  rough  talk  with  him,  because  he 
had  insulted  me  there,  because  it  looked  like  he  did  not  care  for 
my  safety."  In  answer  to  this  question :  "He  did  not  lead  you  to 
expect  that  he  was  going  to  get  a  lantern  for  you  short  of  a  month 
in  that  conversation,  did  he?"  the  appellee  said:  "No,  sir."  He 
was  also  asked  this  question :  "And  you  went  on  to  work  in  the 
yard  without  a  lantern,  and  without  any  expectation  that  Howells 
would  get  a  lantern  for  you  within  a  month,  did  you  not?"  and  his 
answer  was,  "Yes,  sir." 

The  appellee  also  testified  that  Howells  was  the  only  man  he  ever 
asked  for  a  lantern,  and  thus  narrates  one  of  the  first  conversations : 
"I  told  him  I  had  been  pretty  nearly  killed  down  in  the  yard  once 
without  a  lamp,  and  I  did  not  want  to  be  killed  by  neglect  of  having 
the  lamp  there ;  then  I  got  a  little  out  of  fix  because  he  didn't  furnish 
me  a  lamp,  and  I  told  him  I  had  pretty  nearly  got  killed  in  that 
yard  by  being  struck  by  a  car,  and  all  that ;  that  is  what  I  said,  and 
then  he  promised  to  get  me  a  lamp." 

After  the  most  careful  study  we  find  ourselves  unable  to  resist 
the  conclusion  that  the  verdict  cannot  be  sustained.  We  are  con- 
strained to  hold  that  the  appellee  was  not  induced  to  remain  in  the 
appellant's  service  by  any  promise,  express  or  implied.  On  the  con- 
trary, the  clear  and  irresistible  inference  from  the  evidence  is  that 


PRFMI«r 


the  proirns^   .,..■. 
service,  knowing  i 
l-'Ti'-  -1,  .or  lamp,  r> 
i  says  that  ' 
tioii  that  How  ells 
This  shows  the  c 
of  Howells,  and  i' 
that  those  word?  • 
before  us,  we 
us  save  that  wl.,  ;; 
affirm  that  an  Qx\v-\o\f- 
ter  he  has  acqiiii'  ;  ' 
assumes  the  risk    ,. 
'  promise,  expr-:>s  ur 

We  do  not  d-- "i-art  f; 
ordinary  care  t  )  provr 
for  his  emplo}v.es  ,  b\il 
a  case  as  this.     7  :ie  m' 
Car  Co.  V.  Pari  er.  .supra,  ■ 
Ind.  51 ;  PemiS;l.ania  Co.  ^ 

It  is  the  apjiii^  ,(;i<)n  — 
the  principle  it  ^--.;r.v 
chinery  and  a] 
not  know  of  t! 
know  of  their 
■"ithout  being  i. 

The  employee  li-; 
or  by  reasonable  ^ 
the  assumption  th: 

fe  appliances ;  b' 
>   can  no  longer   ■ 
puts  an  end  to  hi 
duty.     It  is  manu 
l>een  performed  carir'  ■    -c 
'  ^sumption  that  it  li.iO  ■ 

<:hin  the  rule  that  tht 

which  he  has  kri. 

liana,  etc.,  R.  W 
Co.  V.  Stupak,  lob  iij^' 

..,  83  Ind.  191. 

Where  there  is  a  promi- 

continue  in  the  servi'- 

igth  of  time,  rely  ori 

s  the  danger  of  contui  ;  .;;  i 

so  great  that  a  reasonal'ly 
Railway  Co.,  100  U. 


ued  in  the 
u  that  the 

ided.  He 
\-  expecta- 

a  month. 

!hf»  words 

■:!n 

;)en  to 


firmly  settled,  l 
!•  >  iile,  etc.,  R.  V'  • 
III  Ind,  212, 

de  by  the  appellee,  and  not 

'.te  rule  asserts  that  the  ma- 

;  those  who  do 

■     ■•  ,.       :^/:v  to  those  v;ho 
'ill  contmue  ce 

iiployer'v  r-' 
■  uires  kii  i" 

Me 


rt  that 


•;e 
•le 
a- 
it, 
it. 


DUTIES   OF   PRINCIPAL  TO  AGEN 


that  a  lantern  would  1 
Helmick,  148  Ind. 

It  is  true,  as  api 
vers:itions,  and  that  ii 
is  also  true  that  the  ap 
entered  complaint,  an. 
would  be  lucky  if  he  .. 
that  the  appellee  did 
promise  previously  r  ■ 
supplied  with  a  Ian: 
asked  him  for  the 
oyer  early  to  see 
was  a  dai: 


ad."    See  Stand 


oi  Ind. 


el  affirm,  tiiat  th-  three  con- 

them  a  pr  but  it 

ding-  that  tb^  t  kept, 

Id  in  the  last   convc  nat  he 

':ern  in  a  mnv."       Ti  ,  ;^e  true 

-  the  last  CO  ely  on  the 

testified  tha;  ■■--^rt  to  be 

i.-;  his  own  t'.  I  had 

\  and  then  letl   jfcurji  tuicc,  I  went 

•nd  told  him  it  was  dangerous — it 

ithout  a  lanteni-  -ar.d  it  seemed  like 


it  made  li; 

>i  he  said:    'You 

i     think  yourself 

well  ofT  if  ^ 

■I  month,'  and  the 

ot  say  any- 

thing  mor^ 

I' at  was  two  week 

[  was  hurt 

that  I  ask 

the  last  time  fr 

rn.     Well. 

\\  : ;    :      ' 

;i.  lantern,  and  whei. 

■    tlie  way 

I-.' 

.   and  when  I  get  exc, 

v  what 

.  need  not  be  carryin 

rns  off. 

;o  them.     I  told  him 

i  )St  my 

1  it  off,  but  put  it  in; 

•■■A  tha't 

-r  the  night  men  an*; 

.   ihe  day 

men  1 

lamps.     It  was  in  t 

conversa- 

ti'-"  ^' 

d  be  lucky  if  I  got  ,: 

mtern  in  a 

V- 

''  had  a  rough  talk  v. 

because  he 

had     i. 

ause  it  looked  li' 

>t  care  for 

my  sa;     . 

this  question:    '     ' 

cad  you  to 

expect  that  lu' 

>  get  a  lantern  i' 

»f  a  month 

in  that  conver- 

•?"  the  appellet 

sir."     He 

was  also  asked  ti-. 

"And  you  \^ 

.  ork  in  the 

yard  without  a  lau 

-  ithout  any  cX(_v.vi 

.      .     .iHt  Howells 

would  get  a  lantern 

i'hin  a  month,  did 

\'>a  not?"  and  his 

answer  was,  "Yes, 

The  appellee  ah>' 

'  Howe^' 

n.an  he  ev(  r 

asked  for  a  lantcn. 

■ 

onversations : 

"I  told  him  I  had 

•  the  yard  once 

without  a  lamp,  and  I 

anc  to  bt 

2:]ect  of  having 

the  lamp  there ;  then  I 

..  o'li  ,-,r 

.  ;!c  didn't  furnish 

me  a  lamp),  and  I  toLi 

got  killed  in  that 

yard  by  being  struck  b> 

.    .  .-  '  ,   dlnl   .■  ■ 

•  -^"t  r   -r,id.  -n-' 

then  he  promised  to  geJ 

nie  a  lamp. 

After  the  most  careful  study  w^ 

.naUle  to  resist 

the  conclusion  that  the  verdict  can 

We  are  con- 

strained  to  hold  that  the 

appellee  \\ 

in  the 

.rOi  ellant's  service  hv  'av,\ 

f)romise,  c   , 

/  .        '11  ■."!€  con- 

the  clear  ati 

ible  inferen<                 1 

le  evidence  is  th 

PREMISES APPLIANCES ASSUMPTION    OF    RISK.  66l 

the  promise  was  withdrawn,  and  that  the  appellee  Continued  in  the 
service,  knowing  its  great  danger,  ^^dthout  any  promise  that  the 
lantern,  or  lamp,  required  to  make  it  safe,  would  be  provided.  He 
himself  says  that  "he  went  on  with  the  work  without  any  expecta- 
tion that  Howells  would  get  a  lantern"  for  him  within  a  month. 
This  shows  the  construction  put  by  the  appellee  upon  the  words 
of  Howells,  and  it  is  the  only  natural  and  reasonable  construction 
that  those  words  will  bear.  With  this,  the  appellee's  own  testimony, 
before  us,  we  can  see  no  other  course  consistent  with  duty  open  to 
us  save  that  which  leads  to  a  reversal  of  the  judgment.  We  must 
affirm  that  an  employee,  who  continues  in  the  employer's  service  af- 
ter he  has  acquired  knowledge  of  its  great  and  immediate  dangers, 
assumes  the  risk,  unless  he  is  induced  to  continue  in  the  service  by 
a  promise,  express  or  implied. 

We  do  not  depart  from  the  rule  that  an  employer  is  bound  to  use 
ordinary  care  to  provide  a  safe  working  place  and  safe  appliances 
for  his  employees ;  but  we  do  hold  that  the  rule  cannot  apply  to  such 
a  case  as  this.  The  rule  itself  we  regard  as  firmly  settled.  Indiana 
Car  Co.  V.  Parker,  supra;  Krueger  v.  Louisville,  etc.,  R.  W.  Co.,  iii 
Ind.  51 ;  Pennsylvania  Co.  v.  Whitcomb,  iii  Ind.  212. 

It  is  the  application  of  the  rule  as  made  by  the  appellee,  and  not 
the  principle  it  asserts,  that  we  deny.  The  rule  asserts  that  the  ma- 
chinery and  appliances  must  be  kept  safe  as  against  those  who  do 
not  know  of  their  unsafe  condition,  but  does  not  apply  to  those  who 
know  of  their  unsafe  condition,  and  still  continue  in  the  service 
without  being  induced  to  do  so  by  the  employer's  promise. 

The  employee  has  a  right,  until  he  acquires  knowledge  of  danger, 
or  by  reasonable  care  might  acquire  such  knowledge,  to  act  upon 
the  assumption  that  his  employer  will  use  ordinary  care  to  provide 
safe  appliances ;  but  when  he  becomes  fully  informed  of  the  danger, 
he  can  no  longer  act  upon  this  assumption.  Knowledge  on  his  part 
puts  an  end  to  his  right  to  assume  that  the  master  has  done  his 
duty.  It  is  manifest  that  one  who  knows  that  a  duty  has  not 
been  performed  cannot  reasonably  assert  that  he  acted  upon  the 
assumption  that  it  had  been  performed.  The  case,  therefore,  falls 
within  the  rule  that  the  employee  assumes  the  risks  of  all  the  dangers 
of  which  he  has  knowledge.  Pennsylvania  Co.  v.  Whitcomb,  supra; 
Indiana,  etc.,  R.  W.  Co.  v.  Dailey,  100  Ind.  75 ;  Lake  Shore,  etc.,  R. 
W.  Co.  V.  Stupak,  108  Ind.  i ;  Umback  v.  Lake  Shore,  etc.,  R.  W. 
Co.,  83  Ind.  191. 

Where  there  is  a  promise  to  repair  which  induces  the  employee 
to  continue  in  the  service,  then,  doubtless,  he  may,  for  a  reasonable 
length  of  time,  rely  on  the  promise  and  continue  in  the  service,  un- 
less the  danger  of  continuance,  without  a  removal  of  the  cause  of  it, 
is  so  great  that  a  reasonably  prudent  man  would  not  assume  it. 
Hough  V.  Railway  Co.,  100  U.  S.  213 ;  Loonam  v.  Brockway,  3  Rob. 


662  DUTIES    OF    PRINCIPAL   TO   AGENT. 

(N.  Y.)  74;  Illinois  Cent.  R.  R.  Co.  v.  Jewell,  46  111.  99;  Crichton  v. 
Keir,  i.  C.  Sess.  Cas.  (3d  Series)  407. 

Some  of  the  cases  go  further  and  assert  that  the  promise  of  the 
employer  exonerates  the  employee  entirely,  even  though  the  con- 
tinuance in  the  service  is  known  to  him  to  be  constantly  and  im- 
mediately dangerous.  Ft.  Wayne,  etc.,  R.  R.  Co.  v.  Gildersleeve, 
33  Mich.  133.  We  are  not  inclined  to  adopt  this  view.  Our  opin- 
ion is,  that  if  the  service  cannot  be  continued  without  constant  and 
immediate  danger,  and  the  danger  and  its  character  are  fully  known 
to  the  employee,  he  assumes  the  risk  if  he  continues  in  the  service. 
It  is  a  fundamental  principle  in  this  branch  of  jurisprudence,  that 
one  who  voluntarily  incurs  a  known  and  immediate  danger  is  guilty 
of  contributory  negligence,  and  we  are  unable  to  perceive  why  a 
promise  should  relieve  the  party  injured  through  his  own  contribu- 
tory fault.  If  the  danger  is  not  great  and  constant,  then  such  a 
promise  may  well  be  deemed  to  relieve  him ;  but  where  it  is  great 
and  immediate,  and  is  of  such  a  nature  that  a  prudent  man  would 
not  voluntarily  incur  it,  a  promise  does  not  nullify  or  excuse  the 
contributory  negligence.  Even  if  there  be  a  promise  by  the  em- 
ployer, the  employee  must  not  subject  himself  to  a  great  and  evident 
danger,  since  this  he  cannot  do  without  participating  in  the  em- 
ployer's fault.  The  community  have  an  interest  in  such  questions, 
and  that  interest  requires  that  all  persons  should  use  ordinary  care 
to  protect  themselves  from  known  and  certain  danger.  A  man  v/ho 
brings  about  his  own  death  or  serious  bodily  injury  sins  against  the 
public  weal.  All  must  use  ordinary  care  to  avoid  known  and  im- 
mediate danger,  although  it  is  not  the  assumption  of  every  risk  that 
violates  this  rule.  When  the  line  of  danger,  direct  and  certain,  is 
reached,  there  the  citizen  must  stop,  and  he  cannot  pass  it,  even 
upon  the  faith  of  another's  promise,  if  to  pass  it  requires  a  hazard 
that  no  prudent  man  would  incur.  Proceeding  upon  a  somewhat 
different  line  of  reasoning,  other  courts  have  reached  the  same  con- 
clusion as  that  to  which  we  are  led.  Ford  v.  Fitchburg  R.  R.  Co., 
no  Mass.  240;  Crichton  v.  Keir,  supra;  Couch  v.  Steel,  3  E.  &  B. 
402.  The  general  principle  which  rules  here  is  strongly  illustrated 
by  the  cases  which  hold  that  a  passenger  cannot  recover  for  an  in- 
jury received  while  acting  in  obedience  to  the  directions  of  the  con- 
ductor in  whose  charge  he  is,  where  obedience  leads  to  a  known 
danger  which  a  prudent  man  would  not  voluntarily  incur.  Lake 
Shore,  etc.,  R.  W.  Co.  v.  Pinchin,  112  Ind.  592;  Cincinnati,  etc., 
R.  R.  Co.  V.  Carper,  112  Ind.  26.  If  the  rule  prevails  in  such  cases, 
much  stronger  is  the  reason  why  it  should  prevail  in  a  case  like  this, 
where  ordinary  care  is  required  of  employer  and  employee  alike, 
while,  in  the  class  of  cases  referred  to,  the  highest  degree  of  practi- 
cable care  is  required  of  the  carrier  and  only  ordinary  care  exacted 
of  the  passenger. 

It  is  probably  true  that  the  promise  of  the  employer,  when  relied 


emt3lov 


in  the 
jjpellee  \ 
was  sc 
--led  lli.-  : 
here  w, 
.■ry. 


Judgment 


c  unco; 

....   Jecision 

hether  there 

g  him  f     " 

he   appt;. 

'=rs.      vVe  .ui--: 
•;o  make  cui  a 
varsaw  v.  Dunlap, 
•ong,  112  Ind    Tt",', 
'.'.  Co,  V.  Mo! 
Dunn,  38  1 
'ec.  329). 
Where,  as  i 
our  duty  to 

ony  is  ' 

■^re  is  n. 

■cide  the  legal  ei: 


'!  errur. 

'  the  record,  a:. _., 

here  could  be  no  recovery. 

■spends  upon  the  question 

-  the  appellee,  exonerate 


■icinnati 


iry  find  the 

'%  and  tliat  1- 

Iter  of  law; 

r  of  law  that  there 

I    no    c;i?r-    wlir'rr-    n 


( 

T- 

iV>  J  •  ,     ■ 
SOI  ! 

tmuance  in  the  se; 
nil  di^tdv 

53  ^Ii<:l^' 
ion  is,  that  ir  '  ■ 
immediate  dan: 
to  the  employ 
It  is  a  fundan 
one  who  voIuij 
of  contribi  ' 
promise  ?^ 
tory  f 


richton  v 


and  asi 
/ee  enti 
n  to  hii 
■tc,  K. 
♦"o  fdo' 


pore  OTIS 


)rdinary  ca 


are  led.     1- 


V 

reacueu,  : 
upon  the 
that  no  pruut: 
different  line  a 
elusion  as  that  to 
no  Mass.  240;  Cr 
402,    The  general 
by  the  cases  which 
i!iry  received  while 

•  in  whose  c 

r  which  a  pi 
Siioie,  etc.,  R.  W.  G ' 
R.  R.  Co.  V.  Carper,  i : 
vuch  stronger  is  the  r 
where  ordinary  care  i:,  .v.^..;.  ., 
while,  in  the  class  of  cases  referrer 
cable  care  is  required  c"  '         — ■ 
of  the  passenis^er. 

'  "      :  i.!e  thjA,  ; 


stop,   rinc 
iii'^e,  if  to  ]. 


.v  II  h  r,  I 


^nld 


■     U 'U- 

)d  im- 

■  ■■  ve, 

:  nd 
,11 


risk  if  he  <: 

rUic  It-inch  -•. 

irnmed.. 

.-'.le  un.-'  ' 

v\'   vvny   a 

Mred  thr 

,  contribu- 

ou  such  a 

•t  is  great 

would 

_;^U     .:,     ^c     .! 

.r-  the 

.ven  if  there  be 

'1- 

ot  subject  himse^ 

■* 

5t  do  without  p. 

have  an  inl; 

.  :3Uon-, 

■  V  care 

11  who 

1st  the 

;)d  im- 

>  /..k  th-t 

:  certain. 

-s  it,  evc!) 

a  hazard 

somewhat 

same  con- 

R.  R.  C 

3  E.  &  1;.. 

illustrated 

^  .  I  for  an  in 

ns  of  the  co: 

•  a ~ known 

:ur.     Lake 

anati,  et:., 

■  such  cases, 

1  case  like  th;>, 

:>11  iVlVf''       'I  i' 


hcii  rei! 


I 


PREMISES APPLIANCES ASSUMPTION    OF    RISK.  663 

on  by  the  employee,  will  rebut  a  presumption  of  contributory  negli- 
gence in  cases  where  the  danger  is  not  great  and  immediate,  but 
this  presumption  yields  whenever  it  appears  that  the  employee  vol- 
untarily incurs  a  known  and  immediate  danger  of  so  grave  a  charac- 
ter that  it  would  deter  a  reasonably  prudent  man  from  incurring  it. 

In  the  case  before  us  the  testimony  convincingly  shows  that  the 
appellee  knew  the  danger  he  encountered,  and  it  shows,  also,  that 
it  was  so  great  and  immediate  that  a  prudent  man  would  not  have 
assumed  the  risk  it  created.  It  results  that  even  if  it  were  conceded 
that  there  was  a  promise,  and  a  reliance  on  it,  there  could  be  no 
recovery. 

Reluctant  as  we  are  to  set  aside  a  verdict  which  has  passed  the 
scrutiny  of  a  learned  trial  court,  we  cannot  do  otherwise  in  this 
instance. 

Judgment  reversed. 

Filed  December  27,  1887. 

On  petition  for  rehearing. 

Elliott,  J. — In  a  very  forcible  and  able  brief,  counsel  for  the  ap- 
pellee contend  that  we  departed  from  the  established  rule  and 
weighed  the  evidence.     In  this  counsel  are  in  error. 

We  took  the  evidence  as  we  found  it  in  the  record,  and  decided, 
on  the  uncontradicted  evidence,  and  there  could  be  no  recovery. 
The  decision  of  the  case,  in  the  main,  depends  upon  the  question 
whether  there  was  a  promise,  relied  upon  by  the  appellee,  exonerat- 
ing him  from  the  consequences  of  his  negligence  in  remaining  in 
the  appellant's  service  after  he  acquired  full  knowledge  of  its 
dangers.  We  have  held  in  many  cases  that  where  the  evidence 
fails  to  make  out  a  case  the  judgment  will  be  reversed.  City  of 
Warsaw  v.  Dunlap,  112  Ind,  576;  Cincinnati,  etc.,  R.  W.  Co.  v. 
Long,  112  Ind.  166;  Riley  v.  Boyer,  j6  Ind.  152 ;  Pittsburgh,  etc.,  R. 
W.  Co.  V.  Morton,  61  Ind.  539;  Roe  v.  Cronkhite,  55  Ind.  183;  Ray 
V.  Dunn,  38  Ind.  230;  Crossley  v.  O'Brien,  24  Ind.  325  (87  Am. 
Dec.  329). 

Where,  as  here,  there  is  only  one  witness  upon  a  pivotal  point,  it 
is  our  duty  to  apply  the  law  to  his  testimony,  and  if,  under  the  law, 
the  testimony  is  not  sufficient  to  sustain  a  recovery,  so  adjudge. 
Where  there  is  no  conflict  of  testimony  the  court  must  necessarily 
decide  the  legal  effect  of  the  testimony  in  the  record.  In  doing  this 
there  is  no  departure  from  the  long-settled  rule  to  which  counsel 
refer. 

The  question  of  negligence  is  never  one  exclusively  of  fact.  The 
jury  find  the  facts,  but  if  from  the  facts  one  inference  only  can  be 
drawn,  and  that  is  that  there  was  negligence,  it  must  be  so  adjudged 
as  matter  of  law ;  or,  conversely,  if  it  can  be  clearly  affirmed  as  mat- 
ter of  law  that  there  was  no  negligence,  the  court  must  so  declare. 
In  no  case  where  negligence  is  the  issue  does  the  court  entirely 


664  DUTIES    OF    PRINCIPAL    TO    AGENT. 

abdicate  its  power,  for  as  to  the  law  it  must  always  rule,  although, 
in  some  instances,  the  jury  ultimately  decide  whether  there  is,  or 
is  not,  negligence;  but  in  every  case  the  court  must  declare  the  law. 

In  ruling  that  there  is  no  negligence  the  court  does  not  rule  upon 
a  question  of  fact.  Judge  Holmes  says:  "Where  a  judge  rules  that 
there  is  no  evidence  of  negligence,  he  does  something  more  than 
is  embraced  in  an  ordinary  ruling  that  there  is  no  evidence  of  a 
fact.  He  rules  that  the  acts  or  omissions  proved  or  in  question  do  not 
constitute  a  ground  of  legal  liability,  and  in  this  way  the  law  is 
gradually  enriching  itself  from  daily  life,  as  it  should."  Holmes 
Common  Law,  120. 

This  principle  applies  here,  for  we  rule,  not  that  there  is  no  evi- 
dence of  a  fact,  but  that  the  facts  proved  do  not  create  a  legal  lia- 
bility. It  has  been  very  often  decided  by  our  own  and  by  other 
courts  that,  where  the  facts  are  undisputed  and  unequivocal,  the 
court  must  apply  the  law  to  them.  Wabash,  etc.,  R.  W.  Co.  v. 
Locke,  112  Ind.  404,  and  cases  cited;  Pittsburgh,  etc.,  R.  R.  Co.  v. 
Spencer,  98  Ind.  186,  and  cases  cited ;  Counsell  v.  Hall,  5  New 
Eng.  Rep.  462,  n. 

The  doctrine  that  the  welfare  of  society  forbids  a  man  from 
thrusting  himself  into  immediate  and  certain  danger  without  press- 
ing necessity,  remounts  to  the  case  of  Hales  v.  Petit,  i  Plowden  253, 
a  case  made  famous  because  of  its  having  suggested,  as  many  sup- 
pose, to  Shakespeare,  the  grave-digger's  scene  in  Hamlet.  Although 
the  reasoning  of  that  case  is  quaint  and  fanciful,  still  the  principle 
asserted  is  a  wise  one,  and  has  long  formed  part  of  our  juris- 
prudence. 

We  did  not  assert  in  our  former  opinion  that  an  employee,  who 
takes  a  risk  that  imperils  his  safety,  cannot  maintain  an  action;  but 
we  did  decide  that  if  he,  knowingly  and  deliberately,  assumes  a  risk 
that  will  lead  him  into  immediate  and  certain  danger,  he  cannot 
recover,  although  his  employer  had  promised  to  remedy  the  defect. 
The  authorities  we  cited  sustain  this  principle,  and  we  applied  it 
to  the  uncontradicted  evidence.  Where,  as  here,  there  is  only  one 
witness  to  a  material  fact,  we  must  act  upon  his  testimony,  and 
in  applying  a  principle  to  it  we  do  not  weigh  evidence.  Cincinnati, 
etc.,  R.  R.  Co.  V.  Long,  112  Ind.  166;  Palmer  v.  Chicago,  etc.,  R.  R. 
Co.,  112  Ind.  250. 

It  may  be  that  on  another  trial  the  evidence  may  be  such  as  to 
take  the  case  out  of  both  the  rules  here  stated,  for  it  may  well  be 
that  additional  evidence  will  explain  the  testimony  given  by  Mr. 
Watson,  or  prove  circumstances  giving  it  a  different  meaning  and 
effect ;  but  as  the  record  presents  the  case  to  us,  we  find  by  applying 
the  law  to  the  evidence  that  the  verdict  is  not  supported. 

Petition  overruled. 


court  ol  c- 
facturing  <. 
been  sustained  !' 
the  company's  ; 
machinerv  to  u. 

The 
been  <■ 
jured  ' 
on  a  ir. 

a  circular  - 
«.  "bunk" — '' 
pail,  such 

^^  out  ir,' 
Tivnati 

>i  all  the  n;cii  dnd 
uty  to  manage  and 
control  the  ivv.  was  kept  in  good  ord-: 

rind  conditi- ■'■' 

On  the 
wlio  had  fni    -  ',  ■•, 

to  go  to  work  t: 

the  jointer 
ui  bad  con 
.saying  in  reieii  .l 
■)c   something  u  j' 
rew  staves — get  '. 
vvill  take  it  upstav 
:nced  jointing,  ;■ 
.>unk,  his  hand  wa- 
H.s  stated  in  hi*  i-ei' 
'  had  he:! 

10  had  f.  ■■■  r 

a  to  keep  on  wo: . 
"t    the  court  of  l   • 

ence  of  the  c 
.1.11  to  the  jury,  l:i'. 
c  consideration  of  tl- > 
■r  the  defendanr- 
.V,"  and  that  M. 
ing  dangerous  macliint-r^ 


11  i." 


pRiMCir. 


al>dic;!ie  its  power,  f 
in  &ome  ii;>!r;iir.-s  ■ 
is  not, 

In  rijitji\i^  ;urtL  tiii 
a  question  of  fact. 
there  is  no  evident' 
is  embraced  in  an 
t;:ct.   He  rules  i' 
constitute  a  gr 
gradually  enric^ 
Common  Law,  ... 

This  principle  apr 
dence  of  a  f 
bility.     H-  !' 
courts 
court  u 
Locke,  112 
Spencer.  oF 
Eue.  R 


law  it  T^ 
■lately  ti 
.'.se  the  c 
u,^ence  th' 

s  says : 
ice,  he  ( 

'Sf  that 


the  law. 


tnan 
'^f  a 


:1S  pi  OvC»i  t.j( 

r.nd  in  th- 


;   we  rule,  not  that  there  is  no  evi- 

's  proved  do  not  create  a  legal  lia- 

lecided  by  our  own  and  by  other 

■   and  unequivocal,  the 

.;  1.  etc,  R.  W.  Co.  V. 

leu;  Piitsbi  .  R.  R.  Co.  v. 


<I:    ( 


yji.      :3_n_i 


■  iate  and  certain 

^0  of  Hales  v 

c  lirivine  SI' 


^Tu!     ;   New 


^ut  press- 


as  ■; 


air  juri.- 


•pinion  that  an  employer 


::'•■.:  -.  :;  i\-- 

ij,  cannot  r.^ 

-  rtion,  ,; 

we  did  dec^' 

•  ly  and  delil'^ 

les  a  risl 

that  will  1; 

recover,  all! 

.  ',-. 

iie  authorities  wt 

>  princij 

'i(    iVT-ontradictc 

.   jicre,  as  '' 

\  mater. 

nust  act  up- 

.ii  c^i'i'';  '"ii  ^  princip^r 

lo  not  weigh 

.   ;mv,>,,..„     . 

etc.,  R.  R.  Co.  V.  Long, 

166:  Palmer 

,  -tc,  R.  F 

Co.,  112  Ind.  250. 

It  may  be  that  on  p' 

nch  aK  1" 

take  the  case  out  0* 

that  additional  evii; 

Watson,  or  prove  c 

meaning  and 

effect ;  but  as  the  re    ..  ,  . 

^  .^    ■--.•., 

•     ]:\'     TlUluivP' 

the  law  to  the  evidence  that  the 

verdi' 

Pctiti-n  overruled. 

PREMISES APPLIANCES ASSUMPTION    OF    RISK.  665 

MANUFACTURING  COMPANY  v.  MORRISSEY. 
1883.     Supreme  Court  Commission  of  Ohio.     40  Ohio  St.  148. 

Error  to  the  district  court  of  Lucas  county. 

Patrick  Morrissey,  defendant  in  error,  commenced  an  action  in  the 
court  of  common  pleas  of  Lucas  county  against  the  Union  Manu- 
facturing Company,  plaintiff  in  error,  for  damages  alleged  to  have 
been  sustained  by  him  while  in  the  service  of  the  company,  through 
the  company's  negligence  in  furnishing  him  hazardous  and  unsafe 
machinery  to  use,  and  placing  over  him  an  incompetent  foreman. 

The  company  was,  in  the  year  1878,  and  had  for  some  time  before, 
been  engaged  in  manufacturing  wooden  pails.  Alorrissey  was  in- 
jured by  having  a  portion  of  his  hand  cut  off  while  he  was  at  work 
on  a  machine  known  as  a  "pail-lathe,"  which  was  composed  in  part 
of  a  circular  saw,  a  jointer,  and  a  bed  or  carriage  commonly  called 
a  "bunk" — all  used  in  the  several  operations  necessary  to  make  a 
pail,  such  as  cutting  off  the  staves  to  equal  lengths,  joining  them, 
turning  out  the  inside,  turning  off  the  outside,  etc. 

One  Tivnan  was  the  foreman  of  the  room  in  which  Morrissey  was 
at  work  when  injured,  and  as  such  had  charge  of  all  the  men  and 
machinery  in  the  room.  It  was  the  foreman's  duty  to  manage  and 
control  the  men,  and  see  that  the  machinery  was  kept  in  good  order 
and  condition. 

On  the  morning  of  the  injury,  the  foreman  directed  Morrissey, 
who  had  for  sixteen  months  been  at  work  under  him  on  the  lathe, 
to  go  to  work  on  the  part  known  as  the  jointer.  He  had  worked  on 
the  jointer  before  this  time  for  about  six  months.  The  jointer  was 
in  bad  condition,  and  Morrissey  called  the  foreman's  attention  to  it, 
saying  in  reference  to  what  is  known  as  the  bunk,  "There  ought  to 
be  something  done  with  that."  The  foreman  replied.  "You  joint 
a  few  staves — get  out  some  staves  to  keep  these  fellows  going — and 
I  will  take  it  upstairs  and  get  it  fixed."  Morrissey  thereupon  com- 
menced jointing,  and  shortly  after,  by  reason  of  the  defect  in  the 
bunk,  his  hand  was  forced  against  the  saw  teeth,  and  he  was  hurt 
as  stated  in  his  petition.  About  two  weeks  before  he  was  injured, 
he  had  heard  the  foreman  say  to  one  of  the  workmen,  named  Fuller, 
who  had  called  his  attention  to  the  bunk's  need  of  repair,  "I  want 
you  to  keep  on  working  until  we  get  a  lay-off  and  I  will  get  it  fixed." 

In  the  court  of  common  pleas,  the  testimony  tending  to  show  the 
negligence  of  the  company,  and  all  the  facts  in  the  case  having  been 
given  to  the  jur}-,  the  court  upon  the  motion  of  the  defendant  took 
the  consideration  of  the  case  from  the  jury,  and  directed  a  verdict 
for  the  defendant — charging,  that  it  was  "a  question  entirely  of 
law,"  and  that  Morrissey  "had  been  guilty  of  gross  negligence  in 
using  dangerous  machinery  when  it  was  out  of  order,    *    *    *    ^1. 


666  DUTIES    OF    PRINCIPAL   TO   AGENT. 

though,"  as  the  court  further  charged,  "there  was  no  dispute  but 
that  the  defendant  was  guilty  of  gross  neghgence." 

Morrissey  by  his  counsel  excepted ;  filed  a  motion  for  a  new  trial ; 
and  upon  judgment  for  defendant  being  rendered,  took  bill  of  ex- 
ceptions embodying  in  it  all  the  testimony  and  charge  of  the  court ; 
and  filed  his  petition  in  error  in  the  district  court,  where  the  judg- 
ment of  the  court  of  common  pleas  was  reversed,  and  the  cause  re- 
manded for  a  new  trial. 

The  case  is  here  on  petition  to  reverse  the  judgment  of  the 
district  court. 

DiCKMAN,  J. — There  is  no  evidence  that  there  was  any  careless- 
ness on  the  part  of  Morrissey  the  defendant  in  error,  in  his  mode 
of  operating  the  machine  through  whose  defects  he  was  injured. 
On  the  morning  of  his  injury — from  the  time  of  his  commencing 
Vv'ork,  up  to  and  at  the  time  he  was  injured — he  ran  the  machine 
much  slower  than  usual,  on  account  of  its  bad  condition,  and  in  order 
to  avoid  being  hurt.  The  contributory  negligence  imputed  to  him, 
consisted  in  his  knowing  that  the  part  called  the  "jointer"  was  out  of 
repair,  and  could  not  be  safely  used,  and  in  thereafter  remaining  in 
the  service  of  the  company  and  continuing  to  operate  that  portion  of 
the  machine.  For  that  reason,  the  court  below  took  tlie  case  from 
the  jury,  and  directed  a  verdict  for  the  company.  The  question  of 
contributory  negligence  on  the  part  of  the  plaintiff  is  generally  a 
mixed  question  of  law  and  fact ;  but,  it  is  only  when  the  facts  are  be- 
yond dispute  and  admit  of  no  rational  inference  but  that  of  neg- 
ligence, that  the  court  has  the  right  to  apply  the  law  without  the  aid 
of  a  jury.  The  defendant  in  error,  while  in  the  employment  of  the 
company,  was  under  the  supervision  and  direction  of  a  foreman, 
v/hose  duty  it  was  to  manage  and  control  the  workmen,  and  see 
that  the  machinery  was  kept  in  good  order  and  repair.  As  soon 
as  Morrissey  discovered  that  the  part  of  the  machine  upon  which  he 
was  working  was  in  a  condition  unsuitable  for  use,  he  complained 
of  the  same  to  the  foreman,  who  promised  him  that  the  defects  in  the 
machine  would  be  remedied,  and  ordered  him  to  continue  at  his 
v/ork.  He  thereupon  began  work  at  once  at  the  jointer,  and  in  a 
short  time  thereafter,  was  injured  through  its  defects,  before  any 
steps  were  taken  to  remedy  them.  As  a  fact  which  was  taken  to  be 
beyond  dispute,  the  court  charged  the  jury  that  the  company  was 
guilty  of  gross  negligence.  But,  the  court,  in  view  of  another  fact 
beyond  dispute,  viz. :  that  Morrissey  worked  at  the  machine  with 
knowledge  of  its  defective  condition,  evidently  considered  it  a  settled 
principle,  that  such  knowledge  was,  as  matter  of  law,  conclusive  of 
contributory  negligence  on  his  part ;  and  ignored  the  importance  of 
other  material  questions  of  fact  not  beyond  dispute,  which  might 
tend  to  qualify  or  limit  the  legal  effect  of  such  knowledge,  and  which 
should  have  been  submitted  by  the  court  to  the  consideration  of  the 
jury.     After  the  promise  made  to  Morrissey  himself  by  the  foreman 


i 


the  same  tL 


ing  suv 
the  CGI, 

the  machine.  . 
the  company,  i,'i 
put  the  jointer 
to  such  an  extt 
use  it,  even  afl 
tions  Oi 
I'l-irv.   ■■ 


the  same,  . 
that  of  neg 
the  fact  tb: 
and  rti  ' 
The- 


ant  element  in 
there  ': 
drcun  .~ 

-ume  the  ai^- 
i:i3t  rendered  ; 
the  part  of  ot. 
by  a  promise  to  .  -.  i 
of  law,  an   answe- 
omitted  to 


ne  cannot  be 


quire   their 
' '^*  of  authiM  ,, , 

■3  Vi  Worthingtoi 
ii  the    '    ' 
and  tilt 
n  they 
d  the  Vie 
be  depri 


-c  rc- 


On  !'■ 

A"," 


i^'-ii    will 

-frOlT!     1 


the  sam: 
LcJiine  vvv^iu 
)rk.     He  the 
rime  the 
ere  tak 


aid   CO.:' 

crood  '. 
■X  of  tiic 


!,  a,ii(i  ■- 

As  so 

which  i 

omplaitit 

ects  in  t' 


itlii-T  rnaieriql 

•::•    '  :Ufy  L;r  iuuii.  . 

'  :  been  subm: 

r  the  promise  in 


.  issey  w 
■  ,.,.don.  ''V'' 

t^e  was, 

tiis  part : 
fact  nv 


-V  the  forcii;.. 


PREMISES APPLIANCES — ASSUMPTION    OF   RISK.  667 

that  the  jointer  should  be  "fixed,"  and  after  hearing-  the  foreman 
promise  the  same  thing  two  weeks  before  to  another  workman,  it  be- 
came a  material  question  of  fact  for  the  jury  to  determine,  under 
proper  instructions  from  the  court,  whether  Morrissey  after  acquir- 
ing such  knowledge,  continued  such  a  length  of  time  in  the  service  of 
the  company,  as  to  constitute  a  waiver  on  his  part  of  the  defects  in 
the  machine.  Whether  he  afterwards  remained  in  the  employment  of 
the  company,  because  of  his  reliance  on  the  promise  of  the  foreman  to 
put  the  jointer  in  repair;  and  whether  the  jointer  was  out  of  repair 
to  such  an  extent,  that  a  man  of  ordinary  care  would  not  continue  to 
use  it,  even  after  a  promise  to  put  it  in  good  repair — were  also  ques- 
tions of  fact,  which  should  have  been  left  to  the  determination  of  the 
jury,  under  proper  instructions  from  the  court.  But  it  could  not, 
in  order  to  take  the  case  from  the  jury,  be  said  with  reason,  that 
knowledge  alone  of  defects  in  the  machinery  and  continuing  to  use 
the  same,  as  matter  of  law,  admitted  of  no  rational  inference  but 
that  of  negligence,  when  such  knowledge  is  taken  in  connection  with 
the  fact  that  Morrissey  complained  to  the  foreman  of  the  defects, 
and  received  from  him  a  promise  that  they  should  be  remedied. 

The  court  below  applied  the  doctrine  in  all  its  latitude,  without  any 
qualification  in  the  light  of  other  facts  and  circumstances  of  the 
case,  that  if  one  knowingly  and  voluntarily  exposes  himself  to 
danger  by  using  dangerous  machinery,  he  cannot  be  said  to  be 
without  any  fault  or  negligence  on  his  part,  and  therefore  cannot 
recover  for  injuries  suffered  by  him  in  consequence.  That  a  knowl- 
edge of  the  unsafe  condition  of  the  machinery  used,  is  a  most  import- 
ant element  in  detennining  the  question  of  contributory  negligence, 
there  can  be  no  doubt.  Alone  and  unexplained,  it  may,  under  some 
circumstances,  be  conclusive  that  the  injured  party  was  willing  to 
assume  the  attendant  risks,  and  waive  all  objections  to  the  defects 
that  rendered  the  machinery  hazardous.  But,  such  knowledge,  on 
the  part  of  one  induced  to  remain  in  the  service  of  an  employer 
by  a  promise  to  remove  the  cause  of  danger,  is  not  of  itself,  in  point 
of  law,  an  answer  sufficient  to  exonerate  a  defendant,  who  has 
omitted  to  supply  machinery  that  is  safe  and  proper.  Relying  upon 
such  inducement  held  out  by  their  employers,  the  most  prudent 
workmen  will  often  take  risks,  not  merely  on  account  of  their  own 
necessities,  but  in  consideration  of  their  employers  whose  interests 
require  their  continued  service.  Under  such  circumstances,  the 
weight  of  authority  is  in  accord  with  the  language  of  Willes,  ].,  in 
Holmes  v.  Worthington,  2  Foster  &  Finlason  533. 

"If  the  defendants  knew  of  the  defect  and  undertook  to  repair 
it,  and  the  plaintiff  went  on  working,  relying  on  their  repairing  it, 
then  they  may  be  liable.  If  the  plaintiff  complained  of  the  defect, 
and  the  defendants  promised  that  it  should  be  remedied,  he  is  not 
to  be  deprived  of  his  remedy,  merely  because,  relying  on  their  prom- 
ise, he  remained  in  their  employment." 


668  DUTIES    OF    PRINCIPAL   TO   AGENT. 

To  the  same  effect  was  the  judgment  in  Clarke  v.  Hohnes,  7  Hurl- 
stone  &  Norman  937,  in  the  exchequer  chamber  on  appeal  from  the 
decision  of  the  court  of  exchequer.  In  that  case,  the  plaintiff  was 
employed  by  the  defendant  to  oil  dangerous  machinery.  At  the  time 
the  plaintiff  entered  upon  the  service,  the  machinery  was  fenced,  but 
the  fencing  became  broken  by  accident.  The  plaintiff  complained  of 
the  dangerous  state  of  the  machinery,  and  the  defendant  promised 
him  that  the  fencing  should  be  restored.  The  plaintiff,  without  any 
negligence  on  his  part,  was  severely  injured  in  consequence  of  the 
machinery  remaining  unfenced.  It  was  held,  in  the  exchequer  cham- 
ber— affirming  the  judgment  of  the  court  of  exchequer — that  the  de- 
fendant was  liable  for  the  injury.  Chief  Justice  Cockburn,  in  deliver- 
ing his  opinion,  very  forcibly  draws  a  distinction  between  the  case  of 
an  employee  who  knowingly  enters  into  an  engagement  to  work  on 
defective  machinery,  and  that  of  him,  who  in  the  course  of  his 
employment  discovers  its  defective  condition,  but  is  induced  to 
remain  in  the  same  service  by  the  master  promising  him  to  remedy 
the  defect.  If  the  master  in  such  a  case  fails  to  fulfill  his  obligation, 
the  employee  cannot  be  held  to  have  waived  his  right  to  hold  the 
master  responsible. 

The  rule  recognized  in  the  English  courts,  has  been  followed  by 
the  supreme  court  of  the  United  States  in  the  instructive  case, 
Hough  V.  Railroad  Co.,  100  U.  S.  213.  In  that  case,  the  engineer 
had  a  knowledge  of  the  defect  in  the  engine,  and  complained  thereof 
to  both  the  master  mechanic  and  the  foreman  of  the  roundhouse. 
They  promised  that  it  should  be  promptly  remedied.  But,  the  court 
below  seemed  to  attach  no  consequence  to  the  engineer's  complaint, 
or  the  promise  made  to  him.  Under  the  instructions  given,  if  the 
engineer  worked  the  engine  with  knowledge  of  its  defect,  the  jury 
were  to  find  for  the  company,  although  he  may  have  been  justified 
in  relying  upon  the  promise  made  to  him  that  the  defect  should  be 
remedied.  The  instruction  in  that  branch  of  the  case,  involving  the 
question  of  contributory  negligence  on  the  part  of  the  engineer,  was 
considered  by  the  supreme  court  misleading  and  erroneous.  Justice 
Harlan  cites  approvingly  the  language  of  Mr.  Cooley,  in  his  work 
on  Torts.  "If  the  servant  having  a  right  to  abandon  the  service 
because  it  is  dangerous,  refrains  from  doing  so  in  consequence  of 
assurances  that  the  danger  shall  be  removed,  the  duty  to  remove 
the  danger  is  manifest  and  imperative,  and  the  master  is  not  in  the 
exercise  of  ordinary  care  unless  or  until  he  makes  his  assurances 
good.  Moreover,  the  assurances  remove  all  ground  for  the  argu- 
ment that  the  servant  by  continuing  the  employment  engages  to 
assume  all  risks." 

In  view  of  the  whole  current  of  authority,  and  in  the  light  of 
reason,  we  are  led  to  the  conclusion,  that  under  the  circumstances  of 
the  case  at  bar,  Morrissey's  knowledge  of  the  defective  state  of  the 
machine  which  he  was  using  and  continued  to  use,  was  not,  as  matter 


.  concl- 
'   -     ledge,  he 
into  consideration  by  t; 
PtT/-!  circumstances,  in 
ence  contributed 
I  he  judgni'    ■ 
Judgment  ar 


Sucii 


1880 


Appeal  fro: 

Action  to  vi 
resulted  from  the  ' 
and  safe  coverin" 
was  employed, 
by  such  saw,  an" 
and  partly  over  tJv.: 
to  pass  in  the 
complaint  will 
ant  appeals  from 
complaint. 

Cole,  C.  J.— W'l 
.'perating  the  t^ 
the  unsafe  con 
was  not  coverv 
the  narrow  pa 
ening  and  loos . 
'-cnowledge.  T)' 

v  to  it,  if  unsate  anrl 
.y  a  person  of  cor^  ''■ 
risk  incident  to  t! 
'  ^ider  such  circun. 

■  the  injury  he  ^ 

i'e  machinery  an-' 

Accord:   Roux  v.  i 
.    Co.,  112  Wis.   i>!t 
Some  of 
>ncf.  or 

'he  futurtr.       w  >:•  ih.-,  ,   I 
11  Gunning  System  v.   1 
iiiiv..  >,-,  iv  •.,,■  a  defec; 
vant  is  ■ 
n,  with  V      _ 
stands  as  fuiiy,  as  the  master 


;*  m  not  pro 
e-mill,  in  wh-.^.. 
ife  and  proper  ]» 
to  project  over  ..- 
hich  the  plaintiff  was  ' 
-s.     Other  allegations  ci  ti; 
the  opinion.     The  defervl 
a  general  demurrer 

red  upon 
U  owneu  n 
-.ill.   the   farr 


668 

DUTIES 

OF  PRl 

r  ;  the  same  effect 

was 

the  judgment  in  Clai 

-s.  7  Hur. 

rman 

937, 

in 

th'e  exchequer  'J 

";  an  the 

the  court 

of 

^Kchenuer.     In 

if  was 

employed  by  the 

dcf 

i  danger. 

e  time 

the  plaintiff  entered 

.vice,  tht 

d,  but 

the  fencing  became 

cident.     The  pla; 

led  of 

the  dangerous  - 

.,, 

linery,  and  the  <{■ 

mised 

him  that  the  ft 

-•".stored.    The  pla' 

It  any 

negligence  on  1 

.rely  injured  in 

of  the 

machinery  rem; 

It  was  held,  in  {]■, 

■ham- 

ber — afifirn  •  • 

he  court  of  < 

iie  de- 

fendant  \v:. 

Chief  Justs* 

icliver- 

ing  his  opii 

\vs  a  distinction  uetween 

me  case  of 

an  emi^l  IV 

'jrs  into  an  eng^igement 

to  work  on 

defects 

of  him,  who  in  the  course  of  his 

employ/..; .' 

(elective  condition,   biu   is 

induced   to 

reni:ni!  in  V- 

•y  the  master  promising  him 

L  to  remedy 

iV. 

'i  a  case  fails  to  fnltill  his 

olnigation. 

»}•■■- 

have  waived  his  nght 

to  hold  the 

iiglish  courts,  has  been  foi'  -wed  I 

;  ed   States  in   the   instructive   ca^' 

S.  213,    In  that  case,  the  engine; 

I  the  engine,  and  complained  there. 


and  the  forem- 

'  e  roundhouse. 

'  be  promptly  re: 

]->vt.  the  court 

be  tow 

'^ce  to  tl: 

complain' 

or  the  j 

■r  the  ir. 

en,  if  tb. 

engineer  v 

n  knowledge 

1.  the  jur 

were  to  find,    .  • 

i though  he  r 

n.  justifies 

in  relying  upon 

■  le  to  him  tli, 

should  d 

remedied.    The 

,  ^_  1. .i_   _ 

living  th' 

t|Ue-tion  of  con:-. 

ineer,  va- 

considered  by  the  -.• 

.  niisleao. 

-.     Justi'-' 

Harlan  cites  appro- 

■guage  ■■ 

■  his  woii 

oii  Torts.     "If  the 

ng  a  ri:' 

."11  the  serv'ic; 

because  it  is  dange;i    . 

:  .  1..^  from  1 

on sequence  oi 

assurances  that  the  danger 

shall  be  rer 

[ty  to  remo\t' 

the  d.-inger  is  manifest  -     ■ 

•^-■' '-•'V-.   ' 

•   not  in  t];- 

cxcr;  ise  of  ordinary  c;^ 

ssurancc- 

.L;i:odi.     Moreover,  the  ; 

!-r  the  arg 

nicai  that  the  servant 

at  engages  '. 

assume  all  risks." 

In  view  of  the  whole  current  (;f  rr.t'inr' 

ai  the  light  ' 

reason,  we  are  led  tothe  conclu- 

cumstances 

the  case  at  bar,  Morrissey's 

knou  •.. 

.ve  state  of  tl 

irj.'rchinc-  wlV'ch  he  was  using 

and  coni 

vvas  not,  as  matte 

JH 


PREMISES — APPLIANCES — ASSUMPTION    OF   RISK.  669 

of  law,  conclusive  of  contributory  negligence  on  his  part.  Such 
knowledge,  how^ever,  w^as  a  prominent  fact  in  the  case,  to  be  taken 
into  consideration  by  the  jury  in  connection  with  all  the  other  facts 
and  circumstances,  in  determining  the  question,  whether  his  own 
negligence  contributed  to  the  accident  by  which  he  was  injured. 

The  judgment  of  the  district  court  must  be  affirmed. 

Judgment  accordingly.^ 


STEPHENSON  v.  DUNCAN. 
1889.     Supreme  Court  of  Wisconsin.     73  Wis.  404. 

Appeal  from  the  circuit  court  for  Taylor  county. 

Action  to  recover  damages  for  personal  injuries  alleged  to  have 
resulted  from  the  defendant's  negligence  in  not  providing  a  proper 
and  safe  covering  for  a  saw  in  his  shingle-mill,  in  which  the  plaintiff 
was  employed,  and  in  not  providing  a  safe  and  proper  passage-way 
by  such  saw,  and  in  allowing  the  saw  to  project  over  its  frame 
and  partly  over  the  passage-way  along  which  the  plaintiff'  was  obliged 
to  pass  in  the  performance  of  his  duties.  Other  allegations  of  the 
complaint  will  sufficiently  appear  from  the  opinion.  The  defend- 
ant appeals  from  an  order  overruling  a  general  demurrer  to  the 
complaint. 

Cole,  C.  J. — When  the  plaintiff  entered  upon  his  employment  of 
operating  the  machinery  and  shingle-mill  owned  by  the  defendant, 
the  unsafe  condition  of  such  shingle-mill,  the  fact  that  the  saw 
was  not  covered,  and  that  it  projected  over  its  frame  partly  across 
the  narrow  passage-way  along  which  he  was  obliged  to  go  in  tight- 
ening and  loosening  the  belt,  were  all  matters  presumably  wathin  his 
knowledge.  The  condition  of  the  passage-way  and  the  relation  of  the 
saw  to  it,  if  unsafe  and  dangerous,  would  be  seen  and  comprehended 
by  a  person  of  common  intelligence,  and  the  plaintiff  assumed  the 
risk  incident  to  the  service  when  he  undertook  the  employment. 
Under  such  circumstances,  the  plaintiff  could  not  maintain  the  action 
for  the  injury  he  sustained  because  the  defendant  failed  to  provide 
safe  machinery  and  did  not  cover  the  saw  with  a  substantial  cover- 

^  Accord:  Roux  v.  Blodgett  Lumber  Co.,  85  Mich.  519;  Yerkes  v.  North  Pac. 
Ry.  Co.,  112  Wis.  184. 

"Some  of  the  courts  have  drawn  a  distinction  between  a  promise  to  repair 
at  once,  or  within  a  reasonable  time,  and  a  promise  to  repair  at  a  stated  time 
in  the  future."    Werner,  J.,  in  Rice  v.  Eureka  Paper  Co.,  174  N.  Y.  385,  393. 

In  Gunning  System  v.  Lapointe,  212  111.  274,  it  was  said  that  the  master's 
promise  to  repair  a  defect  does  not  suspend  the  servant's  assumption  of  the 
risk  where  the  servant  is  engaged  in  ordinary  labor  or  the  tools  used  are  of 
simple  construction,  with  which  the  servant  is  as  familiar,  and  which  he  un- 
derstands as  fully,  as  the  master. 


6/0  DUTIES    OF    PRINCIPAL   TO   AGENT. 

ing  nor  provide  a  safe  passage-way  in  place  of  the  defective  one  ;  for, 
as  we  have  said,  he  must  be  held  to  have  assumed  the  risk  by  accept- 
ing and  remaining  in  the  service  with  knowledge  of  the  existing  de- 
fects in  the  machinery.  The  rule  of  law  upon  this  subject  has  been 
laid  down  by  this  court  in  the  following  language:  "It  is  well  settled 
that  the  master  may  conduct  his  business  in  his  own  way,  although 
another  method  might  be  less  hazardous ;  and  the  servant  takes  the 
risk  of  the  more  hazardous  method  as  well,  if  he  knows  the  danger 
attending  the  business  in  the  manner  in  which  it  is  conducted. 
Hence,  of  a  servant,  knowing  the  hazards  of  his  employment  as  the 
business  is  conducted,  is  injured  while  employed  in  such  business, 
he  cannot  maintain  an  action  against  the  master  for  such  injury 
merely  because  he  may  be  able  to  show  that  there  was  a  safer  mode 
in  which  the  business  might  have  been  conducted,  and  that  had  it 
been  conducted  in  that  mode  he  v/ould  not  have  been  injured." 
Naylor  v.  C.  &  N.  W.  R.  Co.,  53  Wis.  661 ;  Hobbs  v.  Stauer,  62  Wis. 
108.  These  decisions  are  all  we  deem  it  necessary  to  cite  in  reply 
to  the  argument  that,  as  between  master  and  servant,  it  is  the  duty  of 
the  former  to  provide  suitable  means  and  appliances  to  enable  the 
servant  to  do  his  work  as  safely  as  the  hazards  incident  to  the  em- 
ployment will  permit.  This  is  undoubtedly  the  general  rule,  but  it 
cannot  apply  here,  for  the  reason  that  the  plaintiff  must  be  deemed 
to  have  entered  upon  the  employment  with  full  knowledge  of  the 
existing  defects ;  therefore  he  assumed  the  risk.  The  fact  that  the 
saw  was  not  covered,  that  the  passage-way  was  narrow^  and  danger- 
ous, would  be  seen  at  a  glance. 

But  probably  the  liability  of  the  defendant  was  not  intended  to  be 
rested  upon  the  ground  that  the  machinery  used  was  not  originally 
in  a  safe  condition,  for  it  is  further  alleged  in  the  complaint  that 
about  ten  days  prior  to^  the  accident  the  plaintiff  informed  the  de- 
fendant of  the  defective  and  dangerous  condition  of  the  shingle-mill, 
saw,  and  passage-way,  and  requested  the  defendant  to  repair  the 
same,  and  to  provide  a  suitable  and  safe  passage-way,  and  to  cover 
the  saw,  notifying  the  defendant,  at  the  same  time,  that  he  would 
not  remain  and  work  the  shingle-mill  unless  the  same  were  put  in 
a  safe  condition  at  once ;  that  the  defendant  then  promised  and 
agreed  to  repair  the  mill,  cover  the  saw,  and  put  the  passage-way  in  a 
safe  condition,  and  by  these  promises  induced  the  plaintiff'  to  remain 
in  his  employment  about  the  shingle-mill  until  he  was  hurt.  If  the 
complaint  had  stopped  here,  it  might  be  held  tO'  state  a  cause  of 
action,  for  it  would  then  state  a  cause  of  action  within  the  rule  laid 
down  and  approved  by  courts  of  the  highest  authority,  which  hold 
that  where  the  servant,  having  the  right  to  abandon  the  service  be- 
cause it  is  dangerous,  refrains  from  doing  so  in  consequence  of  as- 
surances by  the  master  that  the  danger  shall  be  removed,  such 
assurances  remove  all  ground  for  holding  that  the  servant  by  con- 
tinuing in  the  employment  engages  to  assume  the  risk.     This  doc- 


PK^Mih;^ 


.•.\V.       it 

vp  the 


in  a  verv 


cietecis 

1  lie        i  Ccl  L        ».|  • 

all  the  ciraims' 
vvant  waived  h:: 
-  the  work,  an'! 
Lihty.     "This  :: 
to  the  jury,  nl 
no  doubt  that, 
defect,  the  seri 
such  a  period 
allowed  for  its  • 
within  any  per 
tion  that  the  proii; 
(4th  ed.),  §  215. 
ploynient  after 
way  safe,  and    ... 
saw  while  going  t; 
•^-ntter  of  law,  v. 
:ded  all  rca- 


lur  an  injury  ;. : 
all  re^'^^on^ihl?  p 


make  t! 
ping  an . 
V  to  tighten 


•0.-5  10  liii:  n. 

^'  upon  the  <' 
:ntift  did  continr. 
^  defendant  <    •• 
nied  to  have 
'lie  maclv 
The  ill 
'  — obviui 
. ,  and  \\;, 
'dition  the  niacin 
informed  him  c*    ., 
iired,  but  neglected  : 
tection  of  the  p'  '■ 
mtiff  continued  ( 
:ch  he  might  rr- 
-Tiise  and  put  tlu'  1 
e  hold  the  complaint 


670 


Dl. 


ing-  nor  provide  a  sa  ■ 

.  one ;  fo'- 

;.s  w;-  In,:-  said,  he  ; 

.v>  nave   ■ 

•y  accept 

';  .;  :v\     ;l  !iaining  vt 

with  kn- 

-ririor  de- 

fects  111  the  machine 

of  law 

been 

laid  down  by  thi?  c 

.nvin.s;'  i. 

•ttled 

v'-ar  the  master 

ough 

uMther  method 

-.  the 

ri-1.  of  the  morv 

;d  as  wi- 

attending  the  1 

■lanncr  iu    \>-'..:    u 

Hence,  of  a  ser 

hazards  of  his  empl 

business  is  ■- 

while  employed  in 

he  cannot  ' 

jainst  the  master  fo: 

merely  ■ 

1  show  that  there  was  a 

.-i.ticr  rno(; 

in  whi' 

>  e  been  conducted    and 

'ii.it  had 

bc-n   c- 

.^  would  not  hr 

injured. 

■^';-.  66I;H<<w- 

..i\  62  Wi 

n  it  ne.                   cite  in  rep^ 

1 


or  and  s                  '     '      '   ; 
and  a| 
Civ  &c  the  hazardb  ir.i.idcnt  u-  liic  en, 
F  undoubtedly  the  general  ru!c.  but 
1  that  the  plaintiff  must  be  deem; 
: v-^nt  with  full  knowledge  of  tl. 
d  the  risk.     The  fact  that  tb 
„....   „  ..    „,,,., .,,[  dangei 


res:. 

in  a  sate  c 

about  ten  d. 

fendant  of  i. 

saw,  and  pas.^.  •. 

same,  and  to  pi' 

the  saw,  notifying  : 

not  remain  and  wgr  • 

a  safe  condition   at 

agreed  to  repair  the 

safe  condition,  and  V 

in  his  employment  a.^-.  "' 

complaint  had  stopped 

action,  for  it  would  /thei 

down  and  approved  by 

that  where  the  servant,  iiaving-  the  i 

cause  it  is  dangerous,  refrains  from 

iurances  by   the  master  that  the  d 

assurances  remove  all  ground  fo^^  h 

tinning  in  the  employment  engfj 


.iUi  was 
.  v :  r;,.ry  used  ^' 
her  alleged  in  the 
•nt  the  plai miff  in 
;:s  condit 


at  ll;e 
mill  UT 


ses  indi 


)la 


'■led  to  I 
jriginali 
!.  iiiplaint  th.' 
■     •.-.  d  the  dv 
ngle-mii 
.  '  repair  tb 
and  to  cov( 
.hat  he  woul 
were  put  i' 
i^ised  an 
,e-way  in  . 
intiti'  to  remaJ' 
'^  hurt.     Tt  < 
le  a  car 
the  rule  i?. 
.  which  hoi 
•'ne  servic" 
xjuence  1 
emoved,   sur 
•vaTit  by  con- 
This  do<: 


PREMISES — APPLIANCES ASSUMPTION    OF   RISK.  67! 

trine  is  laid  down  in  Hough  v.  Railway  Co.,  100  U.  S.  213,  in  a  very 
elaborate  and  learned  opinion  by  Mr.  Justice  Harlan,  where  the  law 
is  fully  discussed,  and  many  authorities  cited.  The  doctrine  cer- 
tainly rests  upon  rational  grounds,  and  is  amply  supported  by  writers 
upon  the  law  of  negligence,  as  reference  tO'  the  above  opinion  will 
show.  It  follows  that  it  w^as  the  clear  duty  of  the  defendant  to  re- 
move the  danger  or  repair  the  defect  in  the  passageway,  and  negli- 
gence will  not  be  imputed  to  the  plaintiff  if  he  continued  his  em- 
ployment for  a  reasonable  time  to  allow  the  defendant  to  remove  the 
defects. 

The  real  question  in  each  case  is  whether  the  master,  under 
all  the  circumstances,  had  a  right  to  believe  and  did  believe  that  the 
servant  waived  his  objection  to  the  defect  in  the  materials  provided 
for  the  work,  and  assumed  the  risk,  exempting  the  master  from  lia- 
bility. "This  is  a  question  of  fact,  not  of  law ;  and  it  must  be  left 
to  the  jury,  at  least  if  not  entirely  free  from  doubt.  There  can  be 
no  doubt  that,  where  a  master  has  expressly  promised  to  repair  a 
defect,  the  servant  can  recover  for  an  injury  caused  thereby  within 
such  a  period  of  time  after  the  promise  as  would  be  reasonably 
allowed  for  its  performance,  and,  as  we  think,  for  an  injury  suffered 
within  any  period  which  would  not  preclude  all  reasonable  expecta- 
tion that  the  promise  might  be  kept."  i  Shearm.  &  Redf.  on  Neg. 
(4th  ed.),  §  215.  It  appears  that  the  plaintiff  remained  in  his  em- 
ployment after  the  defendant  promised  to  make  the  saw  and  passage- 
way safe,  and  was  then  injured  by  slipping  and  falling  upon  the 
saw  while  going  through  the  passage-way  to  tighten  the  belt.  As  a 
matter  of  law,  we  could  not  say  this  period  was  so  long  that  it  pre- 
cluded all  reasonable  expectation  that  the  defendant  would  make 
good  his  promise.  The  defendant  would  have  a  reasonable  time  to 
remove  the  defects,  and  the  plaintiff  should  not  be  held  to  waive  his 
objections  to  the  machinery  or  assume  any  risk  in  respect  to  it  while 
relying  upon  the  defendant's  promise  to  make  it  safe.  But  if  the 
plaintiff  did  continue  his  employment  for  an  unreasonable  time  after 
the  defendant  could  have  removed  the  defects,  he  would  then  be 
deemed  to  have  waived  his  objections  and  assumed  the  risk  of  oper- 
ating the  machinery  in  the  unsafe  a.nd  dangerous  condition  in  which 
it  was.  The  difficulty  with  the  complaint  is  that  it  is  alleged  that 
the  plaintiff — obviously  meaning  the  defendant — had  ample  time  and 
opportunity,  and  was  abundantly  able,  to  repair  and  put  in  a  safe 
condition  the  machinery  and  apparatus  between  the  time  the  plain- 
tiff informed  him  of  its  defects,  and  the  time  when  the  plaintiff  was 
injured,  but  neglected  and  failed  to  do  so,  as  was  his  duty,  for  the 
protection  of  the  plaintiff.  This  allegation  fairly  implies  that  the 
plaintiff  continued  his  employment  beyond  the  period  of  time  within 
which  he  might  reasonably  expect  the  defendant  would  keep  his 
promise  and  put  the  machinery  in  proper  condition.  We  must  there- 
fore hold  the  complaint  defective,  because  it  does  not  allege  or  show 


672  DUTIES    OF    PRINCIPAL   TO   AGENT. 

that  the  plaintiff  was  injured  within  such  a  time  after  the  defendant's 
promise  as  it  would  be  reasonable  to  allow  for  its  performance  under 
the  circumstances,  for  if  the  plaintiff  continued  in  the  employment 
longer  than  there  were  reasonable  grounds  for  expecting  the  de- 
fendant would  remove  the  defects,  and  was  then  injured,  he  wowld 
assume  the  risk  of  the  dangerous  condition  of  the  machinery  as 
when  he  entered  upon  the  service. 

We  hold  the  complaint  fatally  defective  because  it  does  not  appear 
that  the  plaintiff'  was  injured  while  he  had  a  reasonable  expectation 
that  the  defendant  would  keep  his  promise.  The  demurrer  to  the 
complaint  should  have  been  sustained  for  this  reason. 

By  the  Court. — The  order  of  the  circuit  court  is  reversed,  and  the 
cause  remanded  for  further  proceedings  according  to  law.'- 

^  "His  continuance  in  the  service  for  an  unreasonable  length  of  time  after 
such  promise  is  a  waiver  of  the  defects  agreed  to  be  remedied  by  his  em- 
ployer." Somerville,  J.,  in  Eureka  Co.  v.  IBass,  81  Ala.  200,  214.  To  same 
effect  see  Dowd  v.  Erie  R.  R.  Co.,  70  N.  J.  L.  451. 

The  liability  of  a  master  for  injuries  to  his  servant  has  been  changed  by 
statute  in  some  states.  See  the  following  Employers'  Liability  Acts:  England: 
43  and  44  Vict.,  Ch.  42;  Indiana:  Burns'  Rev.  St.  1901,  §§  7083-7087;  Massa- 
chusetts: Rev.  Laws  1902,  Ch.  106,  §§  71-79;  New  York:  Laws  1902,  Ch.  600; 
United  States :  1908,  35  Stat.  L.  65.  Ch.  149,  §  i.  See  article,  "Statutory 
Changes  in  Employers'  Liability,"  by  M.  C.  Hobbs,  in  2  Harv.  Law.  Rev.  212. 

See  English  Workmen's  Compensation  Act,  6  Edw.  7,  Ch.  58.  In  18  Green 
Bag  216-217  there  are  several  articles  discussing  the  Workmen's  Compensa- 
tion Acts  of  various  European  countries. 


Section  1. — Agent'. 
RECHTSC I  ' 


1870. 
Wagner,  J. 

"■  $2,600,  \vl'' 
Defendant, 
before  the  pl< 
'hat  defendan: 
rent  and  ps 
promised  and   .  ^r     < 
diligently  atten"  t  •  his 
id  prudently  (  a;-    lOi 
.y  moneys  w'liivl;  lie  ;  . 
-.d  collector ;  :  m.1   tha* 
'd  promise,  did'  icce!\ 
"d  agent,  and  did  p.n 
;>erform  all  the  terms  ;; 
be  performed,  but  thn; 
ent  and  employ ip 
large  sum  of  nc 
:-.  defendant.  wL 
.oployment  of  de- 
!>ney,  the  proper' 
gleet  of  the  plain  ■.  . 
The  plaintiff,  in  his 
lions  of  the  contract  aiu. 
t  avers  that  he  has  \r< 
nies  that  the  sui! 
the  defendant  h 
e  money  was,  without  an} 
43 — Reinhard  r«-. 


•m  on  a  certificat 
.  "  '    hs  to  be  due. 

■.;;ic'    iaim,and  states  that 
le  plaintiff,  in  consideration 

its  employ  r^     ■  ti-  ••.  r  -.y-^f^ 
housand  doll  n. 


Din  lE.T,    •   I--    PRINCIJ 


that  the  plaintiff  was  injur 

tfd  within  suci  i 

efendant's 

promise  as  it  would  be  r"^ 

-or,  ,  Me.  to  alio ', 

iuce  under 

the  circumstances,  for 

iintiff  c( 

Mployment 

longer  than  there 

ible  grr 

;  file  de- 

fenciant  would  reii' 

Ls,  and 

\vovild 

assume  the  risk  <• 

.)us  conditio 

-•ry  as 

when  he  entered  -- 

ce. 

We  hold  the 

defective  because  it  ■ 

j.r 

that  the  plaint i : 

i'<  lie  hail  a  reasona 

.u-um 

that  the  defen 

promise.     The  d 

to  the 

complaint  "^h--- 

.   iv-d  for  this  reason. 

By  the  ( 

i.he  circuit  court  is  reversed,  and  the 

cause  rem;/ 

proceedings  according-  to 

law 

^"Hi: 

a  unreasonab': 

c  atier 

such  I'T' 

agreed  to  be 

lis  em- 

pl--'- 

■  ■    V.  Bass.  8i  Ai..u   . "V 

f.  -■  i 

,      lo  same 

a  unreasonab': 

c  atier 

agreed  to  be 

lis  em- 

■  ■    V.  Bass.  8i  Ai..u   . "V 

-c,      Lo  same 

N.  J.  L.  451- 

■f>c  (,-,  hi?  servant  '  - 

,  ,';     rh-jno-,-.-!     hy 

'jyers'  Li ! 

St.  igor 

x>,  sS  71-79;  New  York 

h.  600 ; 

T.    6q.   Ch.   149,   §    I.    .^ 

atutory 

C  Hobbs,  in  J 

■cv.  212. 

Act,  6  Edw.  ■ . 

'  Green 

rttcle^-  discussing  the  \V'-iku 

eu  «   i>.ompen-,.. 

imtries. 

CHAPTER  XII. 

DUTIES  AND  LIABILITIES   OF  AGENT  TO  PRINCIPAL. 


Section  1. — Agent's  Duty  to  Obey  Instructions. 

RECHTSCHERD  v.  ACCOMMODATION  BANK  OF  ST. 

LOUIS. 

1870.     Supreme  Court  of  ^Missouri.     47  ]\Io.  181. 

Wagner,  J. — Plaintiff  brought  his  action  on  a  certificate  of  deposit 
for  $2,600,  which  defendant,  by  its  answer,  admits  to  be  due. 

Defendant,  in  its  answer,  sets  up  a  counter-claim,  and  states  that 
before  the  plaintiff's  action  accrued,  the  plaintiff,  in  consideration 
that  defendant  would  receive  him  into  its  employ  as  collector  and 
agent  and  pay  him  a  salary  of  one  thousand  dollars  per  annum, 
promised  and  agreed  with  defendant  that  he  would  carefully  and 
diligently  attend  to  his  duties  as  such  collector  and  agent,  and  safely 
and  prudently  care  for  and  deliver  over  and  account  for  to  defendant 
any  moneys  which  he  might  receive  into  his  custody  as  such  agent 
and  collector ;  and  that  defendant,  relying  upon  such  engagement 
and  promise,  did  receive  the  plaintiff'  into  its  employ  as  collector 
and  agent,  and  did  pay  him  his  said  salary,  and  did  in  all  things 
perform  all  the  terms  and  conditions  of  said  contract  on  its  part  to 
be  performed,  but  that  defendant,  not  regarding  his  said  engage- 
ment and  employment,  failed  and  refused  to  account  for  and  deliver 
a  large  sum  of  money,  to  wit:  the  sum  of  $2,983.06,  the  money  of 
the  defendant,  which  came  into  his  care  and  custody  while  in  the 
employment  of  defendant  as  such  collector  and  agent,  which  sum  of 
money,  the  property  of  the  defendant,  was,  through  the  fault  and 
neglect  of  the  plaintiff,  wholly  lost  to  the  defendant. 

The  plaintiff,  in  his  replication,  does  not  deny  the  terms  and  con- 
ditions of  the  contract  and  employment  as  set  forth  in  the  answer, 
but  avers  that  he  has  in  all  things  complied  with  the  same.  He 
denies  that  the  sum  alleged  in  the  answer,  or  any  other  sum,  was  lost 
to  the  defendant  through  his  fault  or  negligence,  and  alleges  that 
the  money  was,  without  any  neglect  or  fault  on  his  part,  taken  from 
43 — Reinhard  Cases.  673 


674  DUTIES    OF    AGENT   TO    PRINCIPAL. 

him  by  thieves,  robbers,  and  other  persons,  whilst  he  had  the  same  in 
his  possession  and  was  taking  extraordinary  care  of  the  same  for 
and  as  the  agent  of  the  defendant,  and  therefore  he  was  not  Hable 
for  the  same.  The  cause  was  tried  at  special  term  before  a  jury, 
who,  after  hearing  the  evidence  and  being  instructed  by  the  court, 
rendered  a  verdict  for  the  plaintiff.  Upon  appeal  to  general  term  the 
judgment  was  reversed  and  the  cause  remanded  for  a  new  trial,  and 
from  this  judgment  the  case  is  brought  here  by  writ  of  error. 

If  the  money  was  taken  from  the  plaintiff  by  thieves  or  robbers 
when  he  was  using  ordinary  care  and  guilty  of  no  negligence,  he 
was  clearly  not  liable.  But  this  was  a  question  of  fact  for  the  jury 
to  determine  upon  proper  instructions.  There  was  something  said 
in  the  argument  (and  it  is  alluded  to  in  the  record)  about  incon- 
sistent instructions  being  given  to  the  plaintiff  in  the  transaction  of 
his  business,  by  the  cashier  and  the  note  clerk,  two  of  the  defendant's 
officers.  Whether  the  note  clerk  had  any  authority  to  give  the 
orders,  or  it  was  the  duty  of  the  plaintiff  to  obey,  was  not  very 
clearly  developed  in  the  evidence,  and  should  be  rendered  more  ap- 
parent. 

The  first  instruction  given  for  the  plaintiff  is  on  the  subject  of  con- 
tributory negligence,  and,  although  not  objectionable  as  a  proposi- 
tion of  law,  is  hardly  justified  by  the  evidence.  Of  its  own  motion, 
the  court  instructed  the  jury  that  the  plaintiff,  as  collector  for  the 
defendant,  was  bound  to  use  such  care  as  men  of  ordinary  prudence 
would  have  used  under  like  circumstances ;  if,  therefore,  the  plaintiff 
used  such  care  in  doing  the  business  of  the  defendant,  he  was  not 
guilty  of  negligence,  unless  he  disregarded  reasonable  instructions 
given  to  him  by  defendant  or  its  authorized  agents. 

The  following  instruction  asked  by  the  defendant  was  refused : 
"Although  the  jury  may  believe  from  the  evidence  that  the  moneys 
in  controversy  in  the  counter-claim  were  taken  from  the  plaintiff'  by 
thieves  or  robbers,  yet  the  plaintiff  is  not  excused  from  liability 
to  the  bank  on  that  account,  if  the  jury  find  that  such  loss  by  theft 
or  robbery  was  occasioned  by  the  failure  of  the  plaintiff  to  obey  the 
instructions  given  to  him  by  the  said,  Accommodation  Bank  or  any 
of  its  officers  thereto  authorized." 

It  will  be  perceived  that  the  view  of  the  court  was,  that  in  order 
to  render  the  plaintiff  responsible  for  disregarding  the  instructions 
of  the  principal,  those  instructions  must  be  reasonable ;  whilst  the 
instruction  asked  by  the  defendant  asserted  the  absolute  right  of  the 
principal  to  give  whatever  instructions  it  saw  proper,  and  the  duty  of 
the  agent  to  obey.  We  suppose  that  there  is  no  doubt  about  the 
established  rule  at  law,  that  an  agent  is  bound  to  execute  the  orders 
of  his  principal  whenever,  for  a  valuable  consideration,  he  has  under- 
taken to  perform  them,  tmless  prevented  by  some  unavoidable  ac- 
cident, without  any  default  on  his  part,  or  unless  the  instructions  re- 
quire him  to  do  an  illegal  or  immoral  act ;  and  it  is  no  defense  that  he 


I  to  act  for  I  visible 

>  occasioned  cding 

ar  disreg-aVding  ins-  Story- 

Agency,  §  192:  Hn  -  '>- 

St.  394.) 

It  is  the  dat\      '  : 

principal,  and  i . 
tion,  he  will  nr ; 
be  disregarded   ; 
emergencies,   or    ii 
require  a  breach  '  'i 
are,  however,  excc),' 
•"  what  has  beer 

•ight  within 
liistruction  giv«, 
and  that  the  in. 
given. 

Tudoiix-nt  affirnv 


'JHNSON  Ei  A  TRAL  RAILRO.M) 

iS^-       CoL^x/  ■  >'■    >>T    ^.^ 

>ri'jiAL  irom  the  n  was  i 

ety-one  bales  oi  'r>w,  Tr, 

delivered  by  the  pL., 

!e  transported  to    A' 

pie's  Line  of  st.  k.     The  tow 

^ lie  defendant  on  ^^<- -^    i- 

'lie  property  at  . 

pie's  Line,  who 
,  e  prohibited  by  .•: 

ription.     The  t- 

Corning,"  a  fr 

any  and  New  Yf. 

his  description. 
of  December,  and 

r  that  fall,  that  ;,.. 

the  passage  to  New 

It  is  the  first  duty  of  an 
'rs'  Exp.  Co.,  104  Mass.  ; 


Drnii^  I' 


thieves,  robbers,  and 
,    .^session  and  was  tak 
'!id  as  the  agent  of  the  de'-' 
ior  the  same.     Thr-  - 

whii.  after  heariric 
'  cd  a  verdict 
cnt  was  re^'' 
ii'om  this  judg: 
If  the  mone} 
when  he  was  using  or 
was  clearly  not  liable 
to  determine  upon 
in  the  arg 
sistent  in^' 
his  bn 
officer 


'>iiier  perso;  he  same  in 

;ng  extraor'  •  same  for 

.  j'.dant,  and  not  liable 

tried  at  si<--.  re  a  jury, 

and  being  (he  court, 

iT.    Upor  rm  the 

.^ause  rt  il,  and 

'Ought  here  by  writ 

the  plaintiff  by  thic  -ibbers 

are  and  guilty  of  no  ce,  he 

was  a  question  of  fac.  .iie  jury 

ictions.     There  was  son>cthing  said 

iiiuded  to  in  the  record)  al>>ut  incon- 

,  en  to  the  plaintiff,  in  the  tran.>action  of 

lie  note  clerk,  two  of  the  defendant's 

rk  had  any   authority  to  give  the 

of  the  plaintiff  to  obey,  was  not  vt 


ii:e  i.o;. 
"Although 
in  controvi 
thieves  or 
to  the  bank  on  tha 
or  robbery  was  oc( 
instructions  given  ; 
of  its  officers  there 

It  will  be  percei' 


;:f  juHUii  1  il  IS  (.111  iiif  Miljjix'L  ui  c 
.igh  not  objectionaV)1e  as  a  propo: 
.'.■  the  evidence.    '  -n  motion, 

at  the  plaintiff,  or  for  the 

li  care  as  men  of  ordinary  prudence 
imstances ;  if,  therefore,  th€  plaintiff 
■  iness  of  the  defendant,  he  was  not 
disregarded  rea--^"  •'^^"  instructions 
authorized  ageni 

:.ed  by  the  ■'   "  was  refuseu 

from  the  ev.  it  the  money: 

vere  taken  i,  .laintiff  by 

:V  is  not  e.K>  .ii   liability 

.  i)  ihe  jury  find  that  such  loss  by  theft 
n-  the  failure  of  the  plaintiff  to  obey  the 
.-  tlie  said  Accommodation  Bank  or  any 
ized." 


he  view  of  the 


to  render  the  plaintit:  i -..^^onsible  for  di 
of  the  principal,  thosp  '^'^tructions  mu 
instruction  asked  b  cndant  asseri 

principal  to  give  wl. .  .structions  ii 

the  agent  to  obey.     We  suppose  that  t 
established  rule  at  law,  that  an  agen+  •- 
of  his  principal  whenever,  for  a  valu. 
taken  to  perform  them,  unless  -, 
oident,  without  any  default  on  h 

'.im  to  do  an  illegal  or  immoiai  act 


that  in  ordc^ 


about  tho 
the  order-^ 
has  undcr- 
idable  a 
actions  r 
icfense  that  i 


OBEDIENCE    TO    INSTRUCTIONS.  6/5 

intended  to  act  for  the  benefit  of  his  principal.  He  is  still  responsible 
for  loss  occasioned  by  any  violation  of  his  duties,  either  in  exceeding 
or  disregarding  instructions.  (Switzer  v.  Connet,  ii  Mo.  88;  Story 
Agency,  §  192;  Hays  v.  Stone,  7  Hill  128;  Wilson  v.  Wilson,  26  Pa. 
St.  394.) 

It  is  the  duty  of  the  agent  to  adhere  faithfully  to  the  orders  of  the 
principal,  and  if  a  loss  occurs  in  consequence  of  his  voluntary  devia- 
tion, he  will  not  be  held  faultless.  It  is  true  that  instructions  may 
be  disregarded  in  cases  of  extreme  necessity  arising  from  unforseen 
emergencies,  or  if  performance  becomes  impossible,  or  if  they 
require  a  breach  of  law  or  morals.  (Story  Agency,  §  194.)  These 
are,  however,  exceptional  cases.  But  the  general  rule  is  as  indicated 
in  what  has  been  said  above,  and  the  case  as  made  in  the  record  is  not 
brought  within  any  of  the  exceptions.  I  think,  therefore,  that  the 
instruction  given  by  the  court  of  its  own  motion  was  objectionable, 
and  that  the  instructions  asked  by  the  defendant  should  have  been 
given. 

Judgment  affirmed.    The  other  judges  concur.^ 


JOHNSON  ET  AL.  V.  NEW  YORK  CENTRAL  RAILROAD 

COMPANY. 

1865.     Court  of  Appeals  of  New  York.     33  N.  Y,  610. 

Appeal  from  the  supreme  court.  The  action  was  for  the  value  of 
ninety-one  bales  of  tow,  addressed  to  E.  Ludlow,  Jr.,  at  New  York, 
and  delivered  by  the  plaintifif's  firm  to  the  defendant  at  Little  Falls, 
to  be  transported  to  Albany,  and  to  be  forwarded  thence  by  the 
People's  Line  of  steamboats  to  New  York.  The  tow  was  received 
by  the  defendant  on  the  29th  of  November,  1854,  and  on  the  arrival 
of  the  property  at  Albany,  it  was  oftered  to  the  proprietors  of  the 
People's  Line,  who  declined  to  receive  it,  on  the  ground  that  they 
were  prohibited  by  act  of  congress  from  transporting  freight  of  that 
description.  The  tow  was  then  shipped  by  the  defendant  on  the 
"E.  Corning,"  a  freight  barge  in  good  condition,  running  in  the 
Albany  and  New  York  line,  which  was  accustomed  to  carry  freight 
of  this  description.  The  barge  left  for  New  York  on  the  ist  or 
2d  of  December,  and  w^as  the  last  boat  in  the  line  that  went  down  the 
river  that  fall,  that  being  the  close  of  navigation  for  the  season. 
On  the  passage  to  New  York,  the  tow  was  lost  with  the  barge. 

^  "It  is  the  first  duty  of  an  agent,  whose  authority  is  limited,  to  adhere  faith- 
fully to  his  instructions,  in  all  cases  in  which  they  can  be  properly  applied. 
If  he  exceeds  or  violates  or  neglects  them,  he  is  responsible  for  all  losses, 
which  are  the  natural  consequence  of  his  act."  Colt,  J.,  in  Whitney  v.  Mer- 
chants' Exp.  Co.,  104  Mass.  152,  154. 


676  DUTIES    OF   AGENT    TO    PRINCIPAL. 

The  cause  was  first  tried  before  Judge  Pratt,  and  the  plaintiff  re- 
covered;  but  the  judgment  was  reversed  at  the  general  term,  which 
held  that  upon  the  foregoing  facts  that  the  defendant  was  not  liable 
for  the  loss. 

On  the  last  trial,  before  Judge  Hubbard,  further  evidence  was 
given,  tending  to  support  the  allegation  made  in  the  complaint,  and 
denied  in  the  answer,  that  the  defendant  was  directed  when  the 
property  was  received  to  forward  it  only  by  the  People's  Line  of 
steamboats. 

On  the  first  trial  the  plaintiff  rested  his  case,  in  this  respect,  on 
the  note  made  by  the  defendant  at  the  foot  of  the  entry  in  the  way- 
bill books,  "via  People's  Line ;"  but  on  the  last  trial  it  was  proved 
that  when  the  tow  was  taken  to  the  defendant,  the  plaintiff  asked 
Mr.  Priest,  the  freight  agent  of  the  company,  with  whom  the  con- 
tract was  made,  whether  the  company  could  forward  the  tow  in  ques- 
tion by  the  People's  Line,  who  replied  that  it  could,  but  it  would 
cost  more  than  it  would  to  send  it  by  tow  boats.  The  plaintiff  told 
him  that  it  was  so  late  in  the  season,  that  unless  the  defendant  could 
forward  it  by  the  People's  Line,  he  did  not  then  wish  to  send  it,  and 
that  he  did  not  care  about  the  extra  expense.  Priest  thereupon  re- 
ceived the  goods  to  be  forwarded  in  that  mode.  This  evidence  was 
imdisputed.  It  was  also  proved  that  there  was  daily  communication 
by  mail  and  telegraph  between  Albany  and  Little  Falls. 

The  plaintiff  claimed  that  under  these  circumstances,  the  forward- 
ing of  the  flax  by  a  tow  boat,  without  notice  to  the  owner,  was  a 
breach  of  duty,  and  that  the  defendant  assumed  the  risk  by  disre- 
garding the  instructions.  The  judge  held  otherwise,  and  granted  a 
nonsuit,  which  was  sustained  at  the  general  term. 

Porter,  J. — The  defendant  undertook  to  transport  the  flax  to 
Albany,  and  to  forward  it  thence  to  New  York  by  the  People's  Line 
of  steamboats.  On  the  refusal  of  that  line  to  receive  it,  the  defend- 
ant's obligation  as  a  carrier  ceased ;  and  if  it  incurred  any  further  lia- 
bility, it  was  in  the  character  of  agent  for  the  owner  of  the  property. 
In  the  absence  of  instructions  as  to  the  mode  of  transportation  from 
Albany,  it  owed  no  duty  to  the  plaintiff,  beyond  the  delivery  of  the 
property,  in  the  usual  course  of  business,  to  safe  and  responsible 
carriers  for  transmission  to  its  destination :  Brown  v.  Dennison,  2 
Wend.  593;  Van  Santvoord  v.  St.  John,  6  Hill  157.  But  when  the 
forwarding  agent  is  instructed  as  to  the  wishes  of  his  principal,  and 
elects  to  disregard  them,  he  is  guilty  of  a  plain  breach  of  duty. 
When  he  sends  goods  in  a  mode  prohibited  by  the  owner,  he  does  it 
at  his  own  risk,  and  incurs  the  liability  of  an  insurer :  Ackley  v.  Kel- 
logg, 8  Cow.  225. 

It  appears  in  the  present  case  that  the  contract  was  made  with  the 
freight  agent  of  the  defendant,  who  suggested  that  it  would  be 
better  to  forward  the  hemp  by  tow-boat  from  Albany ;  but  the  plain- 
tiff replied,  in  substance,  that  it  was  so  late  in  the  season  that  he 


send  il. 
;  ;  -.to  sho\ 

an  express  un 
to  New  York  lu. 
fendant  was  clear!; 
prietors  to  receive 
communicated  the 
tions,  or  it  slxn  '  ' 
the   hemp   for 
Walker,  9  Pa. 
Dec.  398)  ;  Fisi. 

There  is  a 
■  .:expected  err'' 
safety  of  tlie  pi 
arose.     TIt; 
owner  fron 
have  b'  ■ 
had  n(, 

than  to  liazarci 
of  navigation, 
instructions  of 
must  be  conte^ 
Contracts  69; 
logg,  8  Cow.  -' 

The  evidenct 
ch  of  d'. 
'US.    Th 
be  ordered,  wit' 

Judgment  if 

Brown  and  <  . 


with 

'  >d 

-  -le- 

pro- 

'-^ve 


)U 


e  iienip 

rather  :  ■ 

il,  at  the  close  01 

le  agent  is  to  ob ....  . . 

iie  departs  from  these,  1  • 
he  assumes:  i  Parsons  <. 
Story  43;  Ackley  v.  Kd 

e  iun/  to  find  that  there  >va= 
was  th  • 

v-w  trial 


1877.    Court 


HEN. 


\ppEAT.   from   juf; 
as  in  ar 
of  the  -  - 
w  "York,  which  affirri  • 
)n  a  verdict. 
This  action  was  for  t 
property  of  plaintir 
ier. 
J 'he  facts  appear  sufticic; 


676 


))\: 


0  cause  was  first  tried 
ed;  but  the  ^-  '  '        ' 
hat  upon  the 
iOi  me  loss. 

^')m  the  last  tn: 

'    tending  to  ^  1 

■-d  in  the  an- 
property  was  rec< 
steamboats. 

On  the  fir?' 
the  note  mad' 
bill  books,  "v 
that  whe^ 
Mr.  Prie- 
tract 


before  Judge  Pratt, 

--    -.  reverse''     '  ■''•■. 
cts  that 

Judge  Hu; 
le  allegation  in.' 
lie  defendant 
ard  it  only  ■ 


f  rested  his  case 
at  the  foot  of  l 

'  but  on  the  las*. 
1:0  the  defendant 

L  the  company, 
iipany  could  for\ 
:>  replied  that  it 
'1  it  by  tow  boat 

ason,  that  unlesr 
:,  he  did  not  ther- 

extra  expense. 
od  in  that  mode. 


plaintiff  re- 

^;ii.  which 

)t  liable 

ce  was 
nt,  and 


■Q  way- 
nrovf'd 


n  ques- 
laintifl  i 

'      nt    COli:': 

i  it,  and 
•pon  re- 
uce  was 


'  that  there  was  daiiv  cunanunical: 
\lbany  and  Little,  FhIIs. 
ler  these  circumstances,  tlie  forwa 
without  notice  to  the  owner,  waj,  a 
iefendant  assumed  the  risk  by  disre- 


11 

judge  held  ■   ' 
It  the  general 

d  granted  :; 

ir'ijKi'EK,    J  . 

undertook  to  1 

ihe  flax  to 

Albany,  and 

e  fo  New  York 

v-ople's  Line 

of  steamli 

■iiat  line  to  v< 

the  defe:   . 

ant's  oblig.it ■'.'ii  .. 

■  1 ,  and  if  it  inci 

further  iia- 

bility,  it  was  in  th^ 

agent  for  the  c 

lie  property. 

In  the  absence  of 

iS  to  the  mod 

Mbany,  it  owed  ^.v 

'  ]-)hir\^\ff.  W 

rty,  in  r 

,::-s  for  1' 

VV  end.  593  ;  Van  Sam  ■ 

St.  Johi 

.     But  when  n  -: 

■frv.-yx  -irding  agent  is  iii-.^.i  . 

......  as  tc.  Mv 

.  ids  principal,  an  I 

to  disregard  them, 

he  is  g 

'Un  breach  of  dui\. 

\'  ncn  he  sends  gr    ' 

mode  p' 

he  owner,  he  does  it 

at  his  own  risk,  ai 

the  liabv 

•irer :  Ackley  v.  K'.l- 

logg,  8  Cow.  225. 

Jt  appears  in  the  present 

case  tb-'                'rac 

t  v/as  made  with  vh-- 

!:t  agent  of  the  def' 

hat   it   Av 

■■  ft  r^vard  the  hem, 

>>• ;  but  tL   , 

substance, 

the  season  that  n.e 

OBEDIEN'CE   TO    INSTRUCTIONS.  677 

would  not  send  it,  unless  it  could  go  by  the  People's  Line.  This 
proof  tends  to  show  that  the  defendant  received  the  property  with 
an  express  understanding  that  the  hemp  was  not  to  be  forwarded 
to  New  York  unless  by  the  People's  Line.  If  this  was  so,  the  de- 
fendant was  clearly  liable.  On  the  refusal  of  the  steamboat  pro- 
prietors to  receive  the  property,  the  company  should  either  have 
communicated  the  fact  to  the  plaintiff,  and  awaited  further  instruc- 
tions, or  it  should  have  relieved  itself  from  liability,  by  depositing 
the  hemp  for  safe-keeping  in  a  suitable  warehouse :  Forsyth  v. 
Walker,  9  Pa.  St.  148;  Goold  v.  Chapin,  20  N.  Y.  259  (75  Am. 
Dec.  398)  ;  Fisk  v.  Newton,  i  Denio  451  (43  Am.  Dec.  649). 

There  is  a  class  of  cases  in  which  an  agent  is  justified  by  an 
unexpected  emergency  in  deviating  from  his  instructions,  where  the 
safety  of  the  property  requires  it.  In  this  instances  no  such  exigency 
arose.  The  only  inconvenience  which  would  have  resulted  to  the 
owner  from  compliance  by  the  carrier  with  his  known  wishes  would 
have  been  mere  delay  in  transmitting  the  hemp  to  market ;  and  he 
had  notified  the  company  that  he  would  rather  submit  to  this  delay 
than  to  hazard  the  tow-boat  transportation,  at  the  close  of  the  season 
of  navigation.  The  primary  duty  of  the  agent  is  to  observe  the 
instructions  of  his  principal,  and  when  he  departs  from  these,  he 
must  be  content  with  the  voluntary  risk  he  assumes :  i  Parsons  on 
Contracts  69 ;  Forrester  v.  Boardman,  i  Story  43 ;  Ackley  v.  Kel- 
logg, 8  Cow.  223. 

The  evidence  would  have  authorized  the  jury  to  find  that  there  was 
a  breach  of  duty  by  the  defendant,  and  the  nonsuit  was  therefore 
erroneous.  The  judgment  should  be  reversed,  and  a  new  trial  should 
be  ordered,  with  costs  to  abide  the  event. 

Judgment  reversed,  and  new  trial  awarded. 

Brown  and  Campbell,  JJ.,  dissented. 


LAVERTY  V.  SNETHEN. 
1877.     Court  of  Appeals  of  New  York.     68  N.  Y.  522. 

Appeal  from  judgment  of  the  general  term  of  the  court  of 
common  pleas  in  and  for  the  city  and  county  of  New  York,  affirming 
a  judgment  of  the  general  term  of  the  marine  court  of  the  city  of 
New  York,  which  affirmed  a  judgment  in  favor  of  defendant,  entered 
upon  a  verdict. 

This  action  was  for  the  alleged  conversion  of  a  promissory  note, 
the  property  of  plaintiff,  made  by  one  Holly,  payable  to  plaintiff's 
order. 

The  facts  appear  sufficiently  in  the  opinion. 


6/8  DUTIES   OF   AGENT   TO    PRINCIPAL. 

Church,  Ch.  J., — The  defendant  received  a  promissory  note  from 
the  plaintiff  made  by  a  third  person  and  endorsed  by  the  plaintiff, 
and  gave  a  receipt  therefor,  stating  that  it  was  received  for  negotia- 
tion, and  the  note  to  be  returned  the  next  day  or  the  avails  thereof. 
The  plaintiff  testified  in  substance  that  he  told  the  defendant  not  to 
let  the  note  go  out  of  his  reach  without  receiving  the  money.  The 
defendant,  after  negotiating  with  one  Foote  about  buying  the  note, 
delivered  the  note  to  him  under  the  promise  that  he  would  get  it 
discounted,  and  return  the  money  to  defendant,  and  he  took  away  the 
note  for  that  purpose.  Foote  did  procure  the  note  to  be  discounted, 
but  appropriated  the  avails  to  his  own  use. 

The  court  charged  that  if  the  jury  believed  the  evidence  of  the 
plaintiff  in  respect  to  instructing  the  defendant  not  to  part  with 
the  possession  of  the  note,  the  act  of  defendant  in  delivering  the 
note,  and  allowing  Foote  to  take  it  away,  was  a  conversion  in  law, 
and  the  plaintiff  was  entitled  to  recover.  The  exception  has  been 
criticised  as  applying  to  two  propositions,  one  of  which  was  unob- 
jectionable, and  therefore  not  available. 

Although  not  so  precise  as  is  desirable,  I  think  that  the  exception 
was  intended  to  apply  to  the  proposition  above  stated,  and  was 
sufficient. 

The  question  as  to  when  an  agent  is  liable  in  trover  for  conversion 
is  sometimes  difficult.  The  more  usual  liability  of  an  agent  to  the 
principal  is  an  action  of  assumpsit  or  what  was  formerly  termed  an 
action  on  the  case  for  neglect  or  misconduct,  but  there  are  cases 
when  trover  is  the  proper  remedy.  Conversion  is  defined  to  be  an 
unauthorized  assumption  and  exercise  of  the  right  of  ownership 
over  goods  belonging  to  another  to  the  exclusion  of  the  owner's 
rights.  A  constructive  conversion  takes  place  when  a  person  does 
such  acts  in  reference  to  the  goods  of  another  as  amount  in  law  to 
appropriation  of  the  property  to  himself.  Every  unauthorized  taking 
of  personal  property  and  all  intermeddling  with  it,  beyond  the  extent 
of  the  authority  conferred,  in  case  a  limited  authority  has  been  given, 
with  intent  so  to  apply  and  dispose  of  it  as  to  alter  its  condition  or 
interfere  with  the  owner's  dominion,  is  a  conversion.  Bouv.  Law 
Diet.,  title  Conversion. 

Savage,  Ch.  ].,  in  Spencer  v.  Blackman,  9  Wend.  167,  defines  it 
concisely  as  follows :  "A  conversion  seems  to  consist  in  any  tortious 
act  by  which  the  defendant  deprives  the  plaintiff  of  his  goods." 

In  this  case  the  plaintiff  placed  the  note  in  the  hands  of  the 
defendant  for  a  special  purpose  not  only,  but  with  restricted  author- 
ity (as  we  must  assume  from  the  verdict  of  the  jury),  not  to  part 
with  the  possession  of  the  note  without  receiving  the.  money.  The 
delivery  to  Foote  was  unauthorized  and  wrongful,  because  contrary 
to  the  express  directions  of  the  owner.  The  plaintiff  was  entitled  to 
the  absolute  dominion  over  this  property  as  owner.  He  had  the 
right  to  part  with  so  much  of  that  dominion  as  he  pleased.    He  did 


money 
^o  g-o  01 
-:  he  had 
jc  with  the  ]■ 
-    ference  and    : 
• c/erred  to,  a 
on  elusion,  b} 
•^yeds  V.  Ha\. 
.gainst  the  m. 
■ontrary  to  tho 
"hem  by  sendi';. 
"If  one  man 
ito  the  b;: 
:on."    Tlr    . 
-  good  \c\-- 
lOugh  it  ! 
hich  ihe  ' 
pencer  ^ 
fendant 
into  thr 
y  virtue  r 
be  a  con  vers 
to  him  for  a 
"ders  or  lea\ 
-jther  person.'' 
and  g-oes  beyoi  - 
Wheelock  v.    , 
Buffalo  was  d.) 
day,  or  ship  it  > 
sold  it  the  nexi 
■as  a  conversion, 
on  Torts  310,  r.:-  ! 
upon   by   the   i-, 
Hutchinson,  3  J  ai; 
ing*  that  a  broker 
erty  at  a  price  = 
of  cases,  I  ap{i;  . 
nothing  with  the  j. 
had  a  right  to  .stl. 
structions  as  to  pricv 
■inversion  of  the  jr 
ay  seem  technical 
Ijetween  an  unautlioii 
the  avails  or  terms  o; 
cognized  and  settled 


was  an 

!  inter- 

'  !hat 


.  in. 

al- 

.tj."-.'Uicr 

)0n 

ill  be  h. 

Ir. 

■  watch  waj 

by  a  watch i; 

'>r,  when  it  was  levu 

lie  owner,  and 

it  was  [,^.< 

"The  watch 

was  intrus 

r.i 

tain  its  vabiv 

T.                ,               , 

!  i  'V) 

n,  the  watcl 

:V\' 

rse  to  gv; 

■'C' 

'e  in  tro-. 

•  il. 

OT,.      So 

ia 

,  •f'c\f\0(\ 

'  :i  r 

'Ut 

.    lilUill 

in  trovv  _       . 
nction  in  the 


(Vb     AGIOjN'  r     l\>    PR  I 


JRCH,  Ch.  J., — Til 
,  Ln  lit  iff  made  b}''  n 
:>.::•]  t::i'\'  a  receipt  thert 
lion,  and  die  note  to  \- 
The  plaintiff  testified 
'  <;■  note  go  oni 
.dant,  after  r, 
dcli\cred  the  noti 
discounted,  and  re 
note  for  that  pun,  • 
but  appropriat'^'T 

The  court  ■. 
plaintiff  in  re^vK.:ci  i 
the  possession  of  the 
note,  and 
and  the  t 
cntic 


trover 

'i"!r'?ed 


e  defendant  rec  ■ 
third  person  ai 
*or,  stating  thai 
'•" -'ed  the  n: 
tee  that  ' 
'  without  iL 
ih  one  Foo'; 
r  the  pron"-. 
V  to  defends  ■ 
•d  procure  the  p 
lis  own  use. 
■le  jury  believed 
Ing  the  defendant 
"  act  of  defendant 
■-:e  it  away,  was  ; 
CO  recover.     The 
f  o{X3sitions,  one  of 
,.  available. 
ts  is  desirable,  I  thii' 
■'"?   -^^-oposition  alx) 

an  agent  is  liable  in  r 

'  rr-ore  usual  liability 

iisit  or  what  was 

1   or  misconduct. 

:   remedy.    Conversion 


exercise  of  the  i.^^.u  . 
Her  to  the  exclusion  of 
-ion  takes  place  wl;en  a 
onds  of  another  as 

.    Every 

;ng  with 
■se  a  hmited  autb 
;x)se  of  it  as  to 
ainion,  is  a  conN 


rights.     A  CO 
such  acts  in  ) 
appropriation 
of  personal  pi 
of  the  authority  c( 
with  intent  so  to  ; 
interfere  with  the 
Diet.,  title  Convert.!-..! 

Savage,  Ch.  J.,  in  h  .  Blackman 

• -ely  as  follows:  '  ~sion  se*:; 

which  the  defei  rives  tl: 

In  this  case  th  jced  th 

defendant  for  a  sp>  ^      ._•  not  on' 

ity  (as  we  must  assume  from  the  \ 
with  the  possession  of  the  note  wii 
delivery  to  Foote  was  unauthorized! 
to  the  express  directions  of  the  o\\  • 
the  absolute  dominion  over  this  j 

art  with  so  much  of  that  dcr. 


note  from 

-  plaintiff, 

negotia- 

ihereof. 

i  not  to 

,.    The 

e  note, 

get  it 

\ay  the 

vjunted, 

ncc  of  the 

i  1  rt  with 

'  \ag  the 

•iMii  in  law, 

n  has  been 

which  was  unob- 

e  exception 


r  cou version 

:;^ent  to  the 

termed  an 

e  are  cases 

d  to  be  an 

I   ownership 

the  owner's 

person  does 

lount  in  law  to 

■  ized  taking 

!  the  extent 

ijeen  given, 

>:>ndition  or 

3ouv.  Law 


167,  define 
in  any  torti' 
his  goods." 
c  hands  of   ; 
restricted  aut!' 
'  jury),  not  to  p: 
■•  ^  he  money.    'I 
ecause  contr;: 
'  was  entitled 
:.     He  had  i 
AC  pleased.    He  >' 


OBEDIENCE   TO    INSTRUCTIONS.  6/9 

part  with  so  much  of  it  as  would  justify  the  defendant  in  dehvering 
it  for  the  money  in  hand,  but  not  otherwise.  The  act  of  permitting 
the  note  to  go  out  of  his  possession  and  beyond  his  reach  was  an 
act  which  he  had  no  legal  right  to  do.  It  was  an  unlawful  inter- 
ference with  the  plaintiff's  property  which  resulted  in  loss,  and  that 
interference  and  disposition  constituted,  within  the  general  principles 
referred  to,  a  conversion,  and  the  authorities  I  think  sustain  this 
conclusion,  by  a  decided  weight  of  adjudication.  A  leading  case  is 
Syeds  v.  Hay,  4  T.  R.  260,  where  it  was  held  that  trover  would  lie 
against  the  master  of  a  vessel  who  had  landed  goods  of  the  plaintiff 
contrary  to  the  plaintiff's  orders,  though  the  plaintiff  might  have  had 
them  by  sending  for  them  and  paying  the  wharfage.  Butler,  J.,  said  : 
"If  one  man  who  is  intrusted  with  the  goods  of  another  put  them 
into  the  hands  of  a  third  person,  contrary  to  orders,  it  is  a  conver- 
sion." This  case  has  been  repeatedly  cited  by  the  courts  of  this  state 
as  good  law,  and  has  never  to  my  knowledge  been  disproved,  al- 
though it  has  been  distinguished  from  another  class  of  cases  upon 
which  the  defendant  relies,  and  which  will  be  hereafter  noticed.  In 
Spencer  v.  Blackman,  9  Wend.  167,  a  watch  was  delivered  to  the 
defendant  to  have  its  value  appraised  by  a  watchmaker.  He  put 
it  into  the  possession  of  the  watchmaker,  when  it  was  levied  upon 
by  virtue  of  an  execution  note  against  the  owner,  and  it  was  held  to 
be  a  conversion.  Savage,  C.  H.,  said :  "The  watch  was  intrusted 
to  him  for  a  special  purpose,  to  ascertain  its  value.  He  had  no 
orders  or  leave  to  deliver  it  to  Johnson,  the  watchmaker,  nor  any 
other  person."  So,  when  one  hires  a  horse  to  go  an  agreed  distance, 
and  goes  beyond  that  distance,  he  is  liable  in  trover  for  a  conversion. 
Wheelock  v.  Wheelwright,  5  ]\Iass.  103.  So,  when  a  factor  in 
Buffalo  was  directed  to  sell  wheat  at  a  specified  price  on  a  particular 
day,  or  ship  it  to  New  York,  and  did  not  sell  or  ship  it  that  day,  but 
sold  it  the  next  day  at  the  price  named,  held  that  in  legal  effect  it 
was  a  conversion.  Scott  v.  Rogers,  31  N.  Y.  676;  see,  also,  Addison 
on  Torts  310,  and  cases  there  cited.  The  cases  most  strongly  relied 
upon  by  the  learned  counsel  for  the  appellant  are  Dufresne  v. 
Hutchinson,  3  Taunt.  117,  and  Sarjeant  v.  Blunt,  16  Johns.  73,  hold- 
ing that  a  broker  or  agent  is  not  liable,  in  trover,  for  selling  prop- 
erty at  a  price  below  instructions.  The  distinction  in  the  two  classes 
of  cases,  I  apprehend,  is  that  in  the  latter  the  broker  or  agent  did 
nothing  with  the  property  but  what  he  was  authorized  to  do.  He 
had  a  right  to  sell  and  deliver  the  property.  He  disobeyed  in- 
structions as  to  price  only,  and  was  liable  for  misconduct,  but  not  for 
conversion  of  the  property,  a  distinction  which,  in  a  practical  sense, 
may  seem  technical,  but  it  is  founded  probably  upon  the  distinction 
between  an  unauthorized  interference  with  the  property  itself,  and 
the  avails  or  terms  of  sale.  At  all  events,  the  distinction  is  fully 
recognized  and  settled  by  authority.  In  the  last  case  Spencer,  J., 
distinguished  it  from  Syeds  v.  Hay,  supra.     He  said:  "In  the  case 


68o 


DUTIES    OF   AGENT   TO    PRINCIPAL. 


of  Syeds  v.  Hay,  4  Term  R.  260,  the  captain  disobeyed  his  orders  in 
deHvering  the  goods.  He  had  no  right  to  touch  them  for  the  pur- 
pose of  dehvering  them  on  that  wharf." 

The  defendant  had  a  right  to  sell  the  note,  and  if  he  had  sold 
it  at  a  less  price  than  that  stipulated,  he  would  not  have  been  liable  in 
this  action,  but  he  had  no  right  to  deliver  the  note  to  Foote  to  take 
away,  any  more  than  he  had  to  pay  his  own  debt  with  it.  Morally, 
there  might  be  a  difference,  but  in  law  both  acts  would  be  a  conver- 
sion, each  consisting  in  exercising  an  vmauthorized  dominion  over 
the  plaintiff's  property.  Palmer  v.  Jarmain,  2  M.  &  W.  282,  is 
plainly  distinguishable.  There,  the  agent  was  authorized  to  get  the 
note  discounted,  which  he  did  and  appropriated  the  avails.  Parke, 
B.,  said :  "The  defendant  did  nothing  with  the  bill  which  he  was  not 
authorized  to  do."  So,  in  Cairnes  v.  Bleecker,  12  Johns.  300,  where 
an  agent  was  authorized  to  deliver  goods  on  receiving  sufficient  se- 
curity, and  delivered  the  goods  on  inadequate  security,  it  was  held 
that  trover  would  not  lie,  for  the  reason  that  the  question  of  the 
sufficiency  of  the  security  was  a  matter  of  judgment.  In  McMorris 
V.  Simpson,  21  Wend.  610,  Bronson,  J.,  lays  down  the  general  rule 
that  the  action  of  trover  may  be  maintained  when  the  agent  has 
wrongfully  converted  the  property  of  his  principal  to  his  own  use, 
and  the  fact  of  conversion  may  be  made  out  by  showing  either  a 
demand  and  refusal,  or  that  the  agent  has  without  necessity  sold  or 
otherwise  disposed  of  the  property  contrary  to  his  instructions. 
When  an  agent  wrongfully  refuses  to  surrender  the  goods  of  his 
principal,  or  wholly  departs  from  his  authority  in  disposing  of  them, 
he  makes  the  property  his  own  and  may  be  treated  as  a  tort  feasor." 
The  result  of  the  authorities  is  that  if  the  agent  parts  with  the 
property,  in  a  way  or  for  a  purpose  not  authorized,  he  is  liable  for 
a  conversion,  but  if  he  parts  with  it  in  accordance  with  his  authority, 
although  at  less  price,  or  if  he  misapplies  the  avails,  or  takes  inade- 
quate for  sufficient  security,  he  is  not  liable  for  a  conversion  of  the 
property,  but  only  in  an  action  on  the  case  for  misconduct.  It  fol- 
lows that  there  was  no  error  in  the  charge.  The  question  of  good 
faith  is  not  involved.  A  wrongful  intent  is  not  an  essential  element 
of  the  conversion.  It  is  sufficient  if  the  owner  has  been  deprived  of 
his  property  by  the  act  of  another  assuming  an  authorized  dominion 
and  control  over  it.  31  N.  Y.  490.  It  is  also  insisted  that  the  parol 
evidence  of  instructions  not  to  part  with  the  note  was  incompetent 
to  vary  the  terms  of  the  contract  contained  in  the  receipt.  This  evi- 
dence was  not  only  not  objected  to,  but  the  point  was  not  taken  in 
any  manner.  The  attention  of  the  court  was  not  called  to  it,  and  the 
court  made  no  decision  in  respect  to  it.  Under  these  circumstances 
it  must  be  deemed  to  have  been  waived,  and  is  not  available  upon  ap- 
peal. But  if  an  exception  had  been  taken  I  am  inclined  to  the 
opinion  that  the  testimony  was  competent.  It  is  not  claimed  that  it 
varies  that  part  of  the  receipt  which  contains  an  agreement  to  return 


<'>'\: 


if  oi  recciv; 
•hat  a  parol 
i;>etore  sale  and  re- 
There  is  nc  »■•.'' 
part  with  a  pi 
The  instruct  i' 
though  if  the; 
have  been  ope  l 
and  a  bona  fie'' 
claimed  that  ;i;. 
livery  to  r>  t'. 
upon  this 
5ome  +'-- 
ma}-  ;" 
liarsh , 
in  thi> 

The  jU'' 

All  cone,  ■ 

Judgmen; 


the  jury  re 


Foster,  J. —  • 
cation  of  well 
unusual  and  exi 

'Accord:    Chas. 
'"'I.  V.  Mather,  iJ^^ 
It  is  no  defen' 
,T.iif,-t  a  claim 
:  he  claim  i 
■  never   ar. 
wiiether  it  be  l<} 
mere  negligence  o 
other  manner,  and  an 
responsible  therefor,  r 
fitute  no  defense    i<- 
nncipal.    Indeed,  in  ■ 
'  cd   from   :  '     '-     . 
y,  and  ac: 


its  deci 


he  is 


.  at  me  c 
-iich  a  c:' 


68o 


AGENT  TO  PRINCJ 


:  <  .:  •■;•!  1;.    line  J'"fn'(i 
jMise  of  'Jciivering"  t: 

The  tlefendai, 
it  at  a  less  price  \. 
;i   >  action,  but  he  \ 
:.v,ay,  any  more  tl.  ■ 
there  might  be  a 
sion,  each  consi 
the  plaintiff's  p; 
plainly  disti'^ 
note  discoui 
B.,  said:  "1  : 
authorized  ■ 
an  agent  v 
cur-'-     ■  '■■■■ 
the. 
"511  i' 
V.  . 
that  ill  I. 


X),  wher 

;icient  si 

was  he  I 

n  of  tl 


TIk    . 

property,  in  a  v 

a  conversion,  bii 

although  at  less  ; 

quate  for  sufficitut 

property,  but  only  iv, 

lows  that  there  was  ; 

faith  is  not  involveci. 

of  the  conversion. 

his  property  by  the  < 

and  control  over  it.  o.    It  is 

evidence  of  instruct! l.w.-  art  with 

to  vary  the  terms  of  the  contains 

dence  was  not  only  not  '■'■']'^Ll<:<A  to,  ' 

any  nianner.    The  attention  of  the  co; 

court  made  no  decision  in  respect  to 

it  must  be  deemed  to  have  been  waivf 

peal.     But  if  an  exception  had  been  r.i 

opinion  that  the  testimony  was  competent 

varies  that  part  of  the  receifSt  which  cont: 


260,  the  captain  disoi  ;  orders  in 

.  d  no  right  to  touch  the  pur- 

■  at  wharf." 

sell  the  note,  a:.  had  sold 

.  jd,  he  would  not  1':.  •  liable  in 

c.iit  to  deliver  the  note  to  K- 

•     pay  his  own  dtbt  wit! 
a  law  both  act?  woul. 
g  an  unauthorized  <. 
V.  Jarmain,  2  M. 
U-,  the  agent  was  au  '  .^  get  tl 

^;1  and  appropriated  1  Park- 

nothing  with  the  bill  whii-h  he  was  n< 
irnes  V.  Bleecker,  12  T  'n 
•-■r  goods  on  rec. 
on  inadequate  se 
he  reason  that  t' 
matter  of  judgment.  "  "  ■ 

on,  J.,  lays  down  tl- 
:ty  be  maintained  when  (iie  agent  hr 
nerty  of  his  principal  to  his  own  us 
be  made  out  by  showing  either 
agent  has  without  necessity  sold  < 
lerty   contrary   to  his   instruction 
::>es  to  surrender  the  goods  of  1- 
his  authority  in  disixising  of  thei: 
id  may  be  treated  as  a  tort  feasor 
that  if  the  agent  parts  with  ti 
ose  not  authorized,  he  is  liable 
..  ^.i  it  in  accordance  with  his  autho 
:e  misapplies  the  avails,  or  takes  v 
.\e  is  not  liable  for  a  conversion  ( 
n  on  the  case  for  miscon<».iict.     I 
'  the  charge.     Th-- 
111  intent  is  not  n' 
if  the  owner 
-  assuminp- 


f. 


\\   <XD       liiJ 


receipt.     This  ev' 


OBEDIENCE   TO    INSTRUCTIONS.  68 1 

the  note  or  the  money  the  next  day,  but  that  it  varies  the  clause  stat- 
ing that  the  note  was  received  for  negotiation.  This  expresses  the 
purpose  of  receiving  the  note,  and  if  deemed  a  contract,  can  it  be 
said  that  a  parol  mandate  not  to  part  with  possession  of  the  note 
before  sale  and  receipt  of  money  is  inconsistent  with  it? 

There  is  no  rule  of  law  which  gives  an  agent  the  right  thus  to 
part  with  a  promissory  note  under  the  mere  authority  to  negotiate. 
The  instructions  were  consistent  with  the  purpose  expressed,  al- 
though if  they  had  not  been  given  a  wider  field  of  inquiry  might 
have  been  opened.  A  promissory  note  passes  from  hand  to  hand, 
and  a  bona  fide  holder  is  protected  in  his  title,  and  it  might  well  be 
claimed  that  an  authority  to  sell  would  not  ordinarily  justify  a  de- 
livery to  a  third  person  without  a  sale.  Without  definitely  passing 
upon  this  question,  we  think  that  the  question  should  have  been  in 
some  form  presented  at  the  trial.  In  a  moral  sense  the  defendant 
may  have  acted  in  good  faith,  and  hence  the  judgment  may  operate 
harshly  upon  him,  but  the  fact  found  by  the  jury  renders  him  liable 
in  this  action. 

The  judgment  must  be  affirmed. 

All  concur. 

Judgment  affirmed.^ 


GREENLEAF  v.  MOODY  and  others. 

1866.     Supreme  Judicial  Court  of  Massachusetts. 
13  Allen  363. 

Foster,  J. — This  case  must  depend  for  its  decision  upon  the  appli- 
cation of  well  established  legal  principles  to  a  state  of  facts  of  an 
unusual  and  extraordinary  character. 

^Accord:  Chase  v.  Baskerville,  93  ■\Iinn.  402.  Compare  Alinneapolis  Trust 
Co.  V.  Mather,  181  N.  Y.  205. 

It  is  no  defense  to  an  agent  when  sued  for  loss  resulting  from  his  failure 
to  collect  a  claim  according  to  instructions,  that  he  used  diligence  in  trying  to 
collect  the  claim  in  another  way.   Butts  v.  Phelps,  79  Mo.  302. 

"Whenever  an  agent  violates  his  duties  or  obligations  to  his  principal, 
whether  it  be  by  exceeding  his  authority,  or  by  positive  misconduct,  or  by 
mere  negligence  or  omission  in  the  proper  functions  of  his  agency,  or  in  any 
other  manner,  and  any  loss  or  damage  thereby  falls  on  his  principal,  he  is 
responsible  therefor,  and  bound  to  make  a  full  indemnity.  And  it  will  con- 
stitute no  defense  for  him,  that  he  intended  the  act  to  be  a  benefit  to  the 
principal.  Indeed,  in  all  such  cases,  the  question  is  not  whether  the  party  has 
acted  from  good  motives  and  without  fraud ;  but  whether  he  has  done  his 
duty,  and  acted  according  to  the  confidence  reposed  in  him."  McBride,  J.,  in 
Switzer  v.  Connett,  11  ]\Io.  88,  89. 

"If  an  agent,  acting  in  good  faith,  disobey  the  instructions  of  his  principal 
and  promptly  informs  the  principal  of  what  he  has  done,  it  is  the  dutj'  of  the 
principal,  at  the  earliest  opportunity,  to  repudiate  the  act  if  he  disapprove.  Si- 
lence in  such  a  case  is  a  ratification."  ]\IcCav,  J.,  in  Bray  v.  Gunn,  53  Ga.  144, 
148. 


682  DUTIES    OF   AGENT    TO    PRINCIPAL. 

The  defendants,  commission  merchants  or  factors  in  New  Orleans, 
received  during  the  rebellion  in  1864  from  the  plaintiff  a  large  quan- 
tity of  hay  consigned  for  sale,  upon  which  they  made  advances  in 
payment  of  freight  and  other  charges  amounting  to  about  half  its 
value.  Three  hundred  and  twenty-one  tons  of  hay  were  sold  to  the 
military  officers  of  the  United  States  for  cash.  The  remainder,  134 
tons  were  seized  by  military  authority.  No  fault  could  be  imputed 
to  the  factors  for  either  of  these  events.  The  sales  for  cash  were 
clearly  within  the  scope  of  their  authority,  and  the  seizure  by  the 
strong  arm  of  military  power  was  an  occurrence  beyond  their  con- 
trol. 

The  only  payment  which  the  United  States  officers  would  make, 
either  for  the  hay  purchased  or  for  that  seized,  was  in  certificates  of 
indebtedness,  the  negotiable  notes  of  the  United  States,  payable  to 
the  bearer  and  upon  interest  at  the  rate  of  six  per  cent,  per  annum. 
The  factors  accepted  these  as  payment,  and  at  once  sold  them  for 
their  market  value,  ninety-three  cents  on  the  dollar.  The  plaintiff 
claims  that  the  defendants  are  liable  for  the  loss  sustained  by  this 
sale  at  a  discount,  first,  because  as  factors  they  had  no  right  to  take 
in  payment  such  securities;  and  secondly,  because,  if  justified  in  ac- 
cepting them,  they  had  no  right  to  sell  them  below  par  without 
notice  to  him.  And  we  are  called  upon  to  decide  whether  in 
either  of  these  particulars  they  violated  their  duty,  so  as  to  render 
themselves  personally  answerable  to  their  principal,  the  consignor, 
for  the  loss  sustained  by  the  sale  of  the  certificate  at  a  discount  below 
their  face. 

The  ordinary  rule  is  clear,  that  factors  must  obey  the  instructions 
of  their  principal ;  that  they  may  not  compromise  debts  without  au- 
thority ;  that  they  must,  under  a  change  of  circumstances,  advise  the 
consignor,  and  await  his  directions ;  and  that  they  must  conform  to 
the  usages  of  trade  presumed  to  be  known  to  both  parties,  or  to  the 
course  pursued  by  them  and  approved  by  the  owner  in  former  in- 
stances. But  what  is  their  duty  in  novel,  critical  and  unforeseen 
emergencies?  To  answer  this  question  we  may  refer  to  an  opinion 
of  Mr.  Justice  Story  in  a  suit  relative  to  the  conduct  of  a  supercargo 
who  had  totally  departed  from  the  instructions  of  the  shipper,  which 
is  so  apposite  that  we  adopt  its  principles  and  the  substance  of  its 
language.  In  circumstances  of  necessity  or  great  urgency  it  is  only 
necessary  that  the  agent  should  act  bona  Ude  and  with  reasonable 
discretion.  "What,  then,  was  it  the  duty  of  the  supercargo  to  do  in 
such  a  case  of  unexpected  occurrence,  not  within  the  contemplation 
of  the  instructions?"  "Now  I  take  it  to  be  clear  that  if,  by  some  sud- 
den emergency,  or  supervening  necessity,  or  other  unexpected  event, 
it  becomes  impossible  for  the  supercargo  to  comply  with  the  exact 
terms  of  his  instructions,  or  a  literal  compliance  therewith  would 
frustrate  the  objects  of  the  owner  and  sacrifice  his  interests,  it  be- 
comes the  duty  of  the  supercargo,  under  such  circumstances,  to  do 


M         L>t  he  can,  in 
ch  a  case,  ft 
voyages  of  this  so 
terest  and  hevf■^^^ 
and  emergen*: 
raster  v.  Boar 
necessary  dep;.i 
tual  instruct!' 
ptrirtnc^s,     '!  ' 


ccomes, 
'•In  all 
the  in- 
rcessity 
'  For- 
■pon 
ic- 


sumed  to  have  .ai  '\. 
merce  re^' 
bestow,  a 
from  the 
sence  of 
occur 
catioTi 

dently  and  in  ^ 
would  ha\e  K  .■ 
tion  in  the  s  n.  ■mi: 
aiswerabli 

nstratc  i 

onrse  iv 

This  i:^ 
siTbmitted  to  us. 
good  faith  of  i'ie 
strictness,   givv     vii;;'! 
stated  does  n  - 
m  conformir 
parties,  to  co. 
ants  did  act  \ 
from  liability,    c  • 
in  payment?  If  t: 

ould  have  been  an  : 
.)n  or  to  congress    - 

ogard  these  rer ) 
seven  per  cent 
expense,  the  (\ 
induced  any  one,  i 
acting  in  his  owi; 

lan  to  attempt  t" 

cmedy  was  praci.i.... 

!onate  to  the  amount 
The  propriety  <  ' 

uestionable.    As 


I  r  bv 


682 


r'J.-iiF.s  Of 


The  defendants,  i: 
received  during  the    .._.,. 
tity  of  hay  consigned  f< 
payment  of  freight  and 
value.    Three  hundred  . 
officers  of  t'u 
re  seized  by    ; 
to  the  factors  for  er 
clearly  within  the  S' 
strong  arm  of  milit;' 
trol. 

The  only  paymer 
either  for  the  ha^ 
indebtedness,  th- 
the  bearer  ar  ■ 
The  factor; 
their  n- 

rlaivn^   ' 


xor  the  ]<.)S.'^ 
their  face. 


rchants  or  factcr 
^64  from  the  pla^.  .  . 
tpon  whidi  they  mad 

Orleans, 

:  ge  quan- 

.■    Kivances  in 

larges  amou-  '  •   '  ' 

K-.Tj.-     .•(-.- 

ty-one  tons  >  • 

ites  for  cash,     iiie 
'lority.    No  fauk  cov. 

■  134 

lUted 

events.     T) 
authority,   r 
13  an  occurr-. 

were 

y  the 

>nd  their  con- 

I'nited  States  ofl.  ild  make, 

•  »r  that  seized,  w;  ificates  of 

-  of  the  United  ayable  to 

- 'e  rate  of  six  per  ^.eiil.  per  annum 
yment,  and  at  once  sold  them  fv 
cents  on  the  dollar.     The  plaintir- 
iable  for  the  loss  sustained  by  thi 
i.s  factors  they  had  no  right  to  tak- 
lu  secondly,  because,  if  justified  in  a> 
right  to  sell  them  below  par  withou' 
/e   called  upon   to  decide   whether    is 
?y  violated  their  duty,  so  as  to  rendc 
"e  to  their  principal,  the  consigno: 
.   -if  the  teriifuritr  :)i  n  (li'-ci.'unt  liek';  - 


tacL. 


LIM     (.  >l_)l. 


.ilV;     MiM  L  LH    LI 


Uionly ;  tii,.' 

consignor,  ti 

the  usages  of  t: 

course  pursued 

stances.     But  ^^ 

emergencies?    Iv..  ,  ^  <i' '->  - 

of  Mr.  Justice  Stor} 

who  had  totally  dep.  :  ivisivu. 

■is  S'.>  apposite  that  \  ,)rincipU 

:e.     In  circuii  ecessity 

ry  that  the  fi  ^  ict  /'^?- 

discretion.    "What,  thei 

such  a  case  of  unexpectc  . 

of  the  instructions?"    "Now  I  take  it  • 

den  emergency,  or  supervening  neces 

it  becomes  impossible  for  the  superi 

tenns  of  his  instructions,  or  a  •' 

F'-vstrate  the  objects  of  the  ow^- 
'uty  of  the  supei 


not  compromise  debts  without  at 
hange  of  circumstances,  advise  t'i 
is ;  and  that  they  must  conform  - 
je  known  to  both  parties,  or  to  tl 
■roved  by  the  owner  in  former  i; 
in  novel,  critical  and  unforesee 


■  '^'^  to  an  opmu 

a  supercarr 

^)or.  whir' 

.'-ice  of  ir 

■.agency  it  is  on' 

I  with  reasonah  - 

:  >  to  do  i ' 

..!.cmplati<-! 

l>y  some  suti 

vpected  even! 

ith  the  exav 

rewith  wouh 

iterests,  it  b'. 

oumstances,  to  d< 


OBEDIENCE    TO    INSTRUCTIONS.  683 

the  best  he  can,  in  the  exercise  of  a  sound  discretion."  "He  becomes, 
in  such  a  case,  an  agent  from  necessity  for  the  owner."  "In  all 
voyages  of  this  sort  there  is  an  implied  authority  to  act  for  the  in- 
terest and  benefit  of  the  owner  in  all  cases  of  unforeseen  necessity 
and  emergency,  created  by  operation  and  intendment  of  law."  For- 
rester V.  Boardman,  i  Story  43,  51.  A  justification  founded  upon 
necessary  departure  from  the  ordinary  custom  of  trade  or  from  ac- 
tual instructions  must  undoubtedly  be  construed  with  considerable 
strictness.  The  agent  cannot  be  allowed  lightly  or  unadvisedly  to 
assume  a  latitude  of  discretion  not  conferred  upon  him  by  express 
authority,  or  by  those  usages  of  trade,  which  both  parties  are  pre- 
sumed to  have  known  and  contemplated.  But  the  interests  of  com- 
merce require,  and  the  enlightened  principles  of  commercial  law 
bestow,  a  discretion  which  enables  the  factor  to  protect  his  principal 
from  the  irreparable  injury  which  would  be  liable  to  arise  in  the  ab- 
sence of  authority  to  act  under  critical  circumstances,  unexpectedly 
occurring,  which  do  not  admit  of  delay  for  the  purposes  of  communi- 
cation and  consultation.  And  the  factor,  so  placed,  who  acts  pru- 
dently and  in  good  faith,  as  the  owner  himself,  being  a  wise  man, 
would  have  been  likely  to  do  if  personally  present,  finds  his  protec- 
tion in  the  sincerity  and  sound  discretion  of  his  conduct,  and  is  not 
answerable  for  consequences,  although  subsequent  events  may  dem- 
onstrate that  his  principal  would  have  been  the  gainer  by  a  different 
course  from  the  one  he  has  conscientiously  and  discreetly  adopted. 

This  is  the  rule  which  must  govern  the  decision  of  the  case  here 
submitted  to  us.  It  isi  a  question  of  fact  rather  than  of  law.  The 
good  faith  of  the  defendants  is  expressly  conceded.  We  might,  in 
strictness,  give  judgment  for  them  on  the  ground  that  the  case 
stated  does  not  affirmatively  establish  their  liability.  But  we  prefer, 
in  conformity  with  what  we  suppose  to  be  the  intention  of  the 
parties,  to  consider  and  pass  upon  the  question,  whether  the  defend- 
ants did  act  with  such  prudence  and  discretion  as  to  exempt  them 
from  liability.  Ought  they  to  have  refused  the  certificates  proffered 
in  payment?  If  they  had  done  so,  the  only  redress  open  the  plaintiff 
would  have  been  an  application  to  the  war  department  at  Washing- 
ton or  to  congress  or  to  the  court  of  claims.  No  rational  man  could 
•regard  these  remedies  as  worth  pursuing  to  avoid  a  discount  of 
seven  per  cent.,  the  whole  amount  of  which  was  only  $1,659.28.  The 
expense,  the  delay,  the  uncertainty  of  ultimate  success,  would  have 
induced  any  one,  having  regard  solely  to  his  pecuniary  interest,  and 
acting  in  his  own  affairs,  to  accept  the  proffered  certificates  rather 
than  to  attempt  to  stand  upon  his  strict  legal  rights,  where  no  legal 
remedy  was  practically  available  without  disadvantages  dispropor- 
tionate to  the  amount  at  stake. 

The  propriety  of  selling  the  certificates  may  be  considered  more 
questionable.    As  they  were  sold  as  soon  as  received,  justice  requires 


684  DUTIES    OF   AGENT    TO    PRINCIPAL. 

US  to  regard  the  factor's  entire  judgment  and  conduct  together,  and 
if  the  principal  was  benefited  by  the  whole  exercise  of  their  discre- 
tion, and  placed  in  a  better  condition  than  if  they  had  refused  to  as- 
sume the  responsibility,  it  would  be  unfair  to  subject  them  to  loss 
because  they  might  in  one  respect  have  done  still  better.  No  one  can 
say  that  they  would  have  decided  to  accept  the  certificates  without 
also,  as  a  part  of  the  same  mental  act,  deciding  to  convert  them  forth- 
with into  cash.  But  we  do  not  proceed  upon  this  narrow  ground 
alone.  In  guarding  the  interests  of  a  distant  principal  it  was  their 
duty  to  err  on  the  side  of  prudence  rather  than  of  overconfidence. 
We  must  remember  the  situation  of  the  parties  and  the  country 
at  the  time  of  the  transaction,  and  judge  by  the  light  they  then  had, 
and  not  according  to  the  wisdom  that  comes  after  the  event.  The 
ordinary  facilities  to  correspondence  between  Maine  and  New  Or- 
leans was  greatly  interrupted.  No  telegraphic  communication  was 
possible.  The  mails  were  slow  and  uncertain,  and  somewhat  exposed 
to  capture  in  transit.  The  interval  within  which  the  most  speedy 
interchange  of  letters  could  take  place  was  long  enough  for  mo- 
mentous events.  The  pecuniary  credit  of  the  government  depended 
on  the  varying  fortunes  of  war.  A  single  disaster  might  have  de- 
pressed the  market  value  of  the  securities  far  below  the  point  at 
which  they  then  stood.  Other  factors  and  agents  similarly  situated 
with  themselves  deemed  it  their  duty  to  realize  at  the  current  rates 
of  the  market.  More  than  half  of  the  proceeds  of  the  property 
would  be  required  in  New  Orleans  to  pay  advances  and  charges. 
The  justification  of  the  sale  is  not  to  be  placed  on  the  ground  that 
they  had  a  right  to  make  a  sacrifice  in  order  to  reimburse  themselves, 
for  factors  cannot  sell  below  limits  without  notice  to  the  owner  of  the 
amount  due  and  a  request  for  payment.  But  the  fact  that  the  con- 
signor owed  $14,303.45,  payable  in  New  Orleans,  on  account  of  this 
shipment,  was  a  circumstance  of  some  weight  in  determining  the 
question  of  expediency.  If  the  securities  were  to  be  sent  to  the 
north,  and  the  money  due  to  be  remitted  thence,  double  risks  of 
transportation  must  be  incurred. 

It  is  impossible  for  us  to  •  conclude  that  the  course  adopted 
exhibited  any  such  error  of  judgment  or  neglect  of  duty  as  ought 
to  render  mercantile  agents  personally  responsible  to  their  principals. 

Judgment  for  the  defendant.^ 

^Compare  Harter  v.  Blanchard.  64  Barb.   (N.  Y.)  617. 

Regarding  the  right  of  a  ship  captain  to  sell  the  cargo  see  Butler  v.  Mur- 
ray, 30  N.  Y.  88. 


:SOTA  LI- 


rLAl>iT]FJ-    '.  i 

claims  to  have 

said  Valentini. 

mit  that  the  n: 

Valentine  for 

payment  - 

-j'-  '-''^'  -  ■■ 

fied  b. 

ict  and 

tiff,  a 

i.use  has  hv,; 

conrt 

art  here  de' 

ider  which  the  mon« 

-      -  -  i-^      - 

J.      ihe 

i^sited  witi. 

...  with  them  by  one  K 

agent  for  the 

was  a  conflict  in  the  evi 

the  direct: 

;i  this  time  as  h'     ' 

which  the 

-e.d.     TTarkne^s 

while  def t : 

iie  direction  was  ■ 

should  be  ;.^ 

'  1 1 1 .;. :  n !"» Q ''.    .'•  1     1  ■  M  r . 

for  plaintiff,  vn 

formed  them    : 

•  lllUif    \\   ■ 

sion  of  six  cei 

;te  seed 

evidence  :' 

his  arrany 

chases  m<? 

The  defen  - 

which  was  rej 

employing  'de/ 

checks  made  b 

such    '    ' 

undev 

bound  bv  liie  aii-i. 

ably  conveyed   to 

faith  in  carrying  oui  such 

conveyed  to  them  ^^    ^'-^ 

nts  assign  the  rei 

un  its  own  motior,  u-- 

plaintiff's  general  ;r<<..nt  m 

'vas  ambiguous,  or  Ttiri; 

.11, 


yard  the  fact 
rial  was 
■eel  in  ? 


tney  wouia 
..    a  part  of  the 
'Aih  into  cash,     Bui 
aione.     In  guard'-' 
•  Inty  to  err  on  t' 
We  must  remei' 
at  the  time  of  t^ 
and  not  acc^ 
ordinr'.rv  fv   • 
leai 


amount  due  aiuj  u  re 
signer  owed  $i4.ir<: 
shipment,  was    < 
question  of  exj'^ 
north,  and  the 
transportation  n 
It    is    impossi^ 

1  any  sucii  . 


e  judgment  .  her,  anc' 

b}'  the  who  r  discre- 

■iif'ition  than  -d  to  as- 

i>e  unfo  ■■  loss 

have  do-  ■:•  can 

:  to  accept  the  cc  '.     ' 

■:t,  deciding  to  ecu  •.  ■.  -  ' 

;)roceed  upon  this  n:. 
of  a  distant  princip;; 
ice  rather  than  of  o'> 
i.   of  tlie  parties  an^l 
judge  by  the  h'ght  t. 
that  comes  after  the  event.     Th- 
•ire  between  Maine  and  New  Or 
\o  telegraphic  communication  w? 
i  uncertain,  and  somewhat  expose' 
\al  within  which  the  most  speed, 
•  place  was  long  enouj^h  for  mo 
redit  of  the  government  dependc 
di.     A  single  disaster  might  have  de 
the  securities  far  below  the  point  a' 
:r  factors  and  agents  similarly  situate. 
^mV  fluty  to  realize  at  v^  ■    <  -.irrent  rate 
'  :        ;    the  proceed:-  propert 

•_' :ns  to  pay  advau'c:-   .uiu  char- 
it  to  be  placed  on  the  ground 
:ii  .  .  ier  to  reii'  " 
;i;     -i  notice  u 
\inent.     But  the  fact  lisat  the 
a  New  Orleans,  on  acccunt  oi 
some  weight  in  determining  tlv 


ide   tha 


irse   adopte' 


arter  v.  Biari 
/ic  riplit  of  a 


OBEDIENCE   TO    INSTRUCTIONS.  685 

MINNESOTA  LINSEED  OIL  CO.  v.  MONTAGUE  and 

SMITH. 

1884.     Supreme  Court  of  Iowa.     65  Iowa  67. 

Plaintiff  brought  this  suit  to  recover  a  sum  of  money  which  it 
claims  to  have  deposited  with  defendants,  to  be  paid  out  only  on 
tickets  issued  by  one  Valentine,  an  agent  of  the  plaintiff,  in  the  pur- 
chase of  flaxseed,  but  which  defendants,  without  authority,  paid  to 
said  Valentine  in  payment  of  certain  commissions.  Defendants  ad- 
mit that  the  money  was  deposited  with  them,  and  that  they  paid  it  to 
Valentine  for  the  purpose  alleged  by  plaintiff,  but  deny  that  such 
payment  was  unauthorized,  and  allege  that  it  was  subsequently  rati- 
fied by  plaintiff.  There  was  a  verdict  and  judgment  for  the  plain- 
tiff, and  defendants  appeal.  The  cause  has  heretofore  been  in  this 
court.     See  59  Iowa  448. 

Reed,  J. — i.  *  *  *  (The  court  here  decided  a  question  re- 
garding the  admissibility  of  evidence.) 

2.  The  original  arrangement  under  which  the  money  was  de- 
posited with  defendants  was  made  with  them  by  one  Harkness,  as 
agent  for  the  plaintiff.  There  was  a  conflict  in  the  evidence  as  to 
the  directions  given  by  Harkness  at  this  time  as  to  the  manner  in 
which  the  money  should  be  disbursed.  Harkness  testified  that  he 
directed  the  defendants  to  pay  out  money  only  on  tickets  issued  by 
Valentine,  which  should  show  actual  purchases  by  him  of  flaxseed ; 
while  defendants  both  testified  that  the  direction  was  that  the  money 
should  be  paid  out  generally  in  the  business  of  purchasing  flaxseed 
for  plaintiff,  in  which  Valentine  was  engaged,  and  that  Harkness  in- 
formed them  at  that  time  that  Valentine  was  to  be  paid  a  commis- 
sion of  six  cents  per  bushel  on  all  the  seed  purchased  by  him.  The 
evidence  shows  without  conflict  that  Valentine  was  entitled,  under 
his  arrangement  with  plaintiff,  to  receive  as  commissions  on  the  pur- 
chases made  by  him  the  amount  of  money  paid  him  by  defendants. 
The  defendants  asked  the  court  to  give  the  following  instruction, 
which  was  refused :  'Tf  the  language  used  by  plaintiff's  agent  in 
employing  defendants  as  plaintiff's  disbursing  agents,  to  pay  off 
checks  made  by  Valentine,  and  instructing  them  as  to  their  duties  as 
such  disbursing  agents,  was  fairly  capable  of  two  constructions  or 
understandings,  or  was  ambiguous  in  its  meaning,  the  plaintiff  is 
bound  by  the  understanding  which  his  language  fairly  and  reason- 
ably conveyed  to  defendants,  provided  defendants  acted  in  good 
faith  in  carrying  out  such  understanding  thus  fairly  and  reasonably 
conveyed  to  them  by  the  language  of  plaintiff's  agent."  Defend- 
ants assign  the  refusal  to  give  this  instruction  as  error.  The  court 
on  its  own  motion  instructed  the  jury  that,  "if  the  language  used  by 
plaintiff's  general  agent  in  making  the  arrangement  with  defendants 
was  ambiguous,  or  fairly  admitted  of  more  than  one  construction. 


686 


DUTIES    OF    AGENT    TO    PRINCIPAL. 


that  meaning  is  to  be  given  in  which  they  were  understood  by  de- 
fendants, provided  plaintiff's  said  general  agent  had  reason  to  be- 
lieve they  were  so  understood  by  defendants."  Omitting  the  quali- 
fication expressed  in  the  last  clause,  this  instruction  presents  the  rule 
which  is  embodied  in  the  instruction  asked.  With  the  qualification, 
however,  it  presents  a  very  different  rule.  Under  the  instruction  as 
given,  defendants  would  be  liable  if  they  adopted  and  acted  on  a  con- 
struction of  the  instructions  of  which  they  were  fairly  capable,  but 
which  was  different  from  which  was  actually  intended  by  the  agent, 
and  he  did  not  know  that  they  had  adopted  such  wrong  construction. 
This,  it  seems  to  us,  would  be  to  make  the  innocent  party  suffer  for 
the  wrong  or  negligence  of  another.  If  the  instructions  were  "am- 
biguous, or  fairly  admitted  of  more  than  one  construction,"  this  was 
the  fault  or  negligence  of  the  party  who  gave  them,  and  that  party 
ought  in  justice  to  bear  the  consequence  of  such  negligence,  rather 
than  the  one  who  was  deceived  and  misled  by  it.  We  think,  there- 
fore, that  the  instruction  should  have  been  given  without  the  qualifi- 
cation.  Vianna  v.  Barclay,  3  Cow.  281.^     *     *     * 

Judgment  reversed  and  cause  remanded  for  a  new  trial. ^ 


WELLS  V.  COLLINS. 


1889.     Supreme  Court  of  Wisconsin.     74  Wis.  341. 


Appeal  from  the  Superior  Court  of  Milwaukee  County. 

The  following  statement  of  the  case  was  prepared  by  Mr.  Justice 
Taylor  as  part  of  the  opinion : 

This  action  was  brought  to  recover  for  the  wrongful  conversion  of 
certain  sums  of  money  collected  by  the  defendant  for  the  plaintiff, 
and  converted  by  defendant  to  his  own  use.  The  material  facts  as 
shown  upon  the  trial  are  the  following :  In  1883  the  defendant  was 
the  agent  of  the  plaintiff,  Daniel  Wells,  Jr.,  in  collecting  rents  and 
other  moneys  for  him.  At  the  same  time  he  was  also  the  agent  of 
William  S.  Wells,  collecting  rents  and  transacting  other  business  for 
said  William  S.  Wells.  The  plaintiff  was  the  owner  of  a  certain 
dwelling-house  situated  in  the  city  of  Milwaukee,  and  on  or  about 
the day  of ,  1883,  he  directed  said  defendant  to  col- 
lect the  rents  which  should  thereafter  become  due  to  him  from  the 
tenants  of  said  premises,  and  pay  over  the  money  so  collected  to  his 

^  A  portion  of  the  opinion  is  omitted. 

"Accord:   Bessent  v.  Harris,  63  N.  Car.  542,  646;  Pickett  v.  Pearsons,  17  Vt. 

470,  477- 

In  Coker  v.  Ropes,  125  Mass.  577,  an  instruction  to  the  jury,  that  where 
orders  to  an  agent  are  explicit  and  intelligible  the  agent  is  deprived  of  any 
discretion  in  the  execution  of  these  orders,  was  held  correct. 


William  ^. 
same  to  W;: 
:  to  his  brother. 
(    "     "  )n,  and  before  >' 
collected  rents  from 
of  $368.20.    Of  thi 
said  William  S.  We! 
plaintiff  demanded     : 
by  him  and  not  n.;-'  to 
refused  to  pay  ovci  :::c  -^ 

On  the  trial  thert  wa 
collected,  or  the  amount 
Ham  S.  V/(=-i'';     ;'..'  r'w-  . 
the  $50 
commis 
fendant 

Tayl 
tention 


we  must,  un 
were  collectc.  , 
der  direction  to 
there  can  be  no 
was  the  money  r- 
by  his  agent 
money  so  co  ;■ 
tion  to  the  matter  11 
and  handed  the  n-  ^ 
William  S.  WelL 
converted  it  to  lu- 
'enant  of  the  respon' 
rive  the  mone- 
:noney  of  the 
■:  between  the  Li. 
-  money  shall  f;-.^ 
elation  of  cr: 
^e  money  so  i^ 
on  V.  Sharpstei: 
ice  Paine,  after 

found  no  rnse  • 


rent.s  and 


over  by 
ered  ani'.. 
to  Willi, 
ollecting  li 

•    '  -on:)      J  . 
:         .nt  to  the  .  ^ 
i.der  the  direction  giv 
/lOut  foundation.     HoJ.^  , 
igs  of  the  court,  that  the 
'■':  agent  of  the  respo!-  ' 
iiam  S.  Wells  when 

hat  the  money  when  cgIj 
any  application  of  ^tirh  ;. 

i  would  be  a  cou 
ere  could  be  no  u  .,. 

id  collected  the  ren^ 
:C,  v/ith  direc^^  ■'  - 

1  neglected  ; 


cy  collected  by  him  ■ 
if.  in  the  absence  01    .  . 
his  own,  and  himself  a: 


686 


•r  f" 


that,  meaning  is  to  be  given; 
fendiints.  provided  yr-  ' 
iieve  they  were  so  U'. 
fication  expressed  in 
which  is  embodied  h: 
however,  it  presents 
given,  defendants  w< 
struction  of  the  inst 
which  was  differs  ' 
and  he  did  not  k 
This,  it  seems  to 
the  wrong  or  rtr 
biguous,  pr 
the  fault  or 
ought  in  jv. 
than  the  ont  w;; 
fore,  tlmt  the  ins- 
cat^ 


in  which  they  were  •  d  by  de 

said  general  agent  !  '  ■  '  v 

hv  defendants."     ('■  ,   .,■. 

c,  this  instn.  rule 

on  asked.  lion, 

nt  rule.     Under  the  n  as 

(f  they  adopted  and  ac.  .  con- 

hich  they  were  fairly  capable,  but 
as  actually  intended  by  the  agent. 
■  adopted  such  wrong  constnictior 
iiake  the  innocent  pai"ty  suffer  for 
cr.     If  the  instructions  were  "am- 
^e  than  one  construction,"  this  was 
ly  who  gave  them,  and  that  party 
equence  of  such  negligence,  rathe v 
nd  misled  by  it.     We  think,  there 
,ave  been  given  wthout  the  qualifi 

V.  281.^      *      *      * 

<  !nanded  for  a  new  trial. ^ 


LLINS. 


L  01?  Wisconsin.     74  Wis.  341. 


iiie  •■ 
Taylor  ;. 

This  action  w 
certain  sums  of 
and  converted  b 
shown  upon  the  c.   -.  ..  . 
the  agent  of  the  plamtifi 
other  moneys  for  hir'- 
William  S.  Wells,  cc 

■    0  S.- We 

jse  situa 

the day  of  - 

lect  the  rents  which 
tenants  of  said  prenr; 

'  A  portion  of  the  opi 
-Accord:   Bessent  v. 

470,  477. 

la   Coker  v.  Ropes,   i 
ruers  to  an  agent  are 

J:  •:ietion  in  the  execut; 


rt  of  Milwaukee  County. 
iie  case  was  prepared  by  Mr.  Jusik 

>ver  for  the  wrongful  conversion  o. 
!iy  the  defendant  for  the  plaintifl 
,  own  use.     The  material  facts  a 
.v/ing:     In  1883  the  defendant  wa 
Wells,  Jr.,  in  collecting  rents  an<; 
■  "  time  he  was  also  the  agent  oi 
;  transacting  other  business  f o  ■ 
f  was  the  owner  of  a  co-' 
i  Milwaukee,  and  on  or  ; 
lie  directed  said  defendant  to  coi 
ifter  become  due  to  him  from  tht 
over  the  money  so  collected  to  hh 


:  V.  Pearsons,  17  Vt. 

■.he  jury,  that  where 
is  deprived  of  any 


M 


OBEDIENCE    TO    INSTRUCTIONS.  68/ 

brother,  William  S.  Wells.  This  direction  to  collect  the  rents  and 
pay  the  same  to  William  S.  Wells  was  intended  as  a  gift  from  the 
plaintiff  to  his  brother,  William  S.  Wells.  After  the  giving  of  this 
direction,  and  before  the  commencement  of  this  action,  the  defendant 
collected  rents  from  the  tenants  of  said  dwelling-house  to  the  amount 
of  $368.20.  Of  this  sum  the  defendant  paid  $50,  and  no  more,  to 
said  William  S.  Wells.  Before  the  commencement  of  this  action  the 
plaintiff  demanded  of  the  said  defendant  the  said  money  so  collected 
by  him  and  not  paid  to  said  William  S.  Wells,  and  the  defendant 
refused  to  pay  over  the  same  or  any  part  thereof. 

On  the  trial  there  was  no  dispute  as  to  the  amount  of  the  rents 
collected,  or  the  amount  actually  paid  over  by  the  defendant  to  Wil- 
liam S.  Wells ;  and  the  plaintiff  recovered  amount  of  said  rents,  less 
the  $50  admitted  to  have  been  paid  to  William  S.  Wells,  and  the 
commissions  due  the  defendant  for  collecting  the  same.  The  de- 
fendant appealed  from  the  judgment. 

Taylor,  J. —  (After  deciding  another  question:)  The  other  con- 
tention, that  the  only  relation  of  the  respondent  to  the  appellant  in 
regard  to  the  rents  collected  by  him  under  the  direction  given  is  that 
of  creditor  and  debtor,  is  equally  without  foundation.  Holding,  as 
we  must,  under  the  evidence  and  findings  of  the  court,  that  the  rents 
were  collected  by  the  defendant  as  the  agent  of  the  respondent,  un- 
der direction  to  pay  the  same  to  William  S.  Wells  when  collected, 
there  can  be  no  reasonable  doubt  but  that  the  money  when  collected 
was  the  money  of  the  respondent,  and  any  application  of  such  money 
by  his  agent  other  than  the  one  directed  would  be  a  conversion  of  the 
money  so  collected  and  received.  There  could  be  no  doubt  in  rela- 
tion to  the  matter  if  the  respondent  had  collected  the  rents  himself 
and  handed  the  money  to  the  appellant,  v/ith  directions  to  pay  it  to 
William  S.  Wells,  and  the  appellant  had  neglected  to  pay  it  over  and 
converted  it  to  his  own  use.  When  he  receives  the  money  of  the 
tenant  of  the  respondent  as  agent  of  the  landlord,  does  he  not  in  law 
receive  the  money  as  the  money  of  the  landlord  ?  It  certainly  is  not 
the  money  of  the  agent  when  received,  unless  there  be  some  agree- 
ment between  the  landlord  and  agent,  either  express  or  implied,  that 
such  money  shall  be  considered  the  money  of  the  agent,  and  that  only 
the  relation  of  creditor  and  debtor  shall  exist  between  the  parties  as 
to  the  money  so  received.  Such  was  the  decision  of  this  court  in 
Cotton  V.  Sharpstein,  14  Wis.  226.  In  the  opinion  in  that  case, 
Justice  Paine,  after  a  full  discussion  of  the  question,  says :  "We 
have  found  no  case  where  the  exact  question  now  under  discussion 
has  been  decided.  But  we  are  satisfied  that  it  is  the  clear  result  of 
principles  well  established  that  it  is  the  duty  of  the  agent  to  keep 
money  collected  by  him  for  the  principal,  to  whom  it  belongs,  and 
that  if,  in  the  absence  of  any  authority,  express  or  implied,  to  treat 
it  as  his  own,  and  himself  as  a  mere  debtor,  he  wrongfully  converts 
it  to  his  own  use,  he  is  liable  to  an  action  of  trover  and  to  all  the 


688  DUTIES    OF    AGENT    TO    PRINCIPAL. 

legal  consequences  of  such  an  action."     In  in  re  ,  30  Eng. 

Law  &  Eq.  390,  Lord  Campbell  said :  "Those  bills  were  chattels, 
sent  to  him  to  be  applied  to  a  specific  purpose  for  the  benefit  of  the 
client,  and  he  could  not  honestly  mix  the  proceeds  of  those  bills  with 
his  own  proper  money.  *  *  *  Unless  there  was  some  evidence 
of  condonation  on  the  part  of  the  client,  we  cannot  treat  this  as  a 
case  of  mere  debt."  So  in  the  case  at  bar,  the  rent  money  came  to 
the  hands  of  the  appellant  for  a  specific  purpose,  and  he  cannot 
divert  the  money  from  that  purpose  without  the  consent,  express  or 
implied,  of  the  respondent.  In  this  case  the  court  has,  upon  suffi- 
cient evidence,  fovmd  that  no  such  consent  was  given. 

The  fact,  if  such  be  the  fact,  that  the  respondent  had  treated  the 
appellant  as  his  debtor  for  other  rents  collected  by  him,  would  not 
help  the  appellant  as  to  the  rents  collected  under  the  order  to  pay  the 
money  so  collected  to  William  S.  Wells.  Such  direction  took  these 
rents  out  of  the  course  of  general  dealing  between  the  parties,  and 
appropriated  them  to  a  particular  purpose ;  and,  according  to  the 
findings  of  the  court,  which  are  clearly  supported  by  the  evidence, 
the  appellant  did  not  appropriate  them  to  such  specific  purpose,  but, 
on  the  contrary,  converted  them  to  his  own  use,  without  the  consent, 
either  express  or  implied,  of  the  respondent  or  of  William  S.  Wells. 

We  think  the  case  was  properly  decided  by  the  superior  court. 

By  the  Court. — The  judgment  of  the  Superior  Court  of  Mil- 
waukee County  is  affirmed. 


Section  2. — Agent's  Duty  to  Observe  Good  Faith. 

HEGENMYER  and  Another  v.  MARKS. 

1887.     Supreme  Court  of  Minnesota.     37  Minn.  6. 

Gilfillan,  C.  J. — The  plaintiff  owned  a  lot  of  land  in  Minneap- 
olis. One  Creigh  was  a  real  estate  broker,  and  at  his  request  she 
employed  and  authorized  him  to  sell  the  lot  to  any  one  who  would 
purchase  it  at  such  sum  as  would  net  her  $1,050,  Creigh  to  receive 
as  his  compensation  whatever  he  could  get  for  the  lot  in  excess  of 
$1,050.  At  the  time  of  such  employing  he  (believing  it  to  be  true) 
represented  to  her,  and  she  believed,  that  $1,050  was  the  fair  market 
value  of  the  lot.  Both  of  them  supposed  the  lot  to  be  entirely 
■vacant ;  but  a  third  person,  owning  the  adjoining  lot,  had  by  mistake 
constructed  on  her  lot,  thinking  it  was  his,  a  valuable  house  and  barn 
in  such  manner  that  they  were  part  of  the  realty.  Neither  plaintiff 
nor  Creigh  knew  anything  of  this  at  the  time  of  employing.  With 
the  buildings  the  lot  was  worth  over  $3,000.  Creigh  learned  of  it 
before  making  a  sale,  but  did  not  disclose  it  to  plaintiff.  He  sold  the 
lot  to  defendant  for  $1,150,  the  latter  knowing  of  the  buildings  on 


c-  lot  ai}d  knowing  tha 
the  fact.     Of  the  $] 

_  i.  -■    [_'  1  ci  n ;  I : .  i    I  .  •  ■ '  ' 

te  and  mortga^^- 

'ant  refusk^ii,     :  .- 
.>urt  below  d'  .j- 
the  decision  vi 
rst,  that  it  \\3-    ' 
mg  upon  th- 
;Ung  the  !■  ' 
e  had  pr 
>on  her ; 
■eij^h's  f 


.ed  the  pric-  >  e  that,  had  she 

ihe  fact,  she 
undoubtedly  v, 
of  him,  and  ii 
he  proceeded  t 

ice  in  accori.. 
oc ,  his  selHng  i 
ing  to  her  the  : 

The  tender  \ 
the  fraud  on  pi.. 
(in  effect)  from  a 
eration  of  equity 
that  good  either  to 
•  ;'?r  as  a  condit'-  •' 
the  fraud  c 

ice  of  the  facts  j  .,.1 

judgment  affirmed. 


07.      l^OURT  OF 

APPEAL  from  tht-  "^ 
iiid  a  sale  of  >V(i  ■ 
fendant  ' 
-R 


If.  queiices  oi  ■ 

I  1.  390,  Lord 

him  to  be  appli 
^...^..v.  and  he  could  "-^ 
his  own  proper  m' 
of  condonation  ors 
case  of  mere  debt, 
the  hands  of  the  ; 
divert  the  money  1 
impHed,  of  thr 
cient  evidence. 
The  fact,  if 
appellant  as  hi^  vj._ 
help  the  appellant 
money  so 
rents  ':>'it 


.:don.  "  -,  30  Eng. 

']  said:  chattels, 

jjecific  \)  :  of  the 

..wy  mix  the  'Is  with 

*     *     Unir  vidence 

of  the  clieni,  \-  is  as  a 

ihe  case  at  bar,  nme  to 

:•  a  specific  puij  he  cannot 

)Ose  without  the  ;"cpress  or 

this  case  the  court  a  suffi- 

h  consent  was  given. 

that  the  respondent  had  treated  the 

(.r  rents  collected  by  him,  would  not 

;  collected  under  the  order  to  pay  the 

?.  Wells.  ■   Such  direction  took  these 

ral  dealing  between  the  partifes,  anci 

liar  purpose;  imd,  according  to  the 

<:  clearly  supported  by  the  evidence. 

:e  them  to  such  specific  purpose,  but< 

>   to  his  own  use,   within  1        .r-  .-r,tv,r.n- 

respondent  or  of  Wi 
•  riy  decided  by  the  suijljmi,  coun. 
iient  of  the  Superior  Court  of  Mil 


,rl    Vr 


r]i 


-.'■;    ANOTilEP.   V.    iVi_AKiS,:3. 

MiNNEs<  Minn.  6. 


GiLFILLAN,   ■' 

olis.    One  Crcx^i, 
employed  and  auti 
purchase  it  at  sucl 
as  his  compensati; 
$1,050.     Attheti;; 
reriresented  to  her, 
of  the  lot. 
....,it ;  but  a  thir  1 
constructed  on  her 
in  such  manner  th;;. 
nor  Creigh  knew  anyth 
the  buildings  the  lot  ' 
before  making  a  sale,  i 
lot  to  defendant  for  $ 


'iff  owned  a  lot  of  land  in  Minne 
state  broker,  and  at  his  request  -^ 
o  sell  the  lot  to  any  one  who  wc. 
w-aild  net  her  $:    "       Creigh  to  rect 
.er  he  could  gei  lot  in  exces- 

ying  he  ;  lAaicving  it  to  he  * 
,  that  $1,050  was  the  fair  ; 
nn  supposed  the  lot  to  be  c 
ing  the  adjoining  lot,  had  by  !• 
it  was  his,  a  valuable  house  ar, 
-■-1--  part  of  the  realty.     Neither  \y.- 
int<  of  this  at  the  time  of  employing. 

'■  ^h  leam.' 

if.     He  - 

150,  the  latter  kuo^ing  oi  the  builds- 


GOOD    FAITH.  689 

the  lot  and  knowing  that  Creigh  knew  and  that  plaintiff  was  ignorant 
of  the  fact.  Of  the  $1,150,  $450  was  paid  in  cash — plaintiff  receiv- 
ing $350  and  Creigh  $100 — and  $700  was  secured  by  defendant's 
note  to  plaintiff  and  his  mortgage  on  the  lot.  Upon  learning  of  the 
facts  plaintiff  tendered  to  defendant  the  $350,  with  interest,  and  the 
note  and  mortgage,  and  demanded  a  reconveyance  of  the  lot,  which 
defendant  refused.  The  action  is  to  rescind  the  sale  and  conveyance. 
The  court  below  decided  in  favor  of  plaintiff. 

The  decision  of  the  court  below  proceeds  on  the  propositions : 
First,  that  it  w^as  the  duty  of  Creigh,  upon  learning  of  the  buildings 
being  upon  the  lot,  to  communicate  that  fact  to  plaintiff,  and  that  by 
selHng  the  lot  without  disclosing  that  fact,  at  a  price  which  he  knew 
she  had  put  upon  it  in  ignorance  of  that  fact,  he  committed  a  fraud 
upon  her;  and,  second,  that  defendant,  by  purchasing  wath  notice  of 
Creigh's  fraud,  became  a  party  to  it.  If  the  first  proposition  be  cor- 
rect the  second  follows  as  a  necessary  consequence. 

The  case  turns  upon  whether  it  was  the  duty  of  Creigh,  before 
making  a  sale,  to  disclose  what  he  had  learned  to  his  principal. 
Upon  this  contract  of  agency  my  brethren  are  of  opinion  (though  it 
is  not  mine)  that  when  Creigh  learned  a  fact  affecting  the  value  of 
the  property,  and  of  which  fact  he  knew  she  was  ignorant  when  she 
fixed  the  price,  and  if  he  had  reason  to  believe  that,  had  she  known 
the  fact,  she  would  have  fixed  a  higher  price  (as  in  this  case  she 
undoubtedly  would),  then  good  faith  toward  his  principal  required 
of  him,  and  it  was  his  legal  duty,  to  disclose  the  fact  to  her  before 
he  proceeded  to  sell,  so  that  she  might,  if  so  disposed,  fix  the  selling 
price  in  accordance  wdth  the  actual  condition  of  things.  This  being 
so,  his  selling  upon  the  basis  of  the  price  fixed  first,  without  disclos- 
ing to  her  the  fact  he  had  learned,  was  of  course  a  fraud  on  her. 

The  tender  was  sufficient.  Defendant  and  Creigh  were  parties  to 
the  fraud  on  plaintiff,  by  which  Creigh,  one  of  the  parties,  received 
(in  effect)  from  defendant,  the  other  party  to  it,  $100.  No  consid- 
eration of  equity  or  morality  would  require  of  plaintiff  to  make 
that  good  either  to  Creigh  or  defendant.  All  that  can  be  required  of 
her  as  a  condition  of  her  repudiating  the  transaction  imposed  on  her 
by  the  fraud  of  Creigh  and  defendant  is  to  restore  what  (in  igno- 
rance of  the  facts)  she  received  in  the  transaction. 

Judgment  affirmed. 


CONKEY  V.  BOND. 

1867.     Court  of  Appeals  of  New  York.     36  N.  Y.  427. 

Appeal  from  the  Supreme  Court.     The  action  was  brought  to  re- 
scind a  sale  of  stock  in  the  Oswego  Starch  Company,  made  by  the 
defendant  to  the  plaintiff  in  February,  1857,  and  to  recover  $1,500, 
4-! — Reixhard  Cases. 


690  DUTIES    OF   AGENT    TO   PRINCIPAL. 

the  price  paid  therefor,  and  certain  payments  made  by  the  plaintiff 
as  a  stockholder. 

The  complaint  alleged  the  facts  upon  which  the  plaintiff  claimed 
that  the  sale  was  fraudulent  in  fact  and  in  law.  These  were,  in 
substance,  that  the  defendant  undertook  to  purchase  stock  in  that 
company  as  his  agent,  and  that  he  fraudulently  transferred  his  own 
stock  to  the  plaintiff,  at  a  price  greatly  exceeding  its  value,  under  the 
pretense  that  it  was  the  stock  of  other  parties  which  he  had  pur- 
chased for  the  plaintiff  as  his  agent ;  that  he  concealed  this  fact  from 
the  plaintiff,  and  upon  its  discovery  by  the  latter,  shortly  before  the 
commencement  of  this  suit,  he  refused  to  rescind  the  sale.  The  com- 
plaint further  alleged  that  the  defendant  made  false  representations 
to  the  plaintiff  as  to  the  value  of  the  stock  and  the  financial  condition 
of  the  company,  to  induce  him  to  make  the  purchase. 

The  judge,  before  whom  the  cause  was  tried,  found  that  no  repre- 
sentations were  made  by  the  defendant  which  he  knew  to  be  false, 
and  held,  as  matter  of  law,  that  the  other  facts  established  by  the 
pleadings  and  proofs  did  not  entitle  the  plaintiff  to  relief. 

These  were  substantially  as  follows :  In  January,  1857,  the  de- 
fendant was  the  owner  of  a  number  of  shares  of  the  Oswego  River 
Starch  Company,  and  the  agent  of  the  company  in  the  city  of  New 
York  for  disposing  of  its  manufacture.  In  an  interview  at  that  date 
between  the  parties  in  New  York,  after  a  glowing  account  by  the 
defendant  of  the  business  of  the  concern,  and  of  which  the  plaintiff 
had  previously  no  knowledge  whatever,  the  plaintiff  expressed  a 
desire  to  purchase  some  one  or  two  thousand  dollars'  worth  of  the 
stock,  if  any  was  to  be  obtained  in  the  market,  at  a  price  not  exceed- 
ing $150  per  share.  The  defendant  thereupon  undertook  to  buy 
some,  if  it  could  be  procured,  and  if  successful  he  was  to  apprise  the 
plaintiff,  who  resided  in  the  county  of  Chenango. 

Accordingly,  on  the  31st  of  January,  1857,  he  addressed  a  letter  to 
the  plaintiff,  reiterating  his  opinion  of  the  value  of  the  investment, 
stating  that  he  knew  where  he  could  obtain  the  stock  at  $150  per 
share,  and  asking  defendant  if  he  would  like  it.  He  stated  fur- 
ther that  he  did  not  wish  to  advise  the  plaintiff,  but  if  he  should 
conclude  to  take  the  stock,  he  would  "get  and  send  him  a  certificate'' 
for  that  amount.  The  plaintiff  answered  this  letter  on  the  5th  of 
February,  remarking  that  he  liked  the  statement,  and  was  willing  to 
take  that  amount,  and  desiring  the  defendant  to  obtain  the  certificate, 
when  he  would  at  once  put  him  in  the  funds.  This  letter  the  de- 
fendant acknowledged  on  the  19th  by  a  brief  note,  saying  that  he 
would  write  and  get  the  certificate  as  soon  as  possible,  and  on  the 
25th  of  February  he  wrote  again,  inclosing  the  plaintiff  the  scrip  for 
ten  shares  of  the  stock,  and  adding  in  a  postscript :  "If  we  meet 
with  no  mishap,  I  think  our  stock  will  pay  well ;  I  could  sell  quick  at 
$150  if  I  had  any  to  dispose  of." 

The  plaintiff  remitted  the  $1,500,  and  that  closed  the  transaction. 


not  dip 

•T  the  CO. 

little  ini 

•  ant.  and 

;n  this  v 

!  c  soon  '. " 

a  receiv' 

The  case,  as  decided  in  t- 

':,  is  rep- 

ar  276. 

Porter 

fendant  volimteered  his 

ti  stock  of  the  \ 


-Ml*  ;)M  Ml- 


I,  who  , 
,  .-  assuranct 
I,  and  he  av 
m  to  buy  at  • 
It  hini  a  rv 
.t  he  had  n('.  h.  ted  luidt 

red  was  his      ■  ii. 
There  is  no 
Id.     He  staj       _    . 
jm  concluding  a  =  on 
assent  of  the  |; 
at  once  as  sell', 
v'ner.     Thar 

him  and  ver 
"  latter  to  rc- 

not.  materia.   . 
'.adulent  purpose.      i\\'z  ■'. 
I  authority  fr-      '■ 
s  fiduciary  re 

e,  the  1 

is  rt  rfr 


none  v 


•  court  below,  and  his 
chority.     (34  Barb.  27c 
jry  on  Agency,  S  j !  4  ; 
vone  V.  Fannin;? 


the  pi 


certam  pdyiaeni 


plaint' 


complaint  aileged 
•    -^nle  was  p-'-"   • 
■■        that  the 
(:(>f,:ps.ny  as  hi- 
siock  to  the  pla 
pretense  that  -. 
chased  for  the  ^ 
the  plaintiff,  and  1:1 
commencement  of  il.- 
plaint  further  alleged  1' 
to  the  plaintiff  r 
of  the  companA 


the  facts  upon 
'  "-it  in  fact  aiiv.    .    ,.. . 
it  undertook  to  pur' 


tr  claimed 


i!i£;  S 

P"   ^ 

the  pi: 
stating  that  he 

■■'   -,  and  ask,,;.. 
lat  he  did  i~ 
I'ciade  to  take  tl 
cor  that  arncmnt. 


when  he  would  at 
^"endant  ackno vvi ! ; ' 
would  write  a 
25th  of  Februa.  j.  ' 
ten  shares  of  the  : 
with  no  mishap,  I  ! 
.-150  if  I  had  any  v 

The  plaintiff  remitteii  lii 


f  oilier  parties  iiad  pur- 

nt ;  that  he  cone  ^  fact  from 

ery  by  the  latter,  shortly  before  the 
:  used  to  rescind  the  sale.  The  com- 
.  fendant  made  false  representations 
the  stock  and  the  financial  condition 
make  the  purchase. 

was  tried,  found  that  no  repr 
ant  which  he  knew  to  be  fal-^ 
liiat  the  other  facts  established  by  tl 
-ntillp  ihe  !  Iniiitiff  to  relief. 
Tanuar} 

i!Ui'.ii.:<::r   i.)j    Mi.iicS  of  the   '  .'o  vv.;t^v.'   i\iw 

•ent  of  the  company  in  the  city  of  N<. 
'  cture.     In  an  interview  at  that  date 
'k.  after  a  glowing  account  by  rh** 
•ern,  and  of  which  the  plaint- 
ever,  the  plaintiff  expressed 
thousand  dollars'  worth  of  tl 
ii  Lae  market,  at  a  price  not  excet' 
ndant  thereupon  undertook  to  br 
d  if  successful  h'-  apprise  ti 

nty  f>f  Cbenang'C'. 


d  obtain  the  stock  at  $150  j:. 
would  like  ■♦      '^"f*    stated  fv 


Ivise  the  plaintij 


he  sho; 
■  :\  certificat< 
on  the  5th  1 
was  wi! 
;  the  cen 
;  m  the  letter 

9lh  by  ;-  -  --      .  saying  • 

■ate  as  soon  as  i>ossible,  and 
■"-^'  •  ■•■  ■  *■'-  •  •  -lintiff  the  s<- 
ript:     -If  \v 
i:  v.ili  •.'.  i  could  sell  quick 

^he  transactio! 


GOOD   FAITH.  69 I 

The  defendant  did  not,  in  fact,  purchase  any  stock  from  the  company 
or  from  any  outside  party,  but  caused  ten  shares  of  his  own  stock  to 
be  transferred  to  the  plaintiff.  He  did  not  communicate  this  fact  to 
the  plaintiff  at  any  time  during  the  negotiation,  or  subsequently,  and 
it  was  not  discovered  until  the  following  June.  At  the  time  of  the 
transfer  the  company  was  in  an  embarrassed  condition,  and  the  stock 
was  of  little  intrinsic  value,  though  these  facts  were  unknown  to  the 
defendant,  and  he  supposed  the  representations  to  be  true  which  he 
made  in  this  respect  to  the  plaintiff.  The  affairs  of  the  company 
were  soon  afterward  wound  up,  and  its  effects  passed  into  the  hands 
of  a  receiver. 

The  complaint  was  dismissed;  but  the  judgment  was  reversed  and 
a  new  trial  was  ordered  by  the  General  Term  in  the  fifth  district. 

The  case,  as  decided  in  the  Supreme  Court,  is  reported  in  34  Bar- 
bour 276. 

Porter,  J. — The  fact  that  the  defendant  volunteered  his  agency 
did  not  absolve  him  from  the  duty  of  fidelity,  in  the  relation  of  trust 
and  confidence  which  he  sought  and  assumed.  The  plaintiff  was  in- 
duced to  purchase  at  an  extravagant  premium  stock  of  the  value  of 
which  he  was  ignorant,  on  the  mistaken  representations  of  the  de- 
fendant, who  professed  to  have  none  which  he  was  willing  to  sell. 
This  assurance  very  naturally  disarmed  the  vigilance  of  the  respond- 
ent, and  he  availed  himself  of  the  defendant's  offer  by  authorizing 
him  to  buy  at  the  price  he  named.  The  defendant  did  not  buy,  but 
sent  him  a  certificate  for  the  amount  required,  concealing  the  fact 
that  he  had  not  acted  under  the  authority,  and  that  the  stock  trans- 
ferred was  his  own. 

There  is  no  view  of  the  facts  in  which  the  transaction  can  be  up- 
held. He  stood  in  a  relation  to  his  principal  which  disabled  him 
from  concluding  a  contract  with  himself,  without  the  knowledge  or 
assent  of  the  party  he  assumed  to  represent.  He  undertook  to  act 
at  once  as  seller  and  purchaser.  He  bought  as  agent,  and  sold  as 
owner.  The  ex  parte  bargain,  thus  concluded,  proved  advantageous 
to  him  and  very  unfortunate  for  his  principal.  It  was  the  right  of 
the  latter  to  rescind  it,  on  discovery  of  the  breach  of  confidence.  It 
is  not  material  to  inquire  whether  the  defendant  had  any  actual 
fraudulent  purpose.  The  making  of  a  purchase  from  himself,  with- 
out authority  from  the  plaintiff,  was  a  constructive  fraud,  in  view  of 
the  fiduciary  relation  which  existed  between  the  parties.  In  such  a 
case,  the  law  delivers  the  agent  from  temptation  by  a  presumptio 
juris  et  de  jure,  which  good  intentions  are  unavailing  to  repel.  It  is 
unnecessary  to  state  our  views  more  fully  on  this  question,  as  it  is 
fully  and  ably  discussed  in  the  opinion  delivered  by  Judge  Bacon  in 
the  court  below,  and  his  conclusions  are  abundantly  fortified  by 
authority.  (34  Barb.  276;  Gillett  v.  Peppercorne,  3  Beavan  78; 
Story  on  Agency,  §  214;  Michaud  v.  Girod,  4  How.  (U.  S.)  555; 
Davone  v.  Fanning,  2  Johns.  Ch.  268,  270;  Moore  v.  Moore,  i  Seld. 


692  DUTIES    OF    AGENT    TO   PRINCIPAL. 

262 ;  N.  Y.  Central  Ins.  Co.  v.  Protection  Ins.  Co.,  14  N.  Y.  91 ; 
Gardner  v.  Ogden,  22  id.  347.) 

The  objection  that  this  theory  is  inconsistent  with  that  stated  in 
the  complaint  is  not  sustained  by  the  record.  The  essential  facts  are 
alleged,  and  the  appropriate  relief  is  demanded.  The  fact  that  the 
complaint  alleged  other  matters  which  the  plaintiff  failed  to  estab- 
lish impairs  neither  his  right  nor  his  remedy.  Utile  per  inutile  non 
vitiatur. 

The  order  of  the  Supreme  Court  should  be  affirmed,  with  judg- 
ment absolute  for  the  respondent. 

All  the  judges  concurring.    Judgment  accordingly.^ 


VON  HURTER  v.  SPENGEMAN. 
1864.     Court  of  Chancery  of  New  Jersey.     17  N.  J.  Eq.  185. 

The  Chancellor. — The  bill  alleges  that  in  the  year  1846  Edward 
F.  Von  Hurter  became  seized  in  fee  of  a  lot  in  Jersey  City,  and 
after  mortgaging  the  same  for  $825,  in  January,  i860,  agreed  to 
convey  the  premises  to  George  W.  Korn  for  $3,000.  Having  previ- 
ously conveyed  the  legal  title  to  one  Michael  Lienan,  and  having 
only  an  equitable  title  in  the  premises,  Von  Hurter,  in  order  to  carry 
his  contract  with  Korn  into  effect,  caused  a  bill  to  be  filed  for  the 
foreclosure  of  the  mortgage  and  the  sale  of  the  mortgaged  premises. 
On  the  2d  of  July,  i860,  the  premises  were  sold  under  a  decree  of 
this  court,  and  struck  off  and  conveyed  to  Spengeman,  the  defend- 
ant, for  $2,005.  Spengeman  mortgaged  the  lot  for  $1,000,  and  on 
the  1st  of  September,  i860,  he  conveyed  it  to  Korn,  in  fulfilment  of 
the  contract  of  Von  Hurter,  for  $3,000.  The  mortgage  of  $1,000 
constituted  a  part  of  the  consideration,  and  the  balance  of  $2,000  was 
paid  by  Korn  to  Spengeman.  For  this  sum  the  bill  prays  that  the 
defendant  may  be  decreed  to  account,  as  trustee  for  the  complainant. 

The  bill  further  charges  that  the  complainant  was  the  adopted 
daughter  of  Von  Hurter,  and  had  been  nurtured,  maintained  and 
educated  by  him  and  his  wife  from  her  infancy  until  the  year  i860. 
That  in  May,  i860.  Von  Hurter,  having  lost  his  wife  and  being 
about  to  return  to  Europe,  leaving  the  complainant  in  this  State,  ap- 

^  An  agent  to  sell  cannot  himself  become  the  purchaser.  Bain  v.  Brown,  56 
N.  Y.  285. 

"An  agent  to  purchase  cannot  be  allowed,  except  as  his  principal  assents, 
to  purchase  for  himself.  He  can  acquire  nothing  by  an  adverse  purchase,  even 
though  he  contribute  of  his  own  means  or  credit  to  effect  it;  the  product  will 
belong  to  the  principal  exclusively."  Stewart,  J.,  in  Bergner  v.  Bergner,  219 
Pa.  St.  113,  119.* 

See  also  Geisinger  v.  Beyl,  80  Wis.  443. 


iswer  and  ev 
}  .  :.:i-d   Speng-ein-;' 
minority,  but  that  ' 
collect  all  debt.^  an 
to  him  in  America 
defraying  necx - 
to  educate.  ?u!' 
ity.     The  < : 
the  fund  i- 
expended  '. 
■-••'hich  he 

The  sin  !ant  is  U 

i.OUnt  to  Tl!';    i..  Wh«: 

been  iTuihv  of  .  .ion  of  t: 


which  he  claims  tc 
'"^nefit  of  '^' ■>    • 

ads,  for 

;•  fund  ill 

Pmt  the 
Korn  tlie  title 
the  premises  1 

:ure  a  debt  • 

■  ditors.     Th^ 

'  conveyance 
in  the  mouth  c: 
property  of  ¥■ 
The  title  was  [ 
to  the  defendai 
contract.  The  de 
"  T-'s  title  to  the  pri 

The  defendant  I 
iiiased  by  him  at  t' 
for  her  benefit,  bur 

n  "money,  and  f. 

it  he  prevented  •: 
^ave  the  property 


202 ;  N.  Y.  CenUai  Ins.  Co.  v.  PrC' 
Gardner  v.  Ogden,  22  id.  347.) 

The  objection  that  this  theory  is  inco; 
the  complaint  is  not  sustained  by  the  reaj; 
alietfcd,  and  the  appropriate  relief  is  der 
com]>Jaint  alleged  cV  ^lers  which  the  \j 

lisli  impairs  neither  nor  his  remedy. 

vitiatur. 

The  ordt  ,  urt  should  be 

ment  absolute  for  u 


14  N.  Y.  91 

stated  1 

i...<ii  facts  art 
fact  that  the 
'to  estab 

itifile  ri''' 


Ml 


d.. 


.PENGEMAN. 


1864 


vv- Jersey.     17  N.  J.  Eq.  185. 


On  tht 

this  cou.i,  ,av>w 
ant,  for  $2,005. 
the  ist  of  Septt 
the  contract  of 
constituted  a  par 
paid  by  Korn  t  ■ 
defendant  may  be  d.. 

The  bill  further 
daughter  of  Von  I 
educated  by  him  an. 
That  in  May,  i86t) 
about  to  return  to  Eur 


\i 


■  11  alleges  that  in  the  year  1846  Edwar 
cd  in  fee  of  a*  lot  in  Jersey  Cit>',  an 
for  $825,  in  January,  i860,  agfeed  !■ 
ie  W.  Korn  for  $3,000.     Having  prev 
Mile  to  one  Michael  Lienan,  and  havin; 
h'^  premises,  Von  Hurter,  in  order  to  can 
•t,  caused  a  bill  to  be  filed  for  tl 
.   :hc  sale  of  the  mortgaged  premise 
premises  were  sold  under  a  decree  < 
i  conveyed  to  Spengeman,  the  defen< 
riiortgaged  the  lot  for  $1,000,  and  c 
tnveyed  it  to  Korn,  in  fulfilment  < 
$3,000.     The  mortgage  of  Slo- 
iciation,  and  the  balance  of  $2,00- 
For  this  sum  the  bill  prays  th; 
account,  as  trustee  for  the  complai 
that  the  complainant  was  the  a^!' 
id  had  been  nurtured,  maintaine* 
2  from  her  ir  '  ^        r-di\  the  year 
irter,  haviii  -   wife  and  - 

.,jj^,  leaving  the  conijiiUiuant  in  this  State,  i] 

come  the  purchaser.   Bain  v.  Bro 


■■.■\n  ayci..    u.'   I'urcii.ise  (anii'.':    ue  allow 
to  purchastr  for  himself.    He  can  acquire  p' 
though  he  contribute  of  his  own  means  O'- 
heloilg  to  the  principal  exclusively."    Stew 

Pr, .  Si.   !  I  ■:.   i  lo' 


;ner  v.  1' 


GOOD    FAITH.  693 

pointed  Spengeman  her  guardian,  and  constituted  him  the  trustee  of 
the  fund  in  question  for  her  benefit. 

The  material  allegations  of  the  bill  are  either  admitted  by  the  an- 
swer or  satisfactorily  established  by  the  evidence.  It  appears  from 
the  answer  and  evidence  in  the  cause  that  Von  Hurter  not  only  ap- 
pointed Spengeman  the  guardian  of  the  complainant  during  her 
minority,  but  that  he  also  constituted  him  his  attorney,  with  power  to 
collect  all  debts  and  demands  due  and  owing  or  of  right  belonging 
to  him  in  America,  and  after  satisfying  certain  specified  claims  and 
defraying  necessary  charges  and  expenses,  to  appropriate  the  residue 
to  educate,  support  and  maintain  the  complainant  during  her  minor- 
ity. The  defendant  admits  that  by  virtue  of  this  power,  aside  from 
the  fund  in  question,  he  has  received  over  $800,  and  claims  to  have 
expended  in  pursuance  of  the  trust  vested  in  him  over  $2,400,  for 
which  he  exhibits  his  account. 

The  simple  inquiry  now  is  whether  the  defendant  is  bound  to  ac- 
count to  the  complainant  for  the  fund  in  question.  Whether  he  has 
been  guilty  of  a  breach  of  trust  by  a  misappropriation  of  the  funds  in 
his  hand,  and  whether  the  account  rendered  by  him  is  true  and  fair, 
may  become  subjects  of  inquiry  hereafter.  The  defendant,  by  his 
answer,  does  not  deny  his  liability  to  account  for  a  part  of  the  funds 
placed  in  his  hands  by  Von  Hurter.  He  exhibits  an  account,  by 
which  he  claims  to  have  expended,  in  execution  of  the  trust  for  the 
benefit  of  the  complainant,  not  only  the  amount  of  funds  in  his 
hands,  for  which  he  admits  his  liability,  but  also  a  large  portion  of 
the  fund  in  controversy. 

But  the  defendant  objects,  first,  that  at  the  time  of  the  sale  to 
Korn  the  title  to  the  lot  in  question  was  not  in  Von  Hurter,  but  that 
the  premises  had  previously  been  conveyed  to  Michael  Lienan  to 
secure  a  debt  due  to  him,  and  to  defeat  the  claims  of  Von  Hurter's 
creditors.  There  is  no  evidence  of  fraud  practiced  or  meditated  in 
the  conveyance  to  Lienan.  If  there  was,  the  objection  does  not  lie 
in  the  mouth  of  this  defendant.  The  land  was  sold  to  Korn  as  the 
property  of  Von  Hurter.  The  sale  was  efifected  by  the  defendant. 
The  title  was  perfected  in  Korn,  and  the  purchase  money  was  paid 
to  the  defendant  as  the  agent  of  Von  Hurter,  in  fulfilment  of  that 
contract.  The  defendant  is  estopped  from  questioning  Von  Hur- 
ter's title  to  the  premises,  or  to  the  proceeds  of  the  sale.^ 

The  defendant  further  objects  that  this  property  was  not  pur- 
chased by  him  at  the  sheriff's  sale,  as  trustee  of  the  complainant,  or 
for  her  benefit,  but  that  it  was  purchased  in  his  own  name,  with  his 
own  money,  and  for  his  own  benefit.  It  is  shown  by  the  evidence 
that  he  prevented  competition  at  the  sale  by  stating  that  he  wanted 
to  save  the  property  for  Von  Hurter  or  his  family,  or,  in  the  lan- 
guage of  another  witness,  that  "he  was  going  to  bid  it  in  for  the 

"^  Accord:  Collins  v.  Tillou,  26  Conn.  368.  Compare  Burton  v.  Wilkinson,  18 
Vt.  186. 


694  DUTIES    OF    AGENT   TO    PRINCIPAL. 

benefit  of  Emma,"  the  complainant.  But  aside  from  this  testimony, 
the  defendant  was  not  in  a  position  to  purchase  the  propert}-  for  his 
own  benefit.  He  was  the  recognized  agent  of  Von  Hurter  in  the 
transaction,  and  the  trustee  of  the  fund  for  the  complainant.  He 
negotiated  the  contract  of  sale  to  Korn,  and  after  the  title  had  been 
perfected  by  a  sale  to  him,  under  the  decree  of  this  court,  he  con- 
veyed the  premises  in  pursuance  of  the  contract.  A  purchase  by  an 
agent  or  trustee  in  his  own  name,  while  in  the  performance  of  his 
office,  enures  to  the  benefit  of  his  principal,  or  cestui  que  trust.  2 
Story's  Eq.  Jur.,  §§  121 1,  1211a. 

Again,  it  is  urged  that  the  fund  in  question  was  not  the  property 
of  the  complainant,  and  constituted  no  part  of  the  fund  entrusted  to 
the  defendant  for  her  benefit.  The  objection  is  founded  upon  the 
terms  of  the  deed  from  Von  Hurter,  appointing  Spengeman  guar- 
dian of  the  complainant,  and  conferring  on  him  the  title  to  the  ex- 
clusive charge  of  the  person  and  estate  of  the  complainant.  Neither 
at  that  time,  nor  afterwards,  had  Emma  Von  Hurter,  the  complain- 
ant, anv  estate  in  the  land,  and  it  is  argued,  therefore,  that  under  the 
terms  of  the  deed  she  acquired  none,  either  in  the  land  itself,  or  in 
the  proceeds  of  the  sale. 

It  is  not  perceived  that  the  terms  of  the  deed,  so  far  as  they  relate 
to  the  appointment  of  the  defendant  as  guardian,  can  in  any  wise 
afifect  the  rights  of  the  parties.  The  complainant  was  not  the  daugh- 
ter, but  an  adopted  child  of  Von  Hurter ;  and  for  the  purpose  of  this 
suit,  the  appointment  of  the  guardian  may  be  treated  as  inoperative 
and  void.  But  by  the  same  instrument,  the  defendant  is  constituted 
the  attorney  of  Von  Hurter,  with  power  to  collect  all  debts  and  de- 
mands of  whatever  nature  and  kind,  either  in  law  or  equity,  which 
were  or  might  be  due  and  owing,  or  of  right  belonging  to  Von 
Hurter,  in  America.  At  the  date  of  the  deed  there  was  a  subsisting 
contract  for  the  sale  of  the  land  from  Von  Hurter  to  Korn,  and  an 
engagement  on  the  part  of  the  vendee  to  pay  the  purchase  money  to 
Von  Hurter.  This  constitutes  the  fund  in  question.  By  the  terms 
of  the  deed  the  residue  of  the  moneys  to  be  collected  by  the  defend- 
ant, after  defraying  certain  claims,  and  paying  charges  and  expenses, 
were  to  be  appropriated  by  him  to  the  education,  support  and  main- 
tenance of  the  complainant  till  she  attain  the  age  of  twenty-one 
years.  This  constituted  the  estate  of  the  complainant,  of  which  the 
defendant,  as  her  guardian,  was  to  have  the  custody. 

It  was  suggested  at  the  hearing  that  Lienan  was  a  necessary  party 
to  the  suit,  on  the  ground  that  the  decree  of  foreclosure  was  against 
him,  as  the  owner  of  the  equity  of  redemption,  and  that  the  surplus 
money  arising  from  the  sale  was,  by  the  order  of  this  court,  directed 
to  be  paid  to  Spengeman,  he  having  been  authorized  by  Lienan  to 
receive  the  same.  The  objection  has  been  obviated  by  making 
Lienan  a  party  defendant.  By  his  answer  he  admits  the  equity  of 
the  bill,  and  assents  to  a  decree  in  favor  of  the  complainant. 


■lance  ai. 
ru;-.      i  nerc   •     ' 
T  to  take  an  . 


1868.     SvPRr. 

This  was  r.  h^]\  ^n  -: 
pellee, 


;ber  made  and  e 


disclosure? 
have    donr. 
thereby  pre. 
below  renu 
fend?int  3.}>- 


01  these  lands,  ajnd 
Hme,  he  did  not  mak.. 
reof,  as  it  was  his  duty  to 

.  ;  \     relation    to  ' 

iy  inadequate  prl 

t  the  compla' 

e  further  fat  e 


•  ■  thA.  ^ 


action,  was  th 
'nd  to  that  we 
VVhat  was  ti; 
land  purchase*  1 
seen  the  land, 
statements.     \  . 
swer  to  the  qi. 
answered  that  , 
himself,  for  th.-  , 

'  ar  to  year;  that  ' 
)unds  were  not  tre 
powered  by  Tayloe 


■\vecn  Lir 
pay  the 
.  eral  parties 

■<•,•         "Vorri. 


oy4 


dian  of  the 

'  lant,  ail' 

elusive  chai  :• 

p(-rc;np 

at  that  time,  uc 

ant,  anv  r-inu-  r^ 

terms  o 

the  '  '-' 

,     the  conjplainanL. 
IS  not  in  a  position  t<^  ^ 
own  benefit.     He  was  the  recognized  agent  ■  r  in  th' 

tran'^nction,  and  the  trustee  of  the  fund  for  int.     H 

nee   .*'  ited  the  contract  of  sale  to  Korn,  and  v.  had  bee. 

d  by  a  sale  f  nder  the  de:  • 

]ie  premises  i  ice  of  the  a-' 

ij.uiL  or  trustee  v,  while  m  ihe  ^; 

.iltice,  enures  to  ^  principal,  or  r 

Stor3''s  Eq.  Jur.,  §fi;  1211,  12.11a. 

Ag-ain,  it  is  urg-ed  that  the  fund  in  question 
of  the  complainant,  and  constituted  no  part  of  the  fur.- 
the  defendant  for  her  benefit.     The  objection  is  fouiu wj   .:,   n,  . 
terms  of  the  deed  from  Von  Hurter,  appointing-.  Spengeman  gua' 

ng  on  him  the  title  to  the  e> 

.e  of  the  complainant.    Neith( 

Km  ma  Von  Hurter,  the  complair 

;s  argued,  therefore,  that  under  tl^ 

Mone,  either  in  the  land  itself,  or  i^ 


the  deed,  so  far  as  thev  relai 
ioijQatit  as  guardian,  can  in 
The  complainant  wa^  not  > 
on  Hurter;  and  for  i'  st  <ji  llr 

guardian  may  be  tre?  joperativ 

nstrument,  the  defendant  is  constitute 
with  power  to  collect  all  debts  and  d. 
vi  kind,  either  in  law  or  equity,  -whk' 
■  irg,  or  of  right  belonging  to  V<  • 
of  the  deed  there  was  a  subsistii 
'■''<;  Von  Hurter  to  Korn,  and  r< 
;  to  pay  the  purchase  money  ■ 
nd  in  question.     !'\'  the  . 
J  ?  to  be  co'lertcv'  '  y  the  dt  ' 
^,  and  payin}.>  ind  exj.. 

o  the  educati  ort  and  ;;;.:; 

she  attain   r  .>f  twenty-or 

■e  of  the  con  ;-  .i.nr.ni,  of  which  t" 
:>  have  the  <-u:'lv>dv. 
that  Li. 
■  v;  decree  • 
iity  of  redemption,  aur.  tiiat  the  s- 
was,  by  the  nrdei  .v  tiiis  court,  dir  .. 
c.  having  bee  ized  by  Lienan  " 

■ection   has   [..         M.viated   by   makin. 
By  his  answer  he  admits  the  equity  r 


aa<l  void.     But  i 
the  attorney  of  \  o: 
mands  of  whatever 
were  or  m'r^  '   '" 
Hurter,  in 

CO'- 


r  defrar 
o  be  appr 

Lance  of  the 
years.     This  cc 
deter.dant,  as  h'- 

It:  was  svi 
to  The  siiil. 
him,  as  the  owner  c 
money  arising  from 
to  be  paid  to  Spem 
receive  the  same. 
Lienan  a  party  def'. 


the  bill,  and  assents  to  a  atcree  in  favor  of  th.e  complainant. 


GOOD    FAITH.  695 

The  complainant  has  not  been  furnished  with  the  funds  necessary 
for  her  maintenance  and  education.  She  is  entitled  to  the  relief 
prayed  for.  There  must  be  a  decree  accordingly,  and  a  reference  to 
a  master  to  take  and  state  the  account. 


NORRIS  AND  FOLTZ  v.  TAYLOE. 
1868.     Supreme  Court  of  Illinois.     49  111.  17. 

This  was  a  bill  in  chancery,  filed  in  the  court  below  by  the  ap- 
pellee, against  the  appellants,  to  set  aside  two  deeds,  one  made  and 
executed  by  the  appellee  to  the  appellant,  Norris,  for  certain  lands 
situated  in  Jo  Daviess  county,  and  the  other  made  and  executed  by 
the  appellant,  Norris,  to  his  co-appellant,  Foltz,  for  an  undivided 
half  of  the  same  lands,  and  also  for  an  accounting  as  to  the  mineral 
rents  and  mineral  taken  from  the  lands,  both  before  and  after  the 
conveyance  to  Norris.  The  bill  alleges  that  appellant,  Norris,  was 
the  agent  of  appellee  in  the  management  of  these  lands,  and  that  in 
his  negotiation  for  the  purchase  of  the  same,  he  did  not  make  such 
disclosures  in  reference  to  the  value  thereof,  as  it  was  his  duty  to 
have  done,  he  occupying  a  fiduciary  relation  to  appellee,  and 
thereby  procured  the  same  at  a  greatly  inadequate  price.  The  court 
below  rendered  a  decree  in  favor  of  the  complainant,  and  the  de- 
fendant appealed  to  this  court.  The  further  facts  in  this  case  are 
stated  in  the  opinion. 

Breese,  C.  J. — Unless  it  is  established  that  Varnell,  in  this  trans- 
action, was  the  agent  of  appellant,  Norris,  this  decree  cannot  stand, 
and  to  that  we  have  principally  directed  our  attention. 

What  was  the  position  of  these  parties  ?  Tayloe,  the  owner  of  the 
land  purchased  for  him  by  Varnell  was  a  non-resident,  had  never 
seen  the  land,  and  knew  nothing  about  it,  save  through  Varnell's 
statements.  Varnell  became,  thereafter,  Tayloe's  agent,  and  in  an- 
swer to  the  question,  "What  was  the  scope  of  your  agency?"  he 
answered  that  the  list  of  lands  was  placed  in  his  hands  by  Tayloe 
himself,  for  the  purpose  of  seeing  that  the  taxes  were  paid  from 
year  to  year;  that  he  also  had  a  general  supervision,  to  see  that  the 
lands  were  not  trespassed  upon,  and  for  this  purpose  he  was  em- 
powered by  Tayloe  to  employ  other  parties  in  other  counties. 

On  a  visit  to  these  lands  in  the  latter  part  of  the  spring  of  1863, 
with  appellant,  Norris,  he  adjusted  some  difficulties  that  had  arisen 
between  the  miners  on  the  land,  and  made  arrangements  with  Norris 
to  pay  the  taxes  and  look  after  the  land.  At  this  time  there  were 
several  parties  digging  and  prospecting  on  the  land  when  he  was 
there.     Norris  himself  was  then  there,  digging  for  lead  ore.     Var- 


6g6  DUTIES    OF    AGENT    TO    PRINCIPAL. 

nell  left  the  lands  in  charge  of  Norris,  authorizing  him  to  take  gen- 
eral supervision  of  them,  and  collect  the  rents  as  they  might  accrue. 
He  gave  no  special  power  to  Norris  to  grant  leases,  but  told  the 
parties,  in  the  presence  of  Norris,  upon  the  ground,  that  he,  Norris, 
w^ould  have  charge  and  control  of  the  land. 

Varnell  spent  two  or  three  days  while  on  this  visit  at  the  residence 
of  Norris,  at  Galena,  and  in  the  mines,  during  which  Norris  pro- 
posed to  purchase  the  lands  for  one  thousand  dollars,  and  in  addition 
to  that  he  proposed  to  purchase  jointly  with  Varnell,  which  Varnell 
declined  on  the  ground  he  had  no  money,  upon  which  Norris  pro- 
posed to  advance  the  money,  charging  Varnell  interest  upon  it  until 
he  could  repay  it.  Varnell  proposed  then  to  investigate  the  matter, 
and  after  seeing  Tayloe,  at  Washington  City,  the  matter  was  then 
dropped.  He  afterwards  received  a  letter  from  Norris,  relating  to 
the  same  subject. 

What  followed  these  preliminaries  is  found  in  the  letters  in  the 
record.  The  first  is  the  letter  from  Varnell  to  Norris,  dated  Mt. 
Vernon,  February  12,  1866,  in  which  Varnell  asks  Norris  if  he  will 
attend  to  the  taxes  of  1865  on  this  land,  and  asks  him  how  he  pro- 
gresses with  the  lead  mines,  asks  him  what  he  will  give  for  the  land, 
and  then  says :  "I  think  I  can  buy  it  at  a  reasonable  rate  for  you, 
or  any  one  that  may  want.  Please  let  me  hear  from  you  as  soon  as 
possible." 

Here  was  a  plain  proposition  to  Norris,  by  Varnell,  to  become 
Norris's  agent  to  buy  this  land.  Was  this  offer  accepted  by  Norris  ? 
On  the  15th  of  February,  Varnell  writes  to  Norris  for  an  offer  for 
the  whole  tract,  having  before  enclosed  him  Foltz's  letter  proposing 
to  purchase  the  "forty."  He  says  Norris  shall  have  the  refusal,  and 
wants  him  to  be  liberal,  and  offer  at  once  every  dollar  he  feels  like 
giving  for  the  whole  tract,  and  trusts  he  can  make  a  big  strike  and 
get  thousands  of  dollars'  worth  from  it,  and  then  asks,  merely  for 
his  personal  gratification,  how  much  mineral  has  been  taken  from 
the  land  since  the  first  digging  commenced. 

On  the  14th  of  March,  Norris  answered  this  letter,  and  proposed 
to  give  two  thousand  dollars  for  the  land  and  the  accrued  rents, 
which  then  amounted  to  more  than  eight  hundred  dollars,  but  which 
he  represented  at  four  or  six  hundred  dollars,  though  no  doubt 
innocently. 

To  this,  on  the  23d  of  Alarch,  Varnell  responded  by  letter  from 
Washington  City,  that  the  proposition  is  accepted.  He  asks  Norris 
to  send  him  the  names  of  the  parties,  and  the  exact  description  of 
the  land,  and  when  he  returns  to  this  State,  on  the  loth  of  April,  he 
will  bring  the  deed  with  him,  all  right,  duly  executed,  ready  for  de- 
livery, and  tells  Norris  he  can  go  on  as  there  will  be  no  difficulty. 

On  the  3d  of  April,  1866,  Varnell  again  writes  Norris  from 
Washington  City,  acknowledging  receipt  of  a  letter  of  March  27, 
from  Norris,  containing  a  description  of  the  lands,  and  says  he  will 


.f   COIiSK 

1  the  latu 
it  I  make  1 
.nia  until  Sa" 
.  by  that  tj'- 
o  well  V. 
lor   to    A: 
i'lmk  he  wonI<.i.  \\. 
^Teat  importance' 
ought  to  make  b'- 
sell  at  $i.5fX).  ;''  - 
about  it.     I  '*: 
and  ouqrhit  to  i 
action  others  . 
the  pr' 

the  age  111.  I  r 
statement   i  ; 
shows,  ac; 
for  him,  i'v. 
shown  by  his 
agent  to  sr" 
by  him  in 
ris.     He  I 
and  to  th 
X'amell  was  ii  ' 
to  purchase. 

What,  then, 
mg  in  a  quasi 
an  agent  of  N 
entrusted  to  h:: 
^;' nestv  that  \ 
ty,  shou 
.  sed,  by  ' 

the  land,  ai 
^ays,  "it  was  a  n.j 

At  the  time  the 
written,  pr 
term  in  ed  ;, 
made  by  the  c 
days  after  the 
that  a  rich  lode,  n. 
in  fact  on  i<    "■^--■'' 
was  writtt 


f.g. 


nniK' 


the  lands  in  charge  ot  iNorr 
'sion  of  fhem,  and  collect 
special  power  to  Norri; 
n  the  presence  of  Norris,  upoti  inc 
ive  charge  and  control  of  the  land.    ' 
A\  spent  two  or  three  days  while  c 
:  IS,  at  Galena,  and  in  the  mines,  <  i  , 
posed  to  purchase  the  lands  for  one  thousand 
to  that  he  proposed  to  purchase  jointly  with 
declined  on  the  ground  he  had  no  money,  U] 


«old  th 


posed  to  advance  the  mr'^ 
he  could  repay  it.     Var)' 
and  after  seeing  Ta^  ' 
dropped.     He  after- 
the  same  su  >  ' 

What  fo|: 
record. 
Ver— 
att. 


On 

the  w  ' 
to  pure: 
wants  hun  i 
giving  for  ti 
get  thousands  c 
liis  personal  gra 

•  land  since  tli . 

On  the  14th  c 
to  ftiv^  two  thi>i 
which  then  amor, 
he  represented  c;; 
innocently. 

To  this,  on  the  2,v 
Washington  City,  th; 
to  send  him  the  natv 
the  land,  and  when  ]; 


Varnell  in 
then  to  inve 
iiuigton  City,  the  matte/  \\.\:   Liic: 
.   d  a  letter  from  Norris,  relating  t; 

li  iciries  is  found  in  the  letters  in  tli- 

rom  Varnell  to  Norris,  dated  Ml 

.    viiich  .Varnell  asks  Norris  if  he  will 

n  this  land,  and  asks  him  how  he  pre 

'     !iim  what  he  will  give  for  the  land 

.  uy  it  at  a  reasonable  rale  for  you 

!  'kase  let  me  hear  from  you  as  soon  a^ 

to  Norris,  by  Varnell,  to  beconiv 

Was  this  oflfer  accepted  by  Norris . 

rnell  writes  to  Norris  for  an  oflfer  f o  ■ 

'^closed  him  Foltz's  letter  proposin.;. 

-  Norris  shall  have  the  refusal,  an* 

r  at  once  every  dollar  he  feels  likv 

;  rusts  he  can  make  a  big  strike  an- 

■rom  it,  and  then  asks,  merely  fo 


nch   iniiv:ir;.1    nas  ^een 


-  the  land 
ihan  eight  1. 
K  hundred 


-ch. 


and 


■ken  from 

oroposed 
cd   rents 

Dut  whicl. 

no  doub^ 


Varnell  responded  by  letter  fron 
-'tion  is  accepted.     He  asks  Norri ^ 
.  arties.  and  th«'  <'■-■■'  f  description  ot 
-  to  this  State,  01  :  of  April,  he 

all  right,  duly  exc    ,.v<,,,  ready  for  de 
livery,  and  tells  Norris  he  can  go  on  as  there  will  be  no  difficulty. 
On  the  3d  of  April,    1866,  Varn^ ''  '  ■    writes   Norris   t 

Washington  City,  acknowledging  rec  letter  of  Marcb 

from  Norris,  containing  a  description  ot  liie  lands,  and  says  he  will 


will  bring  the  deed  wna 


GOOD    FAITH.  697 

send  on  the  deed  as  directed  in  a  few  days — that  Mrs.  Tayloe  was 
sick,  but  would  be  all  right  in  a  day  or  so.  He  further  says  he  has 
put  the  consideration  at  $1,500.  being  the  amount  at  which  Norris 
valued  the  land,  and  says  he  had  authority  to  sell  at  $1,500,  but  "the 
amount  I  make  I  desire  no  one  to  know."  He  says  he  will  be  in 
Virginia  until  Saturday,  when  he  will  start  the  deed,  which  will  be 
ready  by  that  time ;  is  glad  Norris  gets  the  land,  and  truly  hopes  he 
may  do  well  with  it.  In  a  nofa  bene  to  this  letter,  he  says :  "I  said 
nothing  to  Mr.  T.  (Tayloe)  especially  of  the  late  strike.  Don't 
think  he  would  have  sold  if  I  did,  but  I  really  don't  deem  it  of  any 
great  importance.  We  have  spent  a  good  deal  on  the  land,  and 
ought  to  make  something  out  of  it.  Though  he  authorised  me  to 
sell  at  $1,500,  if  he  knew  I  obtained  $2,000  he  might  not  feel  kindly 
about  it.  I  have  had  considerable  trouble  and  loss  of  time  with, 
and  ought  to  make  something  out  of  it,  and  do  not  deem  the  trans- 
action otherwise  than  as  perfectly  fair.  I  would  be  willing  to  give 
the  price  for  the  land  myself,  but  I  know  he  would  not  sell  to  me." 

There  is  nothing  appearing  in  the  record  to  show  that  Varnell  was 
the  agent  of  Tayloe  to  bargain  away  this  land,  except  Varnell's 
statement  in  the  above  letter,  nor  did  he,  as  this  correspondence 
shows,  act  as  such,  but  as  the  agent  of  Norris  to  purchase  the  land 
for  him,  he,  Varnell,  having  volunteered  to  be  such  agent,  as  is 
shown  by  his  letter  of  February  12,  1866.  He  was  not  Tayloe's 
agent  to  sell,  but  had  a  supervisory  control  over  the  lands,  as  stated 
by  him  in  his  deposition.  The  same  position  was  occupied  by  Nor- 
ris. He  had  full  charge  of  the  land,  and  granted  privileges  in  it, 
and  to  that  extent  was  the  agent  of  Tayloe.  Norris  well  knew 
Varnell  was  not  the  agent  to  sell  the  land,  but  he  made  him  his  agent 
to  purchase. 

What,  then,  was  Varnell's  duty  under  the  circumstances?  Stand- 
ing in  a  quasi  confidential  relation  to  Tayloe,  and  at  the  same  time 
an  agent  of  Norris  to  purchase  valuable  property  which  Tayloe  had 
entrusted  to  him,  it  seems  one  of  the  plainest  dictates  of  justice  and 
honesty  that  Varnell,  when  negotiating  with  Tayloe  to  purchase  the 
property,  should  have  communicated  to  him  all  the  knowledge  he 
possessed,  by  the  letters  of  Norris,  of  the  supposed  mineral  wealth 
of  the  land,  all  of  which  he  studiously  withheld,  believing,  as  he 
says,  "it  was  a  matter  of  no  great  importance." 

At  the  time  the  letter  of  March  14,  by  Norris  to  Varnell,  was 
written,  proposing  to  give  $2,000  for  the  land,  the  survey,  which  de- 
termined most  important  interests,  had  not  been  made,  but  it  was 
made  by  the  county  surveyor  about  the  middle  of  March,  or  a  few 
days  after  the  letter  of  the  14th.  That  survey  developed  the  fact 
that  a  rich  lode,  not  before  certainly  known  to  be  on  that  land,  was 
in  fact  on  it,  greatly  enhancing  its  value,  and  even  when  the  letter 
was  written,  sufficient  developments  had  been  made  to  justify  the 
belief  that  the  tract  contained  rich  diggings,  as  in  the  months  of 


698  DUTIES    OF    AGENT    TO    PRINCIPAL. 

January  up  to  the  23d  of  March,  about  90,000  pounds  of  mineral, 
and  up  to  April  ist,  about  140,000  pounds  were  raised  on  it,  so  that 
it  is  very  evident,  the  realities  and  the  prospect  together  made  the 
land  immensely  more  valuable  than  the  price  offered  and  received, 
and  these  facts  were  known  only  to  one  of  the  contracting  parties, 
Norris,  and  he  acting  and  standing  in  a  fiduciarj^  relation  to  the 
owner,  of  whom,  through  Varnell,  he  purchased  at  a  greatly  in- 
adequate price,  which,  on  Varnell's  own  admission,  Tayloe  would 
not  have  accepted  had  he  known  the  true  state  of  the  facts. 

We  cannot  but  think  it  was  Norris's  duty,  before  he  permitted  his 
offer  of  March  14  to  go  before  Mr.  Tayloe,  to  have  communicated, 
fully,  the  result  of  the  survey  which  was  then  in  the  process  of  exe- 
cution, and  which  he  could  have  done  in  his  letter  of  March  27.  By 
accepting  the  position  of  an  agent  to  take  charge  of  this  land,  collect 
the  rents  and  royalty,  and  pay  the  taxes,  a  fiduciary  relation  was 
thus  created  in  regard  to  whatever  related  to  the  land.  Confidence 
was  reposed  that  he  would  act  in  all  things  for  the  interests  of  his 
constituent.  Good  faith  required  he  should  have  communicated 
these  important  facts,  developed  by  the  survey,  before  he  permitted 
his  constituent  to  sell.  But  even  that  which  was  certainly  known, 
that  it  was  mineral  land  with  flattering  prospects,  was  not  communi- 
cated by  Varnell,  his  agent,  to  Tayloe,  their  common  constituent. 

As  for  the  other  appellant,  Foltz,  it  is  very  evident  he  had  full 
knowledge  of  what  w^as  going  on.  Substantially  he  was  a  party 
with  Norris  in  purchasing. 

We  fail  to  perceive  any  error  in  the  record,  and  must  affirm  the 
decree. 

Decree  affirmed.^ 


ROCHESTER  v.  LEVERING. 
1885.     Supreme  Court  of  Indiana.     104  Ind.  562. 

Mitchell,  J. — A  complaint  filed  by  John  Levering  against  Made- 
line Rochester,  and  a  cross-complaint  filed  by  the  latter  against 
Levering,  constitute  the  basis  of  the  controversy  exhibited  in  the 
record  in  this  case. 

The  complaint  seeks  a  recovery  upon  an  account  exhibited  with  it, 
for  services  rendered,  money  loaned,  paid  out  and  expended  by  the 
plaintiff  at  the  defendant's  instance  and  request.  The  cross-com- 
plaint charges  that  from  the  year  1862,  down  to  and  including  the 
year  1878,  the  plaintiff.  Levering,  was  in  the  relation  of  agent  and 

^  An  agent,  for  the  transmission  of  money  is  liable  for  any  loss  occurring 
through  his  failure  to  notify  his  principal  of  the  manner  of  transmission.  Clark 
V.  Bank  of  Wheeling,  17  Pa.  St.  322. 


:ol  and  niun;.iC";  r: 


.   tss  a  large 
•  lut  ner. 

Upon  i 
•cts,   witi, 

itl)  the 
'  epted  to  an: 
respectively,  < 

The  cor. 
period  of 
adjusl 
That  i 
findin 


the  r 

agent?,  _  

south  sidt.  -4.,cxx),  i' 

About  th<  ff  ^'v 

acres  for  .'^ 

ering    ' 

remaii 

would  giv( 

to  find  a  p 

by  her,  wt; 

but  the  hig.v 

Ball.     The  inv 

'ts  main  valiie 

its  with  a  vi^'  • 
^tate  the  real 
hereinafter  ni:( 
found  to  be  $4  ; 
It  is  found  ii:.: 

.evering  was  acii 
and  while  acting  r. 
proposed  to  buy  i 


liicntioued,  vv 
proceeds  of  Sin 
He  represented 


1st,  about  i.i 
ident,  the  realities  and  ine  j 


^ely  more  v;!:i'  '>' 
'Cts  were 
•  i.ai  he  ■'■■* 
of  who- 
..■.c4i:ate  price.. 
nut  have  accept. 

We  cannot  but  tii' 

offe:   .  •'  ^[arch  14  l 

ful"  suit  of  the  survey 

'•■  .v..  vvhich  he  ■■r,n]r  \.: 

g  the  positic 
ru^  ,  cziis  and  r 
thus  created  in 

W2 


than  the  1 
to  one 
ling  in    • 
ell,  he  1. 

'.niell's 
wm  the  ' 


wiiich  was  then  in 


^^  ,T,.iip  in  his  letter  ;  .  .......  _, 

.ake  charge  of  this  land,  coUee 
■-^^  a  fiduciary  relation  vr^ 
1  to  the  land.     Confiden. 
i  all  things  for  the  interests  •'  ' 
d   he   should   have   cojnmur 
jy  the  survey,  before  he  perr 
.    .  '.1  that  which  was  certainly  kr.  _ 
flattering  prospects,  was  not  commun- 
■  )  Tayloe,  their  c'"   ■'  '^"^  -constituent. 
I.  Foltz,  it  is  vc  it  he  had  fii' 

Substanuiiiiy  ne  was  a  pan 

,  ior  in  the  record,  and  mui^t  affirm  tli 


1S85.       SUPE. 


NA. 


10- 


Mitchell,  J. — A 
line  Rochester,  and 
Levering,  constitute  ui'. 
record  in  this  case. 

The  complaint  seeks  • 
fur  j^TVice?  rendered,  11  ■ 
plaintiff  at  the  defendant,^   distance 
plaint  ciiarges  that  from  the  year  i;i 
year  1878,  the  plaintiff,  Levering,  was 

'  An  ag<-nt,  for 
i.h rough  h";  faiiurt 
•     Bank  of  Wheeling.  17  k'.-. 


d  by  John  Levering  against  Made 
plaint  filed  by  the   latter  again - 

'•  •'   -  "'■- -  hibited  i"  ^ 


•d  wkn 
-d  by  ti 


tion  of  agent  ari 


GOOD   FAITH.  699 

attorney  to  the  defendant,  Mrs.  Rochester,  having  in  charge  the  con- 
trol and  management  of  all  her  property  and  business,  and  that  while 
in  such  relation  he  so  managed  her  affairs  and  business  and  dealt 
with  her  as  that  upon  an  accounting  and  proper  adjustment  of  their 
business  a  large  sum  of  money,  amounting  to  over  $20,000,  would  be 
due  her. 

Upon  issues  made  the  case  was  heard  and  a  special  finding  of 
facts,  with  conclusions  of  law  stated  thereon,  filed  by  the  court. 
With  the  facts  as  found,  both  parties  are  content,  while  each  ex- 
cepted to  and  are  yet,  by  assignment  of  errors  and  cross-errors, 
respectively,  contending  against  some  of  the  conclusions  of  law. 

The  controversy  involves  a  great  variety  of  transactions,  covers  a 
period  of  more  than  eighteen  years  of  business,  and  required  the 
adjustment  of  an  account  aggregating  but  little  short  of  $80,000. 
That  it  was  reduced  to  the  order  and  symmetry  in  which  the  special 
findings  present  it,  is  abundant  evidence  that  the  case  was  tried  with 
extraordinary  care  and  ability. 

The  facts  upon  which  the  first  conclusion  of  law  is  based  are,  in 
substance,  as  follows :  Mrs.  Rochester,  in  addition  to  a  large 
amount  of  other  property,  was  the  owner  of  thirty  acres  of  land  in 
the  extreme  south  part  of  the  city  of  Lafayette.  Through  her 
agents,  Mr.  Levering  and  his  brother,  she  sold  fifteen  acres  off  the 
south  side  of  this  tract  to  Owen  Ball  for  $4,000,  in  August,  1865. 
About  the  same  time  Ball  offered  to  purchase  the  remaining  fifteen 
acres  for  $3,500.  This  was  refused.  The  appellant  and  Mr.  Lev- 
ering about  that  time  went  to  Ball  and  solicited  him  to  purchase  the 
remaining  fifteen  acres  for  $4,000.  Ball  again  offered  $3,500,  and 
would  give  no  more.  Mrs.  Rochester  then  requested  the  appellee 
to  find  a  purchaser  for  this  tract  and  other  unimproved  lands  owned 
by  her,  which  she  was  anxious  to  sell.  This  the  appellee  tried  to  do, 
but  the  highest  offer  made  for  the  tract  in  question  was  $3,500  by 
Ball.  The  tract  was  unfenced,  unimproved  and  unproductive,  and 
its  main  value  was  probable  and  prospective  for  platting  into  town 
lots  with  a  view  to  selling  it  in  lots.  The  court  finds  it  difficult  to 
state  the  real  value  of  the  tract  at  the  time  of  the  sale  to  Levering, 
hereinafter  mentioned,  but  its  approximate  value  at  that  time  was 
found  to  be  $4,500. 

It  is  found  that  on  the  19th  day  of  February,  1869,  while  ^Iv. 
Levering  was  acting  as  the  confidential  agent  of  Mrs.  Rochester, 
and  while  acting  as  her  agent  to  sell  the  tract  of  land  mentioned,  he 
proposed  to  buy  the  land  from  her  himself,  at  the  price  of  four 
thousand  dollars,  agreeing  that  he  would  lay  it  out  into  lots,  as  an 
addition  to  the  city  of  Lafayette,  and  that  he  would  pay  the  price 
mentioned,  with  six  per  cent,  interest,  in  money  or  notes,  out  of  the 
proceeds  of  sales  of  the  lots. 

He  represented  to  her  that,  in  his  opinion,  it  would  be  better  for 
her  to  sell  it  to  him  than  to  hold  it.     It  is  found  by  the  court  that  he 


yOO  DUTIES    OF   AGENT   TO    PRINCIPAL. 

fully  and  correctly  communicated  to  her  all  the  facts  of  which  he  had 
knowledge  about  the  tract  of  land  and  its  value,  and  that  he  made  no 
misrepresentation,  nor  did  he  conceal  from  her  any  fact  concerning 
the  land  or  its  value,  and  that  the  price  offered,  so  far  as  could  then 
be  known,  was  not  manifestly  inadequate.  Mrs.  Rochester  had  full 
confidence  in  the  judgment  of  her  agent,  and  relied  upon  his  advice 
as  to  the  propriety  of  making  the  sale,  and  concerning  the  value  of 
the  land. 

Under  these  circumstances,  and  without  consulting  any  person 
other  than  Mr.  Levering,  the  appellant  sold  the  tract  to  him  on  the 
terms  proposed,  and  executed  to  him  a  warranty  deed  therefor.  As 
evidence  of  his  obligation  to  her  for  the  purchase-price,  he  executed 
an  instrument  of  writing  signed  by  him,  in  which  the  purchase  of 
the  land  is  recited,  and  in  which  his  agreement  to  pay  is  stated  as 
follows :  "I  am  to  lay  out  said  land  into  town  lots,  as  an  addition  to 
the  city  of  Lafayette,  and  will  pay  to  said  Madeline  Rochester,  out 
of  the  proceeds  of  the  sales  of  said  lots,  in  money  or  promissory 
notes  taken,  the  sum  of  four  thousand  dollars,  with  interest  at  the 
rate  of  six  per  cent." 

It  is  found  that  the  tract  was  laid  out  into  sixty-nine  town  lots,  in 
the  month  of  April,  1869;  that  a  plat  was  filed,  calling  it  "John 
Levering's  addition  to  Lafayette,"  and  that  from  May  28th,  1869,  to 
August  9th,  1874,  Levering  sold  thirty-nine  lots,  receiving  for  prin- 
cipal and  interest  from  such  sales,  in  the  aggregate,  $9,010.85,  leav- 
ing thirty  lots  still  unsold. 

The  purchase-money  was  never  actually  paid  by  Levering,  but  in 
a  settlement  had  on  the  15th  day  of  June,  1874,  which  was  after- 
wards found  to  be  erroneous.  Levering  credited  Mrs.  Rochester's 
account  with  the  $4,000  and  the  accrued  interest  thereon,  according 
to  the  contract  as  modified.  The  appellant  paid  out  about  $600  for 
the  improvement  of  Fourth  street,  which  ran  along  or  through  the 
tract;  but  this  sum  was  paid  by  using  a  judgment,  which  belonged 
to  Mrs.  Rochester,  against  one  Austin.  This  judgment  was  used  by 
Mr.  Levering,  upon  an  agreement  with  Mrs.  Rochester  that  he 
would  change  his  obligation  to  her  so  as  to  allow  ten  per  cent,  in- 
terest on  the  $4,000  purchase-money  for  the  land,  instead  of  six. 
This  was  accordingly  done. 

The  court  also  found  that  Levering  had  a  well  appointed  and  cen- 
trally located  office  in  the  city  of  Lafayette,  with  two  or  three  clerks 
constantly  in  attendance ;  that  by  reason  of  these  facilities,  and  his 
extensive  business  connections  and  his  energy  and  industry,  he  had 
great  advantages  in  effecting  sales  of  real  estate ;  that  soon  after  the 
purchase  from  Mrs.  Rochester,  Fourth  street,  lying  along  the  east 
line  of  the  addition,  laid  out  of  the  land  purchased,  was  improved, 
and  on  that  account  lots  in  that  locality  became  more  desirable ;  that 
many  of  them  were  sold  at  prices  largely  in  excess  of  the  price  paid 
for  the  land  in  bulk.     The  court  finds  it  impossible  to  state  how 


-t  some  1 
fouiui  that  Mrs. 
'•■■•    -'erienced  '"' 
;  that  < 
.  ir.  Leveri!  ,^ 
Otis  to  her,  and 
her  property 
always  open 
'lem. 
The  fir- 
1  the  la- 


•nu,  a. 
The 


ustee  or  .■ihor  \, 

hich,  in  •■ 

.  rectly  r - 

>^  relevant  t.  .;: 

'operty  earn-  i,  -•' 

om  hiin- 

£  the  pr- 

:  ppositions  intiexibly  ■ 
The  facts  frsnnd  >' 

>'/hile  they  disclose  :. 

laracter  bet\ 

:ent  of  the  h 
cerned, they  a; 
he  did  not,  in 

irticular  tract  o 
,-ciid  Madeline  wa- 
unimproved  land 
therefor,  which  hi 
confidential  accent 
acre  tract,  df 
preted,  this  n  ■ 

isiness  agent  to  t 

irchaser  for  the  1... 

\i^  as  agent  to  sell  he  jiroi  ■ 
1  and  negotiate  with  lie:   ; 

>ntroversy. 
The  case  is  one  arising  o 


,  miTiunicated  to  her  all  th< 
■)oui  luc  tract  of  land  and  its  valut 
ation,  nor  did  he  conceal  from  h.: 

iiic  !,.  ui  or  its  value,  and  that  the  price  oT 
l)e  i- f.own,  was  not  m?r>''*'f"=t1y  inadequate 
corinrlence  in  the  ju  ■'  agent,  auu 

a^^  to  the  proivricls   ■  s.'de.  aivl  c 

the.  land. 

Under  thc.->'j   v  ■i^mw.-i.ii. ^ >..-.,  .,,.^.;    «......-..■.  v. 

other  than  Mr.  Levering:,  the  appellant  sold  the  tract 


h  he  ha< 


Liien 

!    ttdl 


terms  proposed, 
evidence  of  his  v 
an  instrument  oi 


A^ 


the 

iijV:. 

the 
o  f 
no! 
rat- 


land  is  recited. 


iiim  a  warranty  deed  tn-  rf  i. 
':^r  the  purchase-price,  he  executed 
him,  in  which  tl' 
agreement  to  p.' 
nd  into  town  lots,  as  an  addition  : 
'■'•'  said  Madehne  Rochester   >> 

lots,  in  money  or  prom^ 
■   '  ''" '•"'■  interest  ai 

nd  out  into  sixty -mne  town  lots,  ;: 

a  plat  was  filed,  calling  it  "Joli 

and  that  from  May  28th.  1869,  ' 

[livty-nine  lots,  receiving  for  prii 

the  aggregate,  $9,010.85,  lea\ 

vas  never  actually  paid  b;  g,  but  i 

'     '  V  of  June,  1874,  w.  f'   = 

,evering  credited  Mr 
.iccrued  interest  thero 
appellant  paid  out  r 
L,  which  ran  alor  )ugh  tii 

ising  a  judgmer;  belongs 

iistin.     This  judr  used  b 

"^   with   Mrs.    Iv^.n.    >  •.    that   !• 
o  as  to  allow  ten  per  cent,  iii 
■  :   the  land,  instead  of     ■ 


wa.  • 

account  wi* 
to  the  contr; 
the  improvemei 
tract;  but  this  ; 
to  Mrs.  Roches! ' 
Mr.   Levering,  ujc 
would  change  his  oV 
terest  on  the  $.• 
This  was  accort' , 
-  The  court  also  foumt  liiai  had  a  n 

trally  located  office  in  the  ctt)  .yette.  v 

constantly  in  attendance ;  tiiat  by  reason  of  thest 
extensive  business,  connections  and  his  en^^' -^     ^' 
great  advantages  in  effectlrig  sales  of  rea; 
purchase  from  Mrs.  Rochester,  Fourth  - 
line  of  the  addition,  laid  out  of  the  land 
and  on  that  account  lots  m  that  local' 
many  of  them  were  sold  at  prices  lari. 

■  the  land  in  bulk.     The  court  finds  it  unT))> 


iibie 


"ited  and 
:  three  (.■■  . 
.  and  h' 
.i  V,  he  hj! 
oon  after  tb 

^ong  the  " 

-as  impf: 

'.csirablfc 

the  price 
to  state 


GOOD    FAITH.  70I 

much  of  the  advanced  price  obtained  was  due  to  the  superior  faciH- 
ties  and  the  individual  energy,  industry  and  efforts  of  Levering. 

Among  other  facts  found,  in  addition  to  those  above  recited, 
which  cast  some  Hght  on  the  transaction,  it  may  be  stated  that  it  was 
found  that  Mrs.  Rochester  was  a  lady  of  superior  intelligence,  but 
inexperienced  in  business  matters,  or  in  relation  to  the  value  of  real 
estate;  that  she  had  entire  confidence  in  the  judgment  and  honesty 
of  Mr.  Levering ;  that  he  generally  explained  all  business  transac- 
tions to  her,  and  that  he  had  the  entire  management  and  control  of 
her  property  and  business  ;  that  he  kept  her  accounts,  which  were 
always  open  to  her  inspection,  and  that  she  frequently  examined 
them. 

The  first  conclusion  of  law  stated  by  the  court  was,  that  the  sale 
of  the  land  was  valid  and  binding  and  free  from  actual  or  legal 
fraud,  and  that  the  plaintiff  Levering's  account  should  be  charged 
with  the  sum  of  four  thousand  dollars,  the  purchase-price  of  the 
land,  as  so  much  money  received  by  him  at  the  date  of  the  sale. 

The  conclusion  of  law  which  affirms  the  validity  of  this  sale  is  the 
chief  subject  to  which  the  appellant's  argument  is  directed.  It  may 
be  remarked,  that  so  far  as  the  contention  relates  to  sales  b}-  a 
trustee  or  other  person  having  a  power  or  agency  to  sell  property, 
which,  in  the  execution  of  such  agency,  the  agent  or  trustee  either 
directly  or  indirectly  sells  to  himself,  the  argument  is  not  deemed  to 
be  relevant  to  the  case  under  consideration.  That  an  agent  to  sell 
property  cannot,  either  directly  or  indirectly,  become  the  purchaser 
from  himself,  and  that  such  sale  is  voidable  absolutely  at  the  election 
of  the  principal  or  beneficiary,  without  regard  to  its  fairness,  are 
propositions  inflexibly  established. 

The  facts  found  do  not  make  this  a  case  of  that  description. 
While  they  disclose  a  relation  of  the  closest  and  most  confidential 
character  between  principal  and  agent,  so  far  as  the  general  manage- 
ment of  the  financial  and  business  affairs  of  the  principal  were  con- 
cerned, they  also  show  that  the  agent  had  no  power  to  sell,  and  that 
he  did  not,  in  fact,  make  the  sale.  The  agency  with  respect  to  the 
particular  tract  of  land  is  stated  in  the  following  language :  "That 
said  Madeline  was  desirous  of  selling  this  tract,  as  well  as  her  other 
unimproved  land,  and  requested  said  plaintiff  to  find  a  purchaser 
therefor,  which  he  tried  to  do ;  *  *  *  that  while  acting  as  the 
confidential  agent  of  said  Madeline,  and  her  agent  to  sell  said  fifteen 
acre  tract,  defendant  proposed  to  buy  it  himself."  Fairly  inter- 
preted, this  means  that  while  in  the  relation  of  general  confidential 
business  agent  to  the  appellant,  Mr.  Levering  was  requested  to  find  a 
purchaser  for  the  land  who  would  pay  a  fixed  price,  and  while  so  act- 
ing as  agent  to  sell  he  proposed  to  purchase  the  land  from  his  princi- 
pal and  negotiate  with  her  the  purchase  which  is  now  the  subject  of 
controversy. 

The  case  is  one  arising  out  of  a  transaction  between  a  confidential 


702  DUTIES   OF   AGENT   TO    PRINCIPAL. 

agent  and  his  principal,  who  purposely  and  intentionally  dealt  with 
each  other  concerning  a  subject-matter  involved  in  the  agency.  The 
result  of  the  negotiation  between  the  two  was,  that  the  principal 
consciously  and  knowingly  transferred  to  her  confidential  agent  the 
land  in  controversy  at  a  stipulated  price. 

While  a  transaction  of  the  character  disclosed  is  not  necessarily 
voidable  at  the  election  of  the  principal,  a  court  of  equity,  upon 
grounds  of  public  policy,  will,  nevertheless,  subject  it  to  the  severest 
scrutiny.  Its  purpose  will  be  to  see  that  the  agent,  by  reason  of  the 
confidence  reposed  in  him  by  the  principal,  secures  to  himself  no  ad- 
vantage from  the  contract.  When  the  transaction  is  seasonably 
challenged,  a  presumption  of  its  invalidity  arises,  and  the  agent  then 
assumes  the  burden  of  making  it  affirmatively  appear  that  he  dealt 
fairly,  and  in  the  richest  of  faith  imparted  to  his  principal  all  the  in- 
formation concerning  the  property,  possessed  by  him. 

The  confidential  relation  and  the  transaction  having  been  shown, 
the  onus  is  upon  the  agent  to  show  that  the  bargain  was  fair  and 
equitable,  that  he  gave  all  the  advice  within  his  knowledge  pertain- 
ing to  the  subject  of  the  sale  and  the  value  of  the  property,  and  that 
there  was  no  suppression  or  concealment  which  might  have  influ- 
enced the  conduct  of  the  principal.  McCormick  v.  Malin,  5  Blackf. 
509,  522 ;  Cook  V.  Berlin,  etc.,  Co.,  43  Wis.  433 ;  Porter  v.  Woodruff, 
36  N.  J.  Eq.  174;  Young  v.  Hughes,  32  N.  J.  Eq.  372;  Farnam  v. 
Brooks,  9  Pick.  212;  Moore  v.  Mandlebaum,  8  Mich.  433. 

As  applicable  to  cases  of  the  character  under  consideration,  the 
rule  is  succinctly  stated  by  a  learned  author  in  the  following  lan- 
guage: 

"Passing  to  dealings  connected  with  the  principal's  intervention, 
in  any  contract  of  purchase  or  sale  with  the  principal,  or  other  trans- 
action by  which  the  agent  obtains  a  benefit,  a  presumption  arises 
against  its  validity  which  the  agent  must  overcome ;  although  this 
presumption  is  undoubtedly  not  so  weighty  and  strong  as  in  the  case 
of  a  trustee.  The  mere  fact  that  a  reasonable  consideration  is  paid 
and  that  no  undue  advantage  is  taken,  is  not  of  itself  sufficient.  Any 
unfairness,  any  underhanded  dealing,  any  use  of  knowledge  not  com- 
municated to  the  principal,  any  lack  of  the  perfect  good  faith  which 
equity  requires,  renders  the  transaction  voidable,  so  that  it  will  be 
set  aside  at  the  option  of  the  principal.  If,  in  the  other  hand,  the 
agent  imparted  all  his  own  knowledge  concerning  the  matter,  and 
advised  his  principal  with  candor  and  disinterestedness  as  though 
he  himself  were  a  stranger  to  the  bargain,  and  paid  a  fair  price,  and 
the  principal  on  his  side  acted  with  full  knowledge  of  the  subject- 
matter  of  the  transaction,  and  of  the  person  with  whom  he  was 
dealing,  and  gave  full  and  free  consent — if  all  these  are  affirmatively 
proved,  the  presumption  is  overcome,  and  the  transaction  is  valid." 
2  Pom.  Eq.  Jur.,  §  959. 

Subject  to  the  burdens  thus  imposed,  as  was  stated  in  Fisher's  Ap- 


Jl 


L.4UII  cu, 

i'e  lig:ht 
fact«. 
.  Roche; 


de  bv 


mucn 

mg  of  > 

nature  of  tl.e  l: 

from  the  '^r' 

affairs  at  i' 

speculation  ;;. 

part  of  187".  ' 

lots  dispo' 

in  tlie  pa  til 

value,  as 

been  forty 

that  the  pr' 
ice  was   : 
antz,  6  ^  ■ 
idence : 
.'.'ins  to  \. 
way  of  pre^ 
n  of  frail' 
require  - 
ion,  of  to  c: 
.ionarenr.  -ix ' 


■  changes  in  the 
S3,  we  think  all  '■'... 
certain  to  a  coin'U' 
iiitable.    ''~''    ' 
11  of  evi 


'■>  acipal, 

;i>,i-rning  a  si 

'     ijVl 

i-i> 

negotiation 

betweei 

the 

•.iiaiU'Jtev  ».!■ 

U      1 

0  orincipal, 

of  public  p( ' 

erlheless,  sui 

J^  .  I,  l.l.  , 

.      Its  ptv".. 

■e  that  the  a;. 

confidence  repos 

•rincipal,  set  ■  , 

from  the 

en   the  trans. ;cr 

ed,  a  presimr 

i  validity  arises,  a 

.i.....-a!ne.> 

;  the 

U'ely  appear 

fairly,  and  i: 

to  his  princii 

formation  c- 

,  possessed  by  him. 

1       1 ,  >     .' 

■ .  V.  !  1  ", 

<"ansaction  having 
hat  the  bargain  ^ 

was  fair 

r<:  within  his  knowledge  peruu; 

he  value  of  the  prone 

■ity.  and  tha. 

which  ' 

* 

wrmick  v. 

43  Wis.  433;  Porter 

V    \VQodruii 

lies,  32  N.  J.  Eq.  S7- 

■   V'":irtinm  -> 

ndlebaum,  8  Mich.  4 

■haracter  under  cons! 

'  .'■;  ,.  U(  ^li,      Ul' 

.rned  author  in  the  following  lav? 

iCU:. 

;h  the  principal'' 
•  with  the  princii' 
IS  a  benefit,  a  pi      . 
.nt  must  overcome ,  i 
weighty  and  stp""     ' 
a  reasonable  cor 

itT  trau> 

on  arise 

ilthough  thv 

•:  -i^  the  ca^v 

•n  is  pai 

a.i' 

ken,  is  not  of  its 

.^nt.   An} 

unfv 

'cr,  any  use  of  kr 

not  com 

munica! 

f  the  per 

.h  whic! 

enuitv  i 

•.m  void- 
ncipai. 

•:     will    !-■. 

'  [  jjcii  i-Cvi    . . 

!,  ,  lo-fj     ,  , 

.  >  ^'  .•-■ .     »-. ,  1  ■ 

iiis  prin>. 

-  though 

ere  a  ?t  ■ 

liHrgai;; 

i-r  price    ' 

on  his 

ith  full 

the  su! 

,u;.;ioi- 

Oi  the  tr 

f  the  per^.o;!   v.  iia  w 

horn   h( 

■iealing^. 

and  gav' 

isent  -if  all  th'-'-f^  are 

affirmai . 

proved, 

the  pre? 

is  valid.' 

2  Potn, 

Kn.  Jur.,  .,  -.,,,. 

■  ■  I  !  1  i  '  '. 

;r '  * 0  the  burdens  thus 

impose* :               stated  in 

Fisher's  Ap- 

GOOD    FAITH.  703 

peal,  34  Pa.  St.  29,  "it  never  has  been  supposed  that  a  principal  might 
not  sell  to  his  agent,  or  the  client  to  his  attorney ;  and  that  their  titles, 
thus  acquired,  would  not  be  good  in  the  absence  of  fraud  on  their 
part." 

In  the  light  of  the  foregoing  principles  we  may  now  briefly  recur 
to  the  facts. 

Airs.  Rochester  and  her  agent  called  on  Mr.  Ball,  who  had  bought 
half  the  thirty-acre  tract,  and  solicited  him  to  purchase  the  remain- 
ing fifteen  acres  at  the  price  of  four  thousand  dollars.  He  refused 
to  pay  more  than  thirty-five  hundred.  The  agent,  then  being  solicited 
to  find  a  purchaser,  was  unable  to  secure  an  oft'er  in  excess  of  that 
made  by  Ball.  The  property  being  unproductive,  its  value  purely 
prospective  and  largely  contingent  on  events  that  might  or  might  not 
happen,  such  as  the  growth  and  improvement  of  the  city  to  which  it 
lay  contiguous,  and  the  demand  which  might  arise  for  lots  in  that 
direction,  can  it  now  be  said,  after  this  lapse  of  time,  that  the  price 
paid  was  not  fair? 

That  it  was  difficult  to  ascertain  the  real  value  of  the  land  with 
much  certainty  at  the  time  of  the  sale,  is  disclosed  in  the  special  find- 
ing of  facts,  and  that  it  was  necessarily  so  is  inherent  in  the  very 
nature  of  the  case.  Considering  the  length  of  time  which  intervened 
from  the  sale  until  the  investigation  was  set  on  foot,  the  condition  of 
afifairs  at  the  time  the  sale  was  made,  the  inflation  in  values,  and  the 
speculation  in  real  estate  which  ensued,  and  continued  until  the  latter 
part  of  1873,  covering  the  period  during  which  substantially  all  the 
lots  disposed  of  were  sold  by  Levering,  and  the  obstacles  which  lay 
in  the  path  of  the  investigation  are  apparent.  That  the  approximate 
value,  as  arrived  at  under  these  circumstances,  is  stated  to  have 
been  forty-five  hundred  dollars  fvdly  justifies  the  further  statement 
that  the  price  paid  was  not  manifestly  inadequate,  in  effect  that  the 
price  was  fair.  As  was  said  by  Mr.  Justice  Story,  in  Prevost  v. 
Grantz,  6  Wheat.  481,  "length  of  time  necessarily  obscures  all  human 
evidence ;  and  as  it  thus  removes  from  the  parties  all  the  immediate 
means  to  verify  the  nature  of  the  original  transactions,  it  operates 
by  way  of  presumption,  in  favor  of  innocence,  and  against  imputa- 
tion of  fraud.  It  would  be  unreasonable,  after  a  great  length  of  time, 
to  require  exact  proof  of  all  the  minute  circumstances  of  any  trans- 
action, or  to  expect  a  satisfactory  explanation  of  every  difficulty,  real 
or  apparent,  with  which  it  may  be  encumbered." 

When  it  is  remembered  that  the  transaction  was  had  in  February, 
1869,  ^"cl  that  it  was  permitted  to  stand  unchallenged  through  all 
the  changes  in  the  situation  and  fluctuation  of  prices  until  January, 
1883,  we  think  all  that  can  be  required  of  the  defendant  is  to  make 
it  certain  to  a  common  intent  that  the  price  paid  was  fair  and 
equitable.  This  has  been  done.  That  the  purchaser,  by  the  succes- 
sion of  events,  the  rise  in  value  of  the  property  on  his  hands,  coupled 
with  his  energy,  ability  and  industry,  and  his  facilities  for  selling 


704  DUTIES    OF   AGENT    TO    PRINCIPAL. 

the  lots,  sold  the  property  for  more  than  he  paid  for  it,  cannot  now 
be  taken  as  the  measure  of  its  value  at  the  time  of  the  purchase,  nor 
can  it  be  assumed  on  that  account  that  the  plaintiff  was  over-reached 
in  the  purchase.  Fisher's  Appeal,  supra.  Having  paid  a  fair  price 
for  the  property,  and  fully  communicated  to  his  principal  all  the  facts 
within  his  knowledge  about  the  land  and  its  value,  misrepresenting 
nothing,  concealing  nothing,  the  appellee  has  brought  the  transaction 
within  the  rule  which  authorizes  it  to  stand. 

As  related  to  the  subject  we  are  considering,  it  was  urged  on  the 
argument  that  the  obligation  given  for  the  purchase  price  was  such 
that  the  purchaser  came  under  no  absolute  contract  to  pay  for  the 
land,  that  his  liability  to  pay  was  contingent  upon  his  realizing  the 
amount  stipulated  to  be  paid  from  sales  of  lots,  and  that  this  was  so 
unfair  that  the  sale  should  have  been  set  aside. 

We  do  not  think  the  contract  admits  of  the  construction  contended 
for.  The  contract  recited  that  the  land  was  conveyed  at  the  price  of 
$4,000.  The  import  of  this  was  a  debt  for  a  specified  amount  then 
presently  due.  The  unilateral  stipulation  contained  in  the  writing, 
to  the  effect  that  the  purchaser  would  lay  the  land  out  into  lots, 
specifying  no  time,  and  pay  the  amount  with  interest  out  of  the 
proceeds  of  sales  in  money  or  promissory  notes,  was,  if  of  any  force 
whatever,  at  most  an  agreement  on  his  part  that  he  would  do  so 
within  a  reasonable  time. 

It  is  insisted  that  because  the  Austin  judgment  which  belonged  to 
Mrs.  Rochester  was  used  by  her  agent  to  pay  for  the  street  im- 
provements, and  because  the  amount  of  the  purchase  price  of  the 
land  and  the  accrued  interest  thereon  were  liquidated  by  being  in- 
cluded in  a  partial  settlement  made  in  1874,  which  was  afterwards 
found  to  be  erroneous,  an  imputation  of  bad  faith  in  making  the  pur- 
chase of  the  land  arises.  These  were  all  matters  occurring  long 
after  the  transaction  which  it  assailed  was  completed,  and  cannot 
be  supposed  to  have  been  contemplated.  They  did  not  exist  at  the 
time  the  land  sale  was  made,  and  could,  consequently,  have  exerted 
no  influence  upon  it,  one  way  or  the  other.  They  were  matters  only 
relevant  to  be  considered  in  the  adjustment  of  the  accounts  between 
the  parties,  and  in  that  connection  they  were  considered  by  the 
learned  court  and  properly  adjusted.  The  sale  of  the  land  cannot 
be  affected  by  independent  dealings  or  transactions  which  were  had 
afterwards,  and  which  had  no  relation  to  the  principal  transactions 
here  involved.   Sherman  v.  Hoagland,  54  Ind.  578.^     *     *     ^'  ^ 

Judgment  affirmed. 

^  A  portion  of  the  opinion  is  omitted. 
"See  Curry  v.  King  (Cal.),  92  Pac.  662. 


iring  a  cert. 

:rchasing  an 

r  her;  that  ,. 

r,  during  s; 
Liring  said  [v 
$6,225,  or  tlu 
due  her  from  < 
defendant  an- 
plaint.  ' 
than  .^ 
plaint'! 
ant  ;tv 


HULK: 

which 
purchase  .i 
facts  as  to 
by  defendant 
in  the  an'sw'^^^ 
$3,600  alle; 
fused  to  c''" 
plaintiff  up 
$9,92070  ( 
judgment,  : 
judgment  '- 
paid  out  in 
when  defer 
for  plaintif!' 
was  one  of  . 
the  interests  si;  , 
and  she  did  not 
a  member  of  s;  • 
about  to  purchr. 

''  said  S)ndicat 
.or  plaintiff.  th< 
$55,500,  which 
'hat  he  did  not  nolj; 

'mid  not  have  an 
idicate. 

45— Reinhard  Cases 


704 


oiint  that  til' 
•"•"'^.1,  supra 
micateci 
■  "-.:  land  an<.i  :; 
the  appellee  has 
ruk  vvi.ich  autiiorizes  it  to  stand. 
.    cd  to  tlie  subject  we  are  considerir 
■at  that  the  obligation  jjiven  for  the  pi 
he  purchaser  came  i      ';  ■  no  absolute  C'-i. 


I  now 

e,  nor 

-reach- 

-'•■  pric\, 

facts 


id,  that  his  liability  t 
amount  stipulated  tr-  ' 
unfair  that  the  sal* 

We  do  not  th    " 
for.    The  cont: 
$4,000.    The  V'. 
presently  due 
h'  the  efft 


eluded 

found  lo  nt'  cr; 
chase  of  the  Ki 
after  the  tran^ 
be  supposed  to 
time  the  land  si- 
no  influence  upc  _  .. 
relevant  to  be  consi 
the  parties,  and  in 
learned  court  and  1 
"'  rted  by  inde]) 
rds,  and  wh: 
ii.v  _d.   Sher. 

affirmc 


s  contingent  upon  hi 
n'.fin  sales  of  lots,  and  tiun. 
iiave  been  set  aside. 
ict  admits  of  the  construction  contcnucd 
it  the  land  was  conveyed  at  the  price  of 
was  a  debt  for  a  specified  amount  th 
il  stipulation  contained  in  the  writin 
aser  would  lay  the  land  out  into  lot 
"■he  amount  with  interest  out  of  t! 
imissory  notes,  was,  if  of  any  for 
ucnt  on  his  part  that  he  would  do  ^ 

the  Austin  judgment  wlr 

her  agent  to  pay  for  ■      .i 

nount  of  the  pur  ce  of  ti 

M,.i-ec!T-i  n-ere  liquiu.;.; .,     .    being  i- 

S74.  which  was  afterwar> 

u  bad  faith  in  making  the  pu: 

re  all  matters  fKcurring  lot 

ed  was  cout  ' 

ed.     They  (' 

1  could,  consequ^ 

the  other.    The} 

thi'  adjustment  of  th' 

"^  •  tion  they  were  ^.n 

-ted.     The  sale  of  tht 


'd  cann 
ist  at  t! 
e  exert c 
Iters  on' 
,  betwei 
.vd  by  tl 
land  cann 
.ich  were  h;- 
!  transactio! 


land,  54 


I 


GOOD    FAITH.  705 

STERLING  V.  SMITH. 

1893.     Supreme  Court  of  California.     97  Cal.  343. 

AIcFarland,  J. — In  her  complaint,  the  plaintiff  averred  that, 
during-  a  certain  period,  defendant  was  her  confidential  agent  in 
purchasing  and  selling  real  estate  and  in  transacting  other  business 
for  her ;  that  as  such  agent  and  for  such  business  he  received  from 
her,  during  said  period,  the  sum  of  $11,920,  or  thereabouts;  that 
during  said  period  he  paid  out  and  expended  for  her  the  sum  of 
$6,225,  or  thereabouts,  leaving  a  balance  of  $5,695,  with  interest, 
due  her  from  him;  and  for  this  last  sum  she  prays  judgment.  The 
defendant  answered,  admitting  the  agency  as  alleged  in  the  com- 
plaint, but  denied  that  he  had  received  of  plaintiff's  money  more 
than  $9,920.70.  The  court  found  the  defendant  had  received  of 
plaintiff's  money  only  the  said  amount  of  $9,920.70.  But  the  defend- 
ant averred  that,  in  addition  to  the  said  sum  of  $6,225  P^i^  out  by 
him  for  plaintiff,  as  averred  in  the  complaint,  he  also  paid  out 
for  her  the  further  sum  of  $3,600.  He  averred  that  this  latter  sum 
of  $3,600  had  been  paid  out  by  him  for  her  in  purchasing  certain 
interests  in  what  is  called  generally  the  Kansas  Street  Syndicate, 
which  afterwards  became  a  corporation,  and  was  engaged  in  the 
purchase  and  sales  of  land,  principally  at  Pasadena,  California.  The 
facts  as  to  this  syndicate,  and  the  expenditure  of  money  of  plaintiff 
by  defendant  in  connection  with  the  same,  are  stated  in  great  detail 
in  the  answer.  The  court  found  against  the  defendant  as  to  the  said 
$3,600  alleged  to  have  been  expended  with  said  syndicate,  and  re- 
fused to  allow  defendant  for  the  same,  and  entered  judgment  for 
plaintiff  upon  the  basis  of  allowing  defendant,  as  against  said  sum  of 
$9,920.70  only  the  sum  of  $6,503.75.  Defendant  appeals  from  the 
judgment,  and  the  only  point  made  by  him  for  a  reversal  of  the 
judgment  is  the  refusal  of  the  court  to  allow  him  for  said  amount 
paid  out  in  said  syndicate.  The  court  found  that,  prior  to  the  time 
when  defendant  made  the  purchase  of  interests  froin  said  syndicate 
for  plaintiff,  "he  had  already  become  a  member  of  said  syndicate,  and 
was  one  of  the  joint  owners  of  the  property  of  said  syndicate,  and  of 
the  interests  so  purchased  by  him  for  her ;  that  he  did  not  inform  her, 
and  she  did  not  know  at  the  time  she  made  said  purchase,  that  he  was 
a  member  of  said  syndicate,  and  a  part  owner  of  the  interests  he  was 
about  to  purchase  for  her,  but  led  her  to  believe  he  was  not  a  member 
of  said  syndicate ;"  and  that  at  the  time  defendant  made  said  purchase 
for  plaintiff,  the  syndicate  was  indebted  in  a  large  amount,  exceeding 
$55,500,  which  defendant  had  been  instrumental  in  incurring;  and 
that  he  did  not  notify  her  of  said  debt,  but  represented  to  her  that  she 
would  not  have  any  calls  to  pay  if  she  became  a  member  of  the 
syndicate. 

45 — Reinhard  Cases. 


706  DUTIES    OF   AGENT   TO    PRINCIPAL. 

The  main  contention  of  appellant  is,  that  the  findings  above  re- 
ferred to  are  entirely  outside  of  any  issues  made  by  the  pleadings, 
for  the  reason  that  the  complaint  does  not  contain  any  allegation 
of  facts  constituting  fraud  of  any  character,  or  any  allegation  that 
appellant  was  a  member  of  the  syndicate,  or  that  she  did  not  know  of 
his  having  an  interest  therein,  etc.,  which  allegations  appellant  con- 
tends were  absolutely  essential,  in  order  to  admit  evidence  upon 
the  subject.  This  position,  however,  is  not  tenable.  Our  system  of 
pleading  does  not  include  a  replication,  and,  under  §  462  of  the 
code  of  civil  procedure,  "the  statement  of  any  new  matter  in  the 
answer,  in  avoidance  or  constituting  a  defense  or  counterclaim,  must 
on  the  trial  be  deemed  controverted  by  the  opposite  party."  The 
averments  in  the  answer  as  to  the  investments  in  the  syndicate  consti- 
tuted new  matter ;  and  if  a  replication  were  allowable,  the  plaintiff, 
by  such  a  pleading,  could  have  set  up  the  facts  found  by  the  court 
as  aforesaid.  But  under  our  system  of  pleading,  she  is  deemed  to 
have  set  up  such  facts.  No  doubt,  when  a  cause  of  action  rests  upon 
fraud,  the  facts  constituting  the  fraud  must  be  set  up  in  the  com- 
plaint ;  but  such  was  not  the  case  here,  for  the  necessity  of  proving 
fraud  appeared  only  after  the  answer  of  the  defendant.  And  a  plain- 
tiff is  in  that  position  with  respect  to  all  new  matters  set  up  in  the 
answer.  (Williams  v.  Dennison,  94  Cal.  540;  Grangers'  Business 
Ass'n  V.  Clark,  84  Cal.  204;  Colton  Land,  etc.,  Co.  v.  Raynor,  57 
Cal.  588;  Curtiss  v.  Sprague,  49  Cal.  301;  Canfield  v.  Tobias,  21 
Cal.  349.)  In  Colton  Land,  etc.,  Co.  v.  Raynor,  57  Cal.  588,  the 
court,  in  speaking  of  said  §  462,  say  :  "This  has  always  been  regarded 
as  allowing  a  plaintiff,  in  reply  to  such  new  matter,  to  introduce  on 
the  trial  any  evidence  which  countervails  or  overcomes  it,  as  if  it 
were  inserted  in  a  replication,  and  pleaded  with  all  the  precision  and 
fullness  which  the  strictest  rules  of  law  ever  required." 

With  respect  to  respondent's  criticism  of  the  findings,  it  is  sufficient 
to  say  that,  in  our  opinion,  they  are  full  and  specific  enough,  and  that 
no  further  findings  were  necessary. 

As  to  the  merits  of  the  case,  it  was  not  necessary  for  the  respond- 
ent to  prove  or  for  the  court  to  find  expressly  that  the  acts  done  by 
appellant  were  done  with  fraudulent  and  wrongful  intent ;  because 
the  acts  themselves  were  of  such  a  character,  considering  the  rela- 
tionship of  the  parties,  that  the  law  imputes  fraud.  In  Pomeroy's 
Equity  Jurisprudence,  §  959,  the  rule,  as  between  principal  and 
agent,  is  stated  as  follows :  "Equity  regards  and  treats  this  relation 
in  the  same  general  manner,  and  with  nearly  the  same  strictness,  as 
that  of  trustee  and  beneficiary.  The  underlying  thought  is,  that  an 
agent  should  not  unite  his  personal  and  his  representative  characters 
in  the  same  transaction  ;  and  equity  will  not  permit  him  to  be  exposed 
to  the  temptation,  or  brought  into  a  situation  where  his  own  personal 
interests  conflict  with  the  interests  of  his  principal.  In  dealings 
without  the  intervention  of  his  principal,  if  an  agent  for  the  pur- 


'-■:•:.  at  tne  option 
ii:t,   absence  of  'in 
wholly    immater: 
•  ■ '^  edy,  except  lu- 
;-."     (See  also.  B 
i he  object' 
iient,  hecar.' 


•!o  such  rati! 
•o  show    ■'•' 
.bout  til 


such  tht 
..  .  to  noticr 
Judgment 


1870. 

•kAvE-,    j.- 

certaiii  c< 
n  a  case  - 
1  ne  defend, 
'.  '.\i:e,  and  he  ei 
in  writing  a!) 
ich  entries. 
....jg  down  the  a 
»  and  rate  of  inter 

:  the  agent  prj 
or  not)   ^' '' 
.    '  reap  an. 
'he  agent    . 
Co.,  3  Ga.  Ai 
rrtrticiilarly  I' 
.  Law  Rr 
t  must  !!• 
.  ilolland.  2  Bii 


'[]:■■:  main  coi. 
icire'!  »o  are  en 
for  m  thai  ilie 

of  '  -tituting  fra 

appellant  was  a  member  <■ 
his  having  an  interest  thi. 
tends  were  absolutely  e- 
th.e  subject.    Th'  '*' 

pleading  does  n 
code  of  civil  pr 
answer,  in  avoid.* 
on  the  trial  be  deen 
averments  in  ^'^f"  '^n- 
tuted  new  r. 
by  such   •  • 
as  afor- 
have  se! 
fraud,  1' 
plaint ;  !.: 
fta-v)  ■:■ 


WCxL   ... 

fullness 

With  rcsp 
to  say  that,  i- 
no  further  f 

As  to  the  1 . 
ent  to  prove  or  for  i 
appellant  were  done 
the  acts  themselv 
tionship  of  the  pan 
Equity  Jurisprudent 
agent,  is  stated  as  f c "; 
in  the  same  general  i 
that  of  trustee  and  b 
agent  should  not  unit' 
in  the  same  transaction  ;  and  equity  will  nc 
to  the  temptation,  or  brought  into  a  situat 
interests  conflict  with  the  interests  of  1:> 
wirJiout  the  intervention  of  his  principal 


pciiani  lb,  tiiut  :' 
of  any  issues  n: 
t  does  not  • 

character,  ■  , 

dicate,  or  th  know  ot 

.  which  alle:,,  ""    ■""- 

n  order  to  . 
er,  is  not  tc: 
:i cation,  and 

ement  of  any  new   luaLlcr  m  the 
■■•  a  defense  or  counterclaim,  must 
'  by  the  opposite  party.''     Th( 
. .  -itments  in  the  syndicate  consti- 
ition  were  allowable,  the  plaintiff, 
■'V  the  facts  found  by  the  court 
of  pleading,  she.  is  deemed  to 
wnen  a  cause  of  action  rests  upon 
I'raud  must  l>e  set  up  in  the  corn- 
here,  for  the  necessity  of  provin,;.: 
.  cr  of  the  defendant.   And  a  plain- 
all  new  matters  set  up  in  the 
Cal.  540;  Grangers'  Business 
Land,  etc.,  Co.  v.  Raynor,  57 
*.  ai.  301;  Canfield  •     "^^     ' 
Co.  V.  Raynor,  57 
\' :  ''This  has  always  becu  regarded 
such  new  matter,  to  introduce  on 
ntervails  or  overcomes  it,  as  if  it 
■  pleaded  with  all  the  precision  and 
•f  law  ever  required." 
'icisni  of  the  findings,  it  is  sufficient 
full  and  specific  enough,  and  that 


not  necessary  io^^  the  respond- 

xpressly  that  done  bA- 

.  and  wrongli  ;  ;  l>ecause 

a  character,  considernig  the  rela- 

.vw  imputes  fraud.     In  Pomeroy's 

rule,  as  between  principal  and 


ly  regards  p 
■vith  nearlv 


this  relatiovt 

strictness,  as 

:it  is,  that  an 

live  character ^ 

un  to  be  exposed 

his  own  person:! ■ 

■al.     In  dea'   I; 

ent  for  ''' 


GOOD   FAITH. 


707 


pose  of  selling  property  of  the  principal,  purchases  it  himself,  or  an 
agent  for  the  purpose  of  buying  property  for  the  principal  buys  it 
from  himself;  either  directly  or  through  the  instrumentality  of  a 
third  person,  the  sale  or  purchase  is  voidable ;  it  will  always  be  set 
aside  at  the  option  of  the  principal ;  the  amount  of  consideration, 
the  absence  of  undue  advantage,  and  other  similar  features  are 
wholly  immaterial ;  nothing  will  defeat  the  principal's  right  of 
remedy,  except  his  own  confirmation  after  full  knowledge  of  all  the 
facts."     (See  also,  Burke  v.  Bours,  92  Cal.  108.) 

The  objection  that  the  findings  are  insufficient  to  support  the  judg- 
ment, because  they  do  not  contain  an  express  statement  that  the  re- 
spondent did  not  ratify  the  investment  in  the  syndicate,  cannot  be 
maintained.  The  findings  clearly  go  upon  the  theory  that  there  was 
no  such  ratification ;  and,  moreover,  there  was  no  evidence  tending 
to  show  any  ratification  after  respondent  had  learned  all  the  facts 
about  the  transaction.  Appellant  was  not  entitled,  upon  the  eidence, 
to  a  finding  that  there  had  been  such  ratification.  Neither  do  we 
think  that  the  stipulation  of  counsel  referred  to  in  finding  14  can  be 
held  as  estopping  the  respondent  from  attacking  the  validity  of  the 
investment  in  the  syndicate ;  and  the  trial  was  not  conducted  upon 
any  such  theory.  There  are  no  other  points  which  we  deem  it  neces- 
sary to  notice  in  detail. 

Judgment  affirmed.^ 


SCRIBNER  AND  POTTER  v.  COLLAR. 


1879.     Supreme  Court  of  Michigan.     40  Mich.  375. 


Graves,  J. — The  plaintiffs  recovered  judgment  against  defendant 
for  certain  commissions,  and  a  review  of  the  proceedings  is  asked 
upon  a  case  made. 

The  defendant  owned  certain  real  estate  he  wished  to  sell  or  ex- 
change, and  he  employed  the  plaintiffs  to  aid  him.  The  arrangement 
was  in  writing  and  signed  by  defendant  in  a  book  kept  by  plaintiffs 
for  such  entries.  After  designating  the  property  and  the  price  and 
setting  down  the  amount  to  stand  on  mortgage  and  the  time  of  cred- 
it and  rate  of  interest,  it  proceeded  as  follows : 

^  "If  the  agent  practices  upon  the  principal  any  deception  (whether  inten- 
tional or  not)  whereby  the  principal  is  misled  and  damaged  and  the  agent 
would  reap  any  benefit,  the  transaction  is  fraudulent  and  the  courts  will  not 
allow  the  agent  to  take  or  retain  the  benefit."  Powell,  J.,  in  Williams  v.  Moore- 
Gaunt  Co.,  3  Ga.  App.  756,  760. 

See  particularly  Powell  and  Thomas  v.  Jones,  21  T.  L.  R.  55,  and  discussion 
in  18  Harv.  Law  Rev.  309. 

The  agent  must  not  mingle  the  principal's  property  with  his  own.  Bracken- 
ridge  V.  Holland,  2  Blackf.  (Ind.)  Z^T,  383. 


708  DUTIES    OF   AGENT   TO    PRINCIPAL. 

"I  hereby  place  the  above  described  property  in  the  hands  of 
Messrs.  Scribner  and  Potter  for  sale,  or  exchange  for  farm  property 
at  my  option,  and  agree  to  pay  them  a  brokerage  commission  of  2^ 
per  cent,  when  sale  or  exchange  is  made,  and  further  agree  to 
render  all  the  assistance  I  can  in  making  such  sale  or  exchange." 

At  the  same  time  this  arrangement  was  made,  the  plaintiffs  were 
under  a  similar  retainer  from  persons  by  the  name  of  Warren,  who 
had  a  farm  they  wished  to  sell  or  exchange.  Of  this  fact  the  defend- 
ant was  ignorant. 

In  the  course  of  a  few  weeks  the  plaintiffs  facilitated  the  opening 
of  negotiations  between  the  Warrens  and  defendant,  and  the  parties 
mot  long  after,  through  the  aid  of  plaintiffs,  consummated  a  trade, 
the  Warren  property,  however,  being  granted  tO'  Homer  A.  Collar, 
a  son  of  defendant.  There  were  some  special  circumstances  con- 
nected with  the  substitution  of  the  former  for  the  latter  as  grantee 
which  are  somewhat  obscure,  to  say  the  least,  but  the  result  is  not 
governed  by  them.  After  this  trade  it  was  ascertained  by  the  de- 
fendant that  during  the  negotiation  the  plaintiffs  were  acting  under 
retainer  from  the  Warrens,  and  for  an  agreed  compensation,  and  he 
objected  in  the  court  below  and  objects  here  that  the  fact  is  a  com- 
plete answer  to  the  action. 

The  plaintiffs'  counsel  have  not  contested  and  do  not  contest  the 
principle  that  the  same  person  cannot  be  the  agent  of  both  parties  in 
reference  to  a  matter  where  discretion  is  to  be  exercised  upon  inter- 
ests which  are  conflicting.  He  contends  that  the  plaintiffs  were  not 
in  that  situation,  but  on  the  contrary  that  the  retainer  taken  by  the 
plaintiffs  required  them  to  do  no  more  than  bring  the  parties  to- 
srether,  and  that  in  this  the  interests  of  defendant  and  the  Warrens 
were  concurrent  and  not  conflicting;  that  these  persons  were  left 
to  negotiate  as  they  pleased  and  uninfluenced  by  the  plaintiffs ;  that 
no  opportunity  existed  for  any  infringement  of  good  faith,  and  that 
it  was  just  and  lawful  to  take  employment  and  pay  from  both  sides. 
There  is  nothing  in  the  record  to  impugn  the  personal  fairness  and 
integrity  of  purpose  of  the  plaintiffs  in  this  transaction,  and  the 
only  question  is  whether  the  undisclosed  arrangem.ent  to  act  for  each 
side  so  accords  with  public  policy  as  to  afford  a  ground  of  action 
to  recover  pay  for  the  service.  There  is  some  contrariety  of  decision 
in  regard  to  the  right  to  accept  a  double  retainer  and  double  pay, 
even  when  the  fact  is  disclosed  to  both  parties.  Farnsworth  v. 
Hemmer,  i  Allen  494 ;  Walker  v.  Osgood,  98  Mass.  348 ;  Pugsley  v. 
Murray,  4  E.  D.  Smith  245  ;  Everhart  v.  Searle,  71  Pa.  St.  256 ; 
Raisin  v.  Clark,  41  Md.  158;  Schwartze  v.  Yearly,  31  Md.  270; 
Mjorison  v.  Thompson,  L.  R.  9  Q.  B.  480,  10  Eng.  129;  Rice  v. 
Wood,  113  Mass.  133;  Lynch  v.  Fallon,  11  R.  I.  311. 

But  the  cases  are  nearly,  if  not  quite,  uniform  that  where  the 
double  employment  exists  and  is  not  known,  no  recovery  can  be  had 
against  the  party  kept  in  ignorance,  and  the  result  is  not  made  to 


I 


>ut  is  a  consequence  of  e^ 
The  opinion  has  been  c- 

nerely  as  a  middleman  !■ 

n  negotiation  and  h; 

ufluence,  he  may  la^A 
Sampson,  i6  Gray  398 ;  bv 

ases   may  occur;   but   t' 

learly  before  they  shoul 

n  Walker  v.  <>- croon.  - 

ind  pointed  omI  ih-  1 
vvas  employe 
svas  to  brinj? 

n  this  ca?';    :m> 
writing  o.n  A-iiicr: 

hat  defendant  an 
mutual  TV  ••'••'•  ■ 
thing  or 
The  w: 

lands  ai 
should  Ix'  -i  .■ . 

itford  tht-  p: 

ir  exchange.    The  cc 
:han  to  constitute  the 

icular  third  person. 

legotiate    w 
.;otiate   and 

he  plain  ■' 
.heir  juui,/!'. 

ract  entered 

he  view  mo^. 

laim  did  not 
•  0  the  writin;. 

!ian  that  cau<  • 

!ie  alleged  ca 

•e  urged  by  p; 

iiore  or  less  or  :. 

elations  caused 

mder  it.    If  thei; 
Jiey  owed  him  tl 

o  reach  a  result 

^mission  to  niteritr-.- 

.uty,  and  this  failure 
\  erse  retainer.     The  par 

my  bias  and   still  l:>c  ins^ 

losition  instead  of  the  he 
There  might  h-  •i---    -  *' 


/CxS 


r)lace  tl" 

e 

hands  ''t 

:  ,.  bcnbiier  .t 

property 

>  option,  and 

of  2^ 

])cr   cent,   when   ^ 

i^   iiia<(C 

-    1  n 

rencitr  all  the  asj- 

Making  si 

■  (.  , 

At  the  same  tit 

.■ement  was  m.id( 

ts  were 

under  a  simila--  '■ 

jjersons.  by  the  m^ 

n,  who 

had  a  farm  tl.- 

^n  exchange.    Of 

defend- 

ant  was  i 

In  the 

o,  the  plaintiffs  facilitaterl 

i  ■  r,  ^^: 

of  nc 

irrens  and  defendant 

■:'■. 

not  1 

■  of  plaintiffs,  consu; 

^  '  1 .  . 

the  • 

ever,  being  granted  to  Homer 

A.  Collar, 

were  con 
to  negoti:.. 
no  opportuni! 
it  was  just  av 
There  is  notL 
integrity  of  ' 
only  question  ■. 
side  so  accords  '■ 
to  recover  pay  for 
in  regard  to  the  rigiit  to 
even  when  the  fact  is  d 
Hemmer,  i  Allen  494 ;  Walker  v.  Osgood, 
Murray,  4  E.  D.  Smith  245 ;  Everhart  v 
Raisin  v.  Clark,  41   Md.  158;  Schwart?:e 
M)orisou  V.  Thompson,  L.  R.  9  Q.  I^ 
Wood,  113  Mass,  133;  Lynch  v.  Fallon 

But  the  cases  are  nearly,  if  not  quite, 
double  employment  exists  and  is  not' knowi 


re  were  some  special  circumstances  con- 

n  r,{  the  iomier  for  the  latter  as  grantee 

to  say  the  least,  but  the  result  is  not 

trade  it  wa?  ascertained  by  the  de- 

\;tion  the  plainti.'^s  were  acting  under 

'  for  an  agreed  coinpensation,  and  he 

d  objects  here  that  the  fact  is  a  com- 

not  contested  and  do  no^'  contest  the 
.>  cannot  be  the  agent  o^'   -■♦^     "n.rties  in 
c  discretion  is  to  be  exerr  :i  inter- 

He  contends  that  the  piainva.-  were  not 
e  contrary  that  the  retainer  taken  by  the 
>  do  no  more  than  bring  the  parties  to- 
"ritcrests  of  defendant  and  the  Warrens 
icting;  that  these  persons  were  left 
l  uninfluenced  by  the  plaintiffs;  that 
infringement  of  gxxxl  faith,  and  tl  at 
mployment  and  pay  from  both  sides, 
to  impugn  the  personal  fairness  anc' 
'tiffs  in  this  transaction,  and  the 
losed  arrangement  to  act  for  each 
as  to  aft'ord  a  ground  of  action 
i  re  is  some  contrariety  of  decision 
double  retainer  and  double  pay, 
I...  to  both   <^-^i'  ■ 


Farnsworth 

^48 ;  Pugslev 

-I   Pa.  St.  2,^ 

iv.  31   Md.  2: 

g.  129;  Ric, 

that  where  ' 
overy  can  b<? 


against  the  party  kept  in  ignorance,  and  the  result  is  not  mad*. 


GOOD   FAITH.  709 

turn  upon  the  presence  or  absence  of  designed  duplicity  and  fraud, 
but  is  a  consequence  of  established  policy. 

The  opinion  has  been  expressed  that  where  the  person  is  employed 
merely  as  a  middleman  to  bring  persons  together  and  has  no  duty 
in  negotiation  and  has  not  engaged  his  skill,  his  knowledge  or  his 
influence,  he  may  lawfully  claim  pay  from  both  parties.  Rupp  v. 
Sampson,  16  Gray  398 ;  Siegel  v.  Gould,  7  Lans.  177.  No  doubt  such 
cases  may  occur;  but  their  exceptional  character  should  appear 
clearly  before  they  should  be  exempted  from  the  general  principle. 
In  Walker  v.  Osgood,  supra,  the  court  explained  Rupp  v.  Sampson 
and  pointed  out  the  distinction  on  which  it  proceded.  The  plaintiff 
was  employed  merely  to  perform  a  preliminary  act.  His  sole  office 
was  to  bring  two  specified  persons  together.  The  plaintiff's  counsel 
in  this  case  has  mistaken,  as  I  think,  the  construction  due  to  the 
writing  on  which  the  case  is  based.  The  employment  was  not  merely 
that  defendant  and  some  third  party  should  be  brought  together  for 
mutual  negotiation  with  an  option  on  defendant's  part  to  do  any- 
thing or  nothing. 

The  writing  placed  the  property  for  sale  or  exchange  in  plaintiffs' 
hands  and  then  reserved  an  option  as  to  whether  the  final  disposition 
should  be  a  sale  or  an  exchange  and  expressly  required  defendant  to 
afford  the  plaintiffs  all  the  assistance  he  could  in  making  such  sale 
or  exchange.  The  contract  had  large  scope  and  went  much  further 
than  to  constitute  the  plaintiffs  mere  middlemen  to  bring  some  par- 
ticular third  person,  or  even  any  one  in  general,  into  a  position  to 
negotiate  with  the  defendant.  It  conferred  authority  to  ne- 
gotiate and  reposed  trust  and  confidence  and  contemplated  that 
the  plaintiff's  should  act  in  defendant's  interest  and  should  exert 
their  judgment  and  their  influence  in  his  behalf.  Such  was  the  con- 
tract entered  into  and  there  is  no  other  to  support  a  recovery,  and 
the  view  most  favorable  to  the  plaintiffs  is  that  the  evidence  of  their 
claim  did  not  depart  from  it.  The  proof  of  a  case  not  consonant 
to  the  writing  would  of  course  be  of  no  avail.  No  other  relation 
than  that  caused  by  this  agreement  is  involved  in  the  ground  work  of 
the  alleged  cause  of  action,  and  no  showing  of  a  different  relation  can 
be  urged  by  plaintiffs  to  sustain  their  case.  Whether  they  interfered 
more  or  less  or  not  at  all  with  the  negotiations  could  not  change  the 
relations  caused  by  the  contract  or  increase  or  diminish  their  duty 
under  it.  If  their  judgment  and  influence  were  due  to  defendant,  if 
they  owed  him  the  full  measure  of  their  skill  and  favor  to  assist  him 
to  reach  a  result  most  advantageous  for  him.  it  might  well  be  that 
omission  to  interfere  and  take  an  active  part  would  be  a  failure  of 
duty,  and  this  failure  moreover  might  be  a  consequence  of  the  ad- 
verse retainer.  The  parties  employed  might  not  be  conscious  of 
any  bias  and  still  be  induced  to  maintain  an  inactive  or  neutral 
position  instead  of  the  helping  and  positive  position  bargained  for. 
There  miffht  be  this  or  that  degree  or  extent  of  dereliction  as  a  con- 


yiO  DUTIES   OF   AGENT   TO   PRINCIPAL. 

sequence  of  the  employment  by  the  other  side,  and  yet  no  actual 
moral  lapse  be  involved. 

It  seems  to  me  there  is  no  escape  here  from  the  rule  of  policy 
before  mentioned,  and  that  the  judge  ought  not  to  have  submitted 
the  case  as  he  did  upon  the  theory  of  plaintiffs'  counsel.  In  view 
of  the  special  circumstances  disclosed  by  the  record,  a  contrary  re- 
sult, were  it  admissible,  would  not  be  distasteful. 

The  judgment  must  be  reversed  with  costs  and  a  new  trial 
ordered.^ 


Section  3. — Agent's  Duty  to  Use  Care  and  Skill. 

FIRST  NATIONAL  BANK  OF  MEADVILLE  v.  FOURTH 
NATIONAL  BANK  OF  NEW  YORK. 

1879.     Court  of  Appeals  of  New  York,     yy  N.  Y.  320. 

Appeal  from  judgment  of  the  general  term  of  the  supreme  court, 
in  the  first  judicial  department,  affirming  a  judgment  in  favor  of 
plaintiff,  entered  upon  the  report  of  a  referee.  (Reported  below, 
16  Hun  332.) 

This  action  was  brought  to  recover  damages  alleged  to  have  been 
occasioned  by  the  negligence  of  the  defendant  in  the  performance  of 
its  duty,  as  agent  for  plaintiff,  in  collecting  a  draft  sent  to  it  for 
that  purpose. 

The  facts  appear  sufficiently  in  the  opinion. 

Earl,  J., — On  the  22d  day  of  March,  1866,  the  National  Bank 
of  Crawford  County,  Pennsylvania,  at  Meadville,  made  and  de- 
livered to  the  plaintiff,  a  national  bank  located  at  the  same  place, 
a  sight  draft  for  $6,000,  drawn  upon  Culver,  Penn  &  Co.,  bankers  in 
the  city  of  New  York.  The  plaintiff  endorsed  the  draft  and  sent  it 
by  mail  to  the  defendant,  its  corresponding  bank  in  the  city  of 
New  York,  for  collection  and  credit.  The  draft  was  received  by  the 
defendant  on  the  morning  of  March  26,  and  was  on  the  same  morn- 
ing presented  by  it  to  the  drawees  for  payment.  Upon  such  presenta- 
tion it  received  from  the  drawees  their  check  for  the  amount  upon 
the  Third  National  Bank  of  New  York,  where  they  kept  their  ac- 

^  Accord:    Atlee  v.  Fink,  75  Mo.  100. 

"The  maxim  that  'no  man  shall  serve  two  masters'  does  not  prevent  the 
same  person  from  acting  as  agent,  for  certain  purposes,  of  two  or  more  par- 
ties to  the  same  transaction  when  their  interests  do  not  conflict,  and  where 
loyalty  to  the  one  is  not  a  breach  of  duty  to  the  other."  Longworth,  J.,  in 
Nolte  V.  Hulbert,  37  Ohio  St.  445,  447. 

"Two  parties  may  always,  by  mutual  consent,  no  matter  how  diverse  their 
interests,  make  a  third  their  agent."  McCay,  J.,  in  Fitzsimmons  v.  Southern 
Express  Co.,  40  Ga.  330,  336. 


counV.  ^nd   it,  < 
check  t'.i  th'.!  b; 
the  cleanusr-ho 
Culver.     ■ 
the  ch^ 
returnea  .t 
which   it   1 

payment  ■ 
pay  me:., 
drawer 

UpCi! 

was  do 
similar 

43 


presc;- . 

and  if  1 

he  bec< 

the  agt 

parties 

his  negl.. 

exacted  or  a  ;r 

Dan.  o; 

Suppv 
draft.     No 
drawer,  to 
tered  into  • 
him  to  rem 
from  loss, 
simply  a  cr 
written  the: 
prescntatioij,  dc- 
draft.     But  sup' 
tains  reliable  iir 
and  that  the  di v... .  v  ui 
what  then  is  the  dutv  li 


present  tiie  diafi  ai  jny  ^ 


DUTIES   1 


-■':    DC    J'!  VtUVf 


It  seems  to  me  there  >*  no  escape  her.*?  fro; 


r>efore  mentioned,  ani' 
the  case  as  he  did  m 
cf  the  specia' 
suit,  were  it  a  .  - 
The   judgment 


judge  : 
cory  Oi 
^ed  by  I 

oe  distasi 

reversed   with 


)  actual 

>f  policy 

:bmitted 

n  view 

ary  re- 


Seotfcii  3.— -A)>-^f  kBi 


C-n?:  and  r^kiH. 


,.   Ui'    i\iil./iJJViI.L.Jt  V. 

NK  OF  NEW  YOKK. 


that 

Th. 

Karl, 
of   Craw' 
livered  to  tht 
a  sight  draft  t 
the  city  of  N-- 
by  mail  to  the 
New  York,  for  o 
on  the 
ited  by  i' 
lion  It  received  f" 
^'.■•.■r^  Thirn  T ration 


:  t  term  :A  liic  ciiipreiue  court, 
ing  a  judgment  in  favor  uf 
.1  referee.   (Reported  beli 

ecover  damages  alleged  to  have  been 
!  the  defendant  in  the  performance  of 
■.  in  collecting  a  draft  sent  to  it  for 

in  the  o| 

of  March,  i'6(t>,  the  National  Bank 

'vania,  at   Meadville,  made  and  de- 

rial  bank  located  at  the  same  place, 

"y^n  Culver,  Penn  &  ''.'o.,  bankers  in 

;  '.ff 'endorsed  the  draft  and  sent  it 

'responding-  bank  in  the  city  of 

The  draft  was  rert'ix'cd  by  the 

•   and  wr  e  morn- 

.  ivment.    i  esenta- 

ees  their  check  for  t  i:it  upon 


-    .  -i-'Ce  V-  FIvt       ..  IVTc. 

'hi    n:axim  that  serve  two  in: 

;-.'tvrK'.  ;.•  ■'.■.'jon  from  n.       .  .    ,  ror  certnin  f- 

lies  to  the  same  traiisactiuii  when  thei- 
irryjiUv  to  ♦be  onc  is  not  a  breach  of  • 
^  37  Ohio  St.  445,  447. 
nay  always,  by  mutuai 
ik;?  a  third  their  agent." 
,  40  Ga.  330,  336. 


s  not  prevent  the 
two  or  more  par- 
it,  and  wher« 
.  4'.vorth,  J,  in 

how  diverse  ti 


CARE   AND    SKILL.  7II 

count,  and  it  delivered  the  draft  to  them.  It  did  not  present  the 
check  to  the  bank  for  payment  on  that  day ;  but  it  was  sent  through 
the  clearing-house  and  presented  for  payment  the  next  day,  the  27th. 
Culver,  Penn  &  Co.,  failed  on  .that  day,  and  the  bank  refused  to  pay 
the  check.  The  defendant  then  took  the  check,  and  on  the  same  day 
returned  it  to  Culver,  Penn  &  Co.,  and  received  back  the  draft  for 
which  it  had  been  given,  and  then  formally  demanded  of  them 
payment  of  the  draft,  and  caused  the  same  to  be  protested  for  non- 
payment; and  on  the  next  day,  March  28,  due  notice  of  such  non- 
payment was  served  by  mail  upon  the  plaintiff  and  also  upon  the 
drawer. 

Upon  these  facts  it  cannot  be  disputed  in  this  state  that  sufficient 
was  done  to  charge  the  drawer.  It  was  so  decided,  upon  precisely 
similar  facts,  in  Turner  v.  Bank  of  Fox  Lake,  4  Abb.  Ct.  App.  Dec. 
434,  and  Burkhalter  v.  Second  National  Bank,  42  N.  Y.  538.  If 
therefore  the  whole  duty  of  the  defendant  to  the  plaintiff  was  dis- 
charged, as  claimed  by  the  learned  counsel  for  the  defendant,  by 
preserving  the  liability  of  the  drawer  upon  the  draft,  then  the  judg- 
ment appealed  from  is  wrong. 

It  is  the  duty  of  an  agent  who  receives  negotiable  paper  for  col- 
lection, in  case  such  paper  is  not  paid,  so  to  act  as  to  secure  and 
preserve  the  liability  thereon  of  all  the  parties  prior  to  his  principal ; 
and  if  he  fails  in  this  duty,  and  thereby  causes  loss  to  his  principal, 
he  becomes  liable  for  such  loss.  But  this  is  not  the  utmost  limit  of 
the  agent's  duty  and  liability.  He  may  so  act  as  to  charge  all  the 
parties  to  the  paper,  and  yet  become  liable  for  a  loss  occasioned  by 
his  negligence.  The  rule  which  will  measure  the  diligence  which  is 
exacted  of  a  holder  oi  such  paper,  in  order  to  charge  the  prior 
parties,  will  not  always  measure  the  diligence  which  is  required  of 
a  collecting  agent  in  the  discharge  of  his  duty  to  his  principal,  i 
Dan.  on  Neg.  Inst.,  §  330. 

Suppose  an  agent  receives  for  collection  from  the  payee  a  sight 
draff.  No  circumstance  can  make  it  his  duty,  in  order  to  charge  the 
drawer,  to  present  it  for  payment  until  the  next  day.  He  has  en- 
tered into  no  contract  with  the  drawer,  is  not  employed  or  paid  by 
him  to  render  him  any  service,  and  owes  him  no  duty  to  protect  him 
from  loss.  What  is  required  to  be  done  to  charge  the  drawer  is 
simply  a  compliance  with  the  condition  attached  to  the  draft,  as  if 
written  therein ;  and  that  condition  is  in  all  cases  complied  with  by 
presentation,  demand  and  notice,  on  the  next  day  after  receipt  of  the 
draft.  But  suppose  the  agent,  on  the  day  he  receives  the  draft,  ob- 
tains reliable  information  that  the  drawee  must  fail  the  next  day, 
and  that  the  draft  will  not  be  paid  unless  immediately  presented ; 
what  then  is  the  duty  he  owes  his  principal,  whose  interests  for  a 
compensation  he  has  agreed  with  proper  diligence  and  skill  to  serve 
in  and  about  the  collection  of  the  draft?  Clearly,  all  would  say,  to 
present  the  draft  at  once ;  and  if  he  fails  to  do  this,  and  loss  ensues, 


712  DUTIES    OF   AGENT   TO    PRINCIPAL. 

he  incurs  responsibility  to  his  principal ;  and  yet  the  drawer  would  be 
charged  if  it  was  not  presented  until  the  next  day.  Where  an  agent 
receives  a  bill  for  collection,  payable  some  days  or  months  after  date, 
in  order  to  charge  the  drawer,  he  need  not  present  it  for  acceptance 
until  it  falls  due;  and  if  he  then  presents  it  and  demands  payment, 
and  protests  it,  and  gives  the  notice,  the  drawer  is  held ;  and  yet  in 
such  a  case  he  owes  his  principal  the  duty  to  present  the  bill  for 
acceptance  at  once,  and  if  he  fails  in  such  duty,  and  loss  ensues  to 
his  principal,  he  becomes  liable  for  such  loss.  It  was  so  held  in  Allen 
V.  Suydam,  17  Wend.  368.  That  case  was  taken  to  the  Court  of 
Errors,  and  again  appears  in  20  Wend.  321,  and  although  the  judg- 
ment was  reversed  upon  the  question  of  damages,  the  same  rule  was 
laid  down  as  to  the  duty  and  liability  of  the  agent.  The  chancellor 
said :  "If  the  receiving  a  bill  by  an  agent,  to  collect,  implies  an 
obligation  on  his  part  to  take  the  necessary  steps  to  charge  the 
drawer  and  indorsers,  by  protest  and  notices,  in  case  it  is  not  ac- 
cepted and  paid  by  the  drawee,  I  do  not  see  why  due  diligence  on 
the  part  of  the  agent,  in  procuring  the  acceptance  of  the  drawee 
without  delay,  when  it  may  be  necessary  or  beneficial  to  the  inter- 
ests of  the  principal,  should  not  also  be  implied,  as  it  is  the  duty  of  a 
faithful  agent  to  do  for  his  principal  whatever  the  principal  himself 
would  probably  have  done,  if  he  was  a  discreet  and  prudent  man. 
Even  where  the  principal  is  habitually  negligent  in  attending  to  his 
own  interests,  it  forms  no  excuse  for  similar  negligence  on  the  part  of 
his  agent."  In  the  same  case,  Senator  Verplanck  said :  "It  seems 
to  be  the  general  commercial  law  of  the  civilized  world,  that  when  a 
bill  is  payable  at  a  day  certain,  the  drawer  and  indorser  are  not  dis- 
charged, if  the  bill  is  not  presented  until  the  day  of  payment.  Yet 
it  is  still  the  duty  of  the  agent  for  collection  to  present  the  bill  for 
acceptance  without  delay,  and  to  give  immediate  notice  of  refusal  to 
accept."  He  said  further :  "The  principle  is  familiar  that  an  agent 
for  pay  is  bound  to  use  such  means,  care,  skill  and  precaution  as  are 
adequate  to  the  due  execution  of  his  trust.  He  must  use  the  ordi- 
nary diligence  of  a  skillful  and  prudent  man  in  such  affairs." 

The  rule  of  diligence  applicable  to  an  agent  for  the  collection  of 
negotiable  paper,  which  has  been  stated,  was  fully  and  explicitly 
recognized  in  the  case  of  Smith  v.  Miller,  reported  in  43  N.  Y. 
172;  s.  c.  3  Am.  690,  and  again  52  N.  Y.  545.  In  that  case  the  de- 
fendants sent  to-  the  plaintiffs,  for  the  purpose  of  paying  them  for  a 
bill  of  goods,  a  draft  drawn  by  them  upon  Place  &  Co.,  of  New  York. 
On  the  same  day  the  plaintiffs  received  the  draft,  they  presented 
it  to  the  drawees  for  payment,  and  received  their  check  upon  a  New 
York  bank  for  the  amount,  and  delivered  up  the  draft.  The  check 
would  have  been  paid  if  presented  on  that  day,  but  it  was  not  pre- 
sented until  the  next  day,  and,  in  the  meantime,  Place  &  Co.  having 
failed,  the  bank  refused  to  pay  the  check.  Suit  was  then  commenced 
by  the  plaintiffs  against  the  defendants  for  the  price  of  the  bill  of 


negli!:];'0nvc 
day  they  rcC' 
in  which  tw  : 
last  does, 
which  the  ^•. 
of  the  plaint  i 
I  lercial   i 

'tv  of  i' 


Within  \. 
sentp'' 

poni, 


Second  the 


ihen^ 
of  his 


leasonab'! 
=X)und  to 
:^,  check. 
at  once,   ir  ■ 
tinn  as  s<X)n 


mer,  3  Penr.. 

question  here 

All  the  fac; 

'-  '■{  and  ai . 

that  the 

Jie  recovery. 

It  is  said 
heck  would 
Jt  is  true,  th::.  . 
Jrawn  on  that  d 


12 


he  incurs  responsibility  to  his  pruicipai;  at 

< -^   ■       !  if  it  was  not  presented  until  the  r 

a  bill  for  collection,  payable  some 

to  charge  the  drawer,  he  need  m 

alls  due;  and  if  he  then  presents 


would  be 


■  ■  .  ,  ■  M-os!>  n.  : 

acceptance  at  On 
his  principal,  he 
V.  Suydam,  17 
Errors,  and  ''"■' 
ment  was  r^ 
laid  down  a. 
said:     "Tf  : 


cepted 


FVC!1    ^ 


ch: 

it  ii  .li.l  Ji' 

acceptance 

accept."     1  ■ 

for  pay  is  L" 

adequate  to  the 


ice,  the 

a  the  du 
?  in  such  ^l\• 
such  loss,    ,  i. 
't  case  was  takti. 
'•'•  '-'d.  321,  and  ai... 

>f  damages,  the  s 
iiiy  of  the  agent.     The  en.'  ;  r:i lo- 
an ao^ent.  to  collect,  imphev  ai' 
steps  to  charge  th* 
-.  in  case  it  is  not  ac- 
i  cio  not  see  why  due  diligence  oi 
'■'•■    the  acceptance  of  the  drawer 
ary  or  beneficial  to  the  intei 
c  implied,  as  it  is  the  duty  of 
whatever  the  principal  himself 
eet  and 
■nt  in  r\-r 

se  part  c 

.    .     , _        "It  seem^ 

of  the  civilized  world,  that  when  ■■■ 
e  drawer  and  indorser  are  not  dis 
'  d  until  the  day  of  payment.     Yo 
ollection  to  present  the  bill  fo- 
inmT^di.ate  notice  of  refnsa'  t  ■ 


!iis  trust,     rie 


.A.ni.    i»'K),   a; 

t  t,'  the  pla, 
'  raft  dra 


.Von-:   ij.'i'.iK  iA)r   iiic  aiii''v;ii;. 
would  have  been  paid  if  pr^ 


I 


CARE    AND    SKILL.  713 

goods,  and  it  was  held  that  the  plaintiffs  could  not  recover,  upon 
two  grounds:  i.  Because  they  did  not  protest  the  draft  and  give 
notice  of  the  non-payment  thereof  to  the  drawers.  2.  Because  of 
their  negligence  in  not  presenting  the  check  for  payment  upon  the 
day  they  received  it,  although  they  had  but  two  hours  on  that  day 
in  which  to  present  it.  The  first  ground  does  not  exist  here ;  but  the 
last  does.  In  43  N.  Y.  176,  Judge  Allen,  after  speaking  of  the  duty 
which  the  payee  of  a  check  owes  to  the  drawer,  said :  "But  the  duty 
of  the  plaintiffs  to  the  defendants  is  not  determined  by  that  rule  of 
commercial  law.  That  rule  has  respect  only  to  the  contract  and 
liability  of  the  parties  to  the  instrument.  When  a  check  is  taken  in- 
stead of  money,  by  one  acting  for  others,  as  was  done  by  the  plain- 
tiffs, a  delay  of  presentment  for  a  day,  or  for  any  time  beyond  that 
within  which  with  proper  and  reasonable  diligence  it  can  be  pre- 
sented, is  at  the  peril  of  the  party  thus  retaining  the  check  and  post- 
poning presentment,  as  between  him  and  the  persons  in  interest 
whom  he  represents."  In  52  N.  Y.  549,  Judge  Rapallo  said:  "The 
plaintiffs  had  received  from  the  drawees  of  the  draft  the  means  of 
obtaining  the  amount  thereof,  and  by  their  own  laches  these  means 
became  unavailable,  and  the  amount  was  lost  both  to  them  and  the 
defendant." 

In  the  case  of  Turner  v.  Bank  of  Fox  Lake  and  Burkhalter  v. 
Second  National  Bank,  the  actions  were  against  the  drawers  of  the 
bills ;  and  the  sole  question  involved  was  whether  they  had  been 
properly  charged.  The  case  of  Smith  v.  Miller  is  not  in  conflict  with 
them.  That  was  an  action  against  the  collecting  agent  for  breach 
of  his  duty ;  and  what  w^as  decided  in  that  case,  or  said  in  the 
opinions  written  therein,  was  in  entire  harmony  with  the  law  as 
everywhere  laid  down.  The  rule  as  recognized  is  not  unjust  or  un- 
reasonable or  inconveniently  uncertain.  Here  the  defendant  was 
bound  to  present  this  draft  and  demand  the  money  thereon.  It  took 
a  check.  That  placed  in  its  hands  the  means  of  procuring  the  money 
at  once.  It  should  have  presented  the  check  for  payment  or  certifica- 
tion as  soon  as  with  reasonable  diligence  it  could,  and  the  delay  was 
at  its  peril.  There  is  nothing  in  conflict  with  these  views  in  Bank  of 
Washington  v.  Triplett,  i  Pet.  25,  and  West  Branch  Bank  v.  Ful- 
mer,  3  Penn.  St.  402,  to  which  our  attention  has  been  called.  The 
question  here  discussed  was  not  involved  in  those  cases. 

All  the  facts  as  to  the  draft  and  the  check  are  set  out  in  the  com- 
plaint and  are  found  in  detail  by  the  referee,  and  hence  it  cannot  be 
said  that  the  complaint  and  the  findings  are  not  sufficient  to  sustain 
the  recovery,  unless  difficulty  is  found  in  points  yet  to  be  considered. 

It  is  said  that  the  proof  did  not  warrant  the  conclusion  that  the 
check  would  have  been  paid  if  presented  on  the  26th  day  of  IMarch. 
It  is  true,  that  the  account  of  Culver,  Penn  &  Co.  was  largely  over- 
drawn on  that  day.  But  the  bank  had  been  in  the  habit  for  a  long 
time  of  allowing  them  tO'  overdraw  during  any  day,  they  depositing 


714  DUTIES   OF   AGENT    TO    PRINCIPAL. 

collaterals  or  making  the  account  good  when  it  was  made  up  the 
next  day.  This  arrangement  was  entirely  at  the  discretion  of  the 
bank,  and  had  been  acted  upon  for  a  month  or  more.  Under  it  the 
bank  paid  all  the  checks  of  Culver,  Penn  &  Co.,  drawn  on  the  26th, 
and  down  to  their  failure  on  the  27th ;  and  among  the  checks  thus 
paid  were  some  drawn  after  the  one  given  to  the  defendant.  It  was 
therefore  a  justifiable  conclusion  that  this  check  would  have  been 
paid  if  promptly  presented.  A  cause  of  action  was  therefore  estab- 
lished against  the  defendant ;  and  the  only  remaining  question  is 
the  rule  of  damages.  The  recovery  was  for  the  whole  amount  of 
the  draft,  with  interest. 

In  I  Dan.  on  Neg.  Instr.,  §  329,  the  rule  as  to  damages  in  such 
a  case  is  laid  down  as  follows :  "The  measure  of  damages  which  the 
holder  is  entitled  to  recover  of  the  bank,  or  other  collecting  agent, 
who  has  been  guilty  of  negligence  or  default  in  respect  to  it,  is  the 
actual  loss  which  has  been  suffered.  That  loss  is  prima  facie  the 
amount  of  the  bill  or  note  placed  in  its  or  his  hands ;  but  evidence  is 
admissible  to  reduce  it  to  a  nominal  sum."  In  Borup  v.  Nininger,  5 
Minn.  523,  the  same  rule  is  laid  down,  and  it  is  said :  "The  defend- 
ants may  mitigate  the  damages  by  showing  either  the  solvency  of 
the  maker,  the  insolvency  of  the  endorser,  or  that  the  paper  was 
partially  or  wholly  secured,  or  any  other  fact  that  will  lessen  the 
actual  loss  to  the  plaintiff ;  the  real  loss  occasioned  by  the  improper 
conduct  of  the  defendant  being  the  fact  for  the  jury  to  arrive  at  in 
measuring  the  plaintiff's  damages."  In  Allen  v.  Suydam,  supra,  the 
judge  at  the  trial  charged  the  jury  that  as  they  had  no  knowledge  of 
what  the  amount  of  the  damage  was,  except  from  the  proof  of  the 
amount  of  the  draft,  they  should  find  a  verdict  for  the  plaintiffs  for 
the  amount  of  the  draft,  with  interest.  This  charge  was  upheld  by 
the  supreme  court,  and  the  rule  was  there  laid  down  that  the  amount 
of  the  bill  or  note,  in  such  a  case,  is  the  prima  facie  measure  of  dam- 
ages. On  account  of  this  charge,  the  judgment  was  reversed  in  the 
Court  of  Errors,  20  Wend.  321.  Two  opinions  were  delivered,  one 
by  the  chancellor  for  reversal,  and  another  by  Senator  Verplanck 
for  affirmance.  These  learned  jurists  did  not  differ  materially  as  to 
the  rule  of  damages,  but  they  differed  in  its  application  to  the  facts 
of  that  case.  The  chancellor,  writing  the  prevailing  opinion,  laid 
down  the  rule  thus :  "Where  there  is  a  reasonable  probability  that 
the  bill  would  have  been  accepted  and  paid  if  the  agent  had  done 
his  duty,  or  where,  by  the  negligence  of  the  agent,  the  liability  of  a 
drawer  or  endorser,  who  was  apparently  able  to  pay  the  bill,  has 
been  discharged,  so  that  the  owner  of  the  bill  cannot  legally  recover 
against  such  drawer  or  endorser,  I  admit  the  agent,  by  whose  neg- 
ligence the  loss  has  occurred,  is  prinui  facie  liable  for  the  whole 
amount  thereof,  with  interest,  as  damages ;  unless  he  is  able  to  sat- 
isfy the  court. and  jury  that  the  whole  amount  of  the  bill  has  not 
been  actually  lost  to  the  owner,  in  consequence  of  such  negligence ;" 


the  !■;.->.,; 
he  reached  in 
wrong,  and  th 
more  damage:: 
it  ^-•-'  -'        - 

SV! 

\v  !:. 

lo  hi.s  ■ 
to  the  : 
his  prir:.  , 
the  rule  v. 
Ryl.  37' 
dam,  •■ 
bill   ■ 
th 
hi 


h- 
er . 

'nil 

C»;i 

biU. 

The   - 
undertake 
that  basis. 
erence  to  tt 
diUgence. 
of  pavtp^' 
nc' 

up_ 

until  it  coiii 
for  the  m-) 
was  preseii 

dr. 
U-      . 
.that  it 
its  com 
do  so. 

But  this  ._.. 
puted  facts  of  • 
ages.     The  dt* 
charged,  and  sc 
edies  of  the  plaui 


i.)i;''-ir;^ 


./.     1  lus  arr. 
id' had  been 
bain<  paid  all  the  check.-^  v>i  ( 
and  down  to  their  failure  or 
paid  were  some  drawn  after 
tiierefore  a  justv*^--^^'^-  ••'.   ^ 
paid  if  prompt] . 
lished  again  ' 
the  rule  of 
the  draft,  with 
In  I  Dan.  rn> 
a  case  is  lai' 
hold.-  ^  - 

acu.cii 
amonn) 


count  good  whe' 

:   was  ei"" 
■  >n  for  a 
Julver,  Penn 

:h-   27t]l  ;  < 


.1  the 
-t  the 


cor: 


tne  am' 

the  supii:.,!.,  , 

<'>t  the  bill  or  noi 

bv 

for 
the 

rule  of  dan; 

'    •   case,    i ; 
'■e  rule  thus ; 
'  ■  'tld  have  (-■c^ 
where,  bv  t 

use  of 

'   +1 


e   orny 
^vas  for 


lit  of 

Stir! 


sg,  the  rule  as  to  damag'" 
The  measure  of  damage? 
iie  bank,  or  other  collect! u^  c.,..; 
i  or  default  in  respect  to  it,  is  tii 
.  ied.    That  loss  is  prima  facie  tb 
in  its  or  his  hands ;  but  evidence 
am."   In  Borup  v.  Nininger, 
M.  and  it  is  said:  "The  defenii 
;ng  either  the  solvency  o> 
er,  or  that  the  paper  wa- 
my  other  fact  that  will  lessen  th': 
al  loss  occasioned  by  the  improper 
!ie  fact  for  the  jury  to  arrive  at  ii 
."   In  Allen  v.  Suydam,  supra,  tht 
V  that  as  they  had  no  knowledge  o 
,  except  from  the  proof  of  th. 
a  verdict  for  the  plaintiffs  fc>' 
merest.   This  charge  was  upheld  b 
'-  *-here  laid  down  that  the  amouir. 
'le  prima  facie  measure  of  dan: 
•lit  was  r-  .  •     .' 

■  =;  were 
inoclicr 
iid  not 


of  the  ageii 


amount  thereof,  with  interest,  as  dar 
■..",    rhe  court. and  jury  that  the  ^'^ 
rually  lost  to  the  owner,  r 


CARE   AND    SKILL.  715 

and  he  claimed  that  the  facts  in  that  case  did  not  clearly  show  that 
the  loss  of  the  plaintiffs  was  the  whole  amount  of  the  bill ;  and  hence 
he  reached  the  conclusion  that  the  charg-e  of  the  trial  judge  was 
wrong,  and  that  a  new  trial  should  be  granted,  "to  the  end  that  no 
more  damages  may  be  recovered  than  such  as  a  jury  may  believe 
it  probable,  for  the  evidence  adduced,  that  the  plaintiffs  may  have 
sustained  from  the  negligence." 

When  the  agent  so  deals  with  the  draft  as  to  secure  and  preserve 
to  his  principal  all  his  rights  and  remedies  against  the  prior  parties 
to  the  bill,  he  is  liable  only  for  the  actual  or  probable  damages  which 
his  principal  has  sustained,  in  consequence  of  his  negligence ;  and  so 
the  rule  was  recognized  to  be  in  Van  Wart  v.  Woolley,  5  Dowl.  & 
Ryl.  374.  In  Bank  of  Scotland  v.  Hamilton,  cited  in  Allen  v.  Suy- 
dam,  where  the  agent  by  his  negligence  in  not  sooner  presenting  a 
bill  for  acceptance  became  prima  facte  liable  for  the  whole  amount 
thereof,  he  was  allowed  in  mitigation  of  damages  a  dividend  which 
his  principal  would  be  entitled  to  out  of  the  drawer's  estate  in 
bankruptcy. 

In  all  these  cases,  the  negligence  of  the  agent  being  established,  it 
is  a  question  of  damages,  and  the  agent  may  show,  notwithstanding 
his  fault,  that  his  principal  has  suffered  no  damages ;  and  the  recov- 
ery can  then  be  for  nominal  damages  only.  He  may  show,  in  reduc- 
tion of  the  damages,  that  if  he  had  used  the  greatest  diligence,  the 
bill  would  not  have  been  accepted  or  paid,  or  that  his  principal  holds 
collaterals,  or  has  an  eflFectual  remedy  against  the  prior  parties  to  the 
bill. 

The  defendant  did  not  receive  the  check  from  the  plaintiff  and 
undertake  to  collect  it ;  and  this  case  must  not  be  disposed  of  upon 
that  basis.  It  received  the  draft  for  collection ;  and  it  was  in  ref- 
erence to  that  that  it  came  under  obligation  to  the  plaintiff  to  act  with 
diligence.  It  presented  the  draft  for  payment,  and  for  the  purpose 
of  paying  the  same,  the  drawees  delivered  to  it  an  order  upon  a 
neighboring  bank  for  the  amount,  and  instead  of  getting  the  money 
upon  the  order  at  once,  as  it  could  have  done,  it  negligently  delayed 
until  it  could  not.  It  had  no  more  right  to  delay  presenting  the  order 
for  the  money  than  it  would  have  had  to  decline,  when  the  draft 
was  presented,  to  receive  the  money  until  the  next  day,  in  case  the 
drawees  had  expressed  a  willingness  to  pay  then.  The  gravamen  of 
the  plaintiff's  complaint  is  that  the  defendant  acted  so  negligently 
that  it  did  not  get  payment  of  the  draft  when  it  had  the  means  under 
its  control,  and  the  power,  by  the  exercise  of  reasonable  diligence,  to 
do  so. 

But  this  fault  of  the  defendant,  so  far  as  disclosed  by  the  undis- 
puted facts  of  this  case,  caused  the  plaintiff  none  but  nominal  dam- 
ages. The  defendant,  as  shown  above,  caused  the  drawer  to  be 
charged,  and  secured  and  preserved  against  it  all  the  rights  and  rem- 
edies of  the  plaintiff;  and  the  presumption,  in  the  absence  of  proof, 


yi6  DUTIES    OF   AGENT   TO    PRINCIPAL. 

is  that  the  drawer  was  solvent,  and  responsible  for  the  amount  of  the 
draft.  Ingalls  v.  Lord,  i  Cow.  240 ;  Allen  v.  Suydam,  supra.  But 
in  this  case  we  need  not  rest  upon  this  presumption,  as  the  complaint 
alleges  that  the  draft  could  be  collected  from  the  drawer,  if  properly 
charged.  The  result  is  that  the  plaintiff  has  recovered  against  the 
defendant,  as  damages  for  its  negligence,  the  full  amount  of  the 
draft.  But  the  draft  is  not  by  this  judgment  transferred  to  the  de- 
fendant, and  it  is  not  subrigated  to  the  plaintiff's  rights  and  remedies 
thereon  against  the  drawer ;  and  the  plaintiff  still  holds  the  draft, 
and  for  aught  that  appears  in  this  case,  can  enforce  it,  or  has  en- 
forced it,  for  the  full  amount  against  the  drawer.  To  justify  such 
judgment,  the  plaintiffs  should  have  shown  that  the  draft  was 
wholly  worthless,  or  that  for  some  reason  the  responsibility  of  the 
drawer  thereof  was  wholly  unavailable  to  it.  The  plaintiff  is  enti- 
tled to  indemnity,  and  no  more,  for  the  loss  caused  by  the  fault  of 
the  defendant,  and  it  must  show  the  extent  of  such  loss. 

It  was  said  by  the  learned  counsel  for  the  plaintiff,  upon  the  argu- 
ment before  us,  that  by  the  law  of  Pennsylvania  the  drawer  was  not 
charged  upon  the  draft  by  what  was  done  by  the  defendant.  But 
that  law  was  not  proved ;  and  in  the  absence  of  proof,  we  must  as- 
sume that  the  common-law  rule  prevails  there  which  prevails  here. 
It  was  also  stated  that  the  plaintiff  had  sued  the  drawer  upon  the 
draft  and  failed  to  recover,  because  it  was  not  properly  charged. 
But  there  is  also  no  proof  of  that. 

Therefore,  for  the  error  as  to  the  damages,  the  judgment  must  be 
reversed  and  a  new  trial  granted,  costs  to  abide  event. 

All  concur,  except  Folger  and  Miller,  JJ.,  not  voting,  and  Church, 
Ch.  J.,  absent. 

Judgment  reversed.^ 


HEINEMANN  et  al.  v.  HEARD  et  al. 
1872.     Court  of  Appeals  of  New  York.     50  N.  Y.  27. 

Appeal  from  judgment  of  the  general  term  of  the  supreme 
court  in  the  first  judicial  district,  affirming  a  judgment  in  favor 
of  defendants  entered  upon  an  order  of  the  court  at  circuit  directing 
a  dismissal  of  the  complaint.     (Reported  below,  58  Barb.  524.) 

This  action  was  brought  to  recover  damages  for  an  alleged  breach 
of  duty,  upon  the  part  of  defendants,  as  plaintiffs'  agent. 

The  plaintiffs  are  co-partners,  carrying  on  business  in  the  city 
of  New  York  under  the  firm  name  of  Heinemann  &  Payson. 

The  defendants  are  commission  merchants  and  co-partners,  carry- 

^  Accord:  Merchants'  Bank  v.  Stafford  Bank,  44  Conn.  564  See  Bank  of 
Delaware  Co.  v.  Broomhall,  38  Pa.  St.  135. 


ing"  Oil  tiiat  !;j,-- 
the  firm  name    ■ 
rnngcmeiit  was 
by  wliich  the  lav 
for  the  purchas; 
tiffs.     In  order 
teas  and  silks. 
Peabody  &  <' 
plaintiffs.     '; 
purchase  b; 
the   defend; 
i5,cx)0  in  No.  x 
for  hunif'   1  > 
Konr;:,  ■ 
Onion  L'-,     • 


n  or  b! 
of  IS.  7 
ling,  fr  .  [  insurai 

Tai.  2^1 

The  I  Febn.i^ry,  iJV; 

second 
to  be  d  5 
vSeptem : 
plaintif' 
fend  an; 
defend? 
credit  i; 

At  this  :., 
between  t'l- 
letter  date*!  i  iw-  o, 
amount  unu> 
benefit  of  tl- 
August  8,  [ 
facts  appear 

ILVPALLO,  J  - 

diligence,  and  \.'-  (i'ir.k 
the  jury  on  th 
fraud  on  the  r 
action  for  ; 
An  agent  is  :..  .. 
and  to  such  ski  I" 
capacity  engagt 
1 86.    Whether 
usually  a  questic:      i  :. 


It) 


DVTIES   OF   AGENT   TO 


IS  t!'  awer  was  solvent, 

<''■  ■  Is  V.  Lord,  1  <"""" 

e  need  not  r 
ai  the  draft  could  i".- 
The  result  is  that  t 
![,  as  damages  for    .-.} 
:  '.ut  the  draft  is  r      '^^• 
';ant,  and  it  is  not  - 
.Hereon  against  the  '' 
and  for  aught  that  .'i 
forced  it,,  for  the  '•- 
judgment,   the   j.'i 
wholly  worthles'- 
drawer  thereof  ■, 
lied  to  ii 
the  deiv^ 
I' 


an.' 

this  pre- 
■  'ilected  fri' 
ic  plaintiff  ■ 
;  negliji' 

th.is  ju. 


it  of  the 

•     But 

' '  /laint 

the 

rlie 


Ch.  J.,  .r 

TndgTtiiexil  rc\ 


■  the  plain  nil 
;'u-  plaintiff  , 

:>e,  can  enfo; 
....  the  drawer,      i  ■ 
nave   shown    that   th 
>;  the  respon> 
it.     Thepla  ; 

■  •r  the  joss  caused  by  the  fault  of 
lie  extent  of  stich  loss. 

el  for  the  plaintiff,  upon  the  argu- 
Pennsylvania  the  drawer  was  not 
.vas  done  by  the  defendant.  But 
;]ie  absence  of  proof,  we  must  as- 
icvails  there  which  prevails  here. 
iil  had  sued  the  drawer  upon  the 
ise  it  was  not  properly  charged. 

■'-  ''amages,  the  judgment  must  be 
to  abide  event. 

-i     ,,.,.  ..,;.,.,  g„(}  Church, 


TT 


TTTT  \VT\ 


Appeal   from  juiL.  -c   general   t 

-'   '"   the  fir?^    '  ;.   affirming 

lants  err  or  of  the  cO' 

;.  ':;-!!!:  sal  of  the  cd:  ^fiorted  h<  ' 

This  action  was  bn:  --er  dan: 

of  duty,  upon  the  part  oi  ts,  as  p! 

The  plaintiffs  are  co-j  carrvin 

of  New  York  under  the  firm  name  of  i 
The  defendants  are  commission  '> - 

'  .Irrofd-    Merchants'  Bank  v.  Staft' 
''.  h.v.;:r.:  C''   v.  Broomhall,  38  Pa.  St.  . 


1  breach 

the  city 

.  .arry- 
Bank  of 


CARE    AND    SKILL.  717 

ing-  on  that  business  at  Hong  Kong'  and  elsewhere  in  China,  under 
the  firm  name  of  Augustine  Heard  &  Co.  In  the  year  1864  an  ar- 
rangement was  entered  into  between  the  plaintiffs  and  defendants, 
by  which  the  latter  were  to  become  the  correspondents  of  the  former 
for  the  purchase  of  teas  and  silks  in  China  for  account  of  the  plain- 
tiffs. In  order  to  put  the  defendants  in  funds  for  the  purchase  of 
teas  and  silks,  a  credit  in  favor  of  the  defendants,  with  Georg^e 
Peabody  &  Co.,  of  London,  for  £15,000  sterling,  was  obtained  by 
plaintiffs.  The  plaintiffs  gave  defendants  their  first  instructions  to 
purchase  by  a  letter  dated  the  23d  December,  1864,  addressed  to 
the  defendants  at  Hong  Kong.  It  directed  the  investment  of 
£5,000  in  No.  I  re-reeled  silk  (if  possible,  all  white),  at  i8s.  sterling 
for  humchuck,  or  i6s.  sterling  for  No.  i  Loong"  Kong  or  Kow 
Kong,  free  on  board ;  and  £10,000  sterling-  in  fair  cargo  Foochow 
Oolongs,  at  a  price  not  exceeding  gd.  (say  gd.  sterling)  per  pound. 
These  instructions  were  modified  by  a  letter  dated  May  2,  1865,  in 
these  respects,  namely :  The  limit  of  price  for  silk  was  increased  five 
per  cent. ;  and  for  the  Oolongs  the  defendants  were  authorized  to 
substitute  fine  Moyune  teas  from  Canton  or  Shanghai,  the  usual 
assortment  of  fully  fair  cargo,  at  a  price  of  is.  yd.  per  pound  ster- 
ling-, free  on  board,  without  freig-ht  and  insurance ;  for  the  Ting 
Tai,  2d.  per  pound  higher. 

The  first  letter  was  received  on  the  22d  February,  1865,  and  the 
second  on  the  7th  of  July,  1865.  By  its  original  terms  the  bills  were 
to  be  drawn  prior  to  the  ist  July,  1865  ;  the  time  was  extended  to 
September  i.  The  defendants  were  notified  of  the  extension  by  the 
plaintiffs'  letter  of  May  12,  which  notice  was  received  by  the  de- 
fendants on  the  6th  July,  1865.  No  purchases  were  made  by  the 
defendants  for  the  plaintiffs  under  these  orders,  nor  any  part  of  the 
credit  used. 

At  this  time  there  was  a  certain  joint  account  arrangement  on  foot 
between  the  plaintiffs  and  the  defendants,  and  the  plaintiff's,  in  a 
letter  dated  June  6,  1865,  advised  the  defendants  as  follows :  "Anv 
amount  unused  of  our  first  credit  of  £15,000  you  may  apply  for  the 
benefit  of  the  joint  account  arrangement."  This  letter  was  received 
August  8,  1865  ;  no  part  of  the  credit,  however,  was  applied.  Other 
facts  appear  in  the  opinion. 

Rapallo,  J. —  *  *  *  The  question  in  the  case  was  one  of  due 
diligence,  and  we  think  that  there  was  sufficient  evidence  to  go  to 
the  jury  on  that  point.  The  position  cannot  be  maintained  that 
fraud  on  the  part  of  the  agent  is  necessary  to  subject  him  to  an 
action  for  neglecting  to  perform  a  duty  which  he  has  undertaken. 
An  agent  is  bound  not  only  to  good  faith  but  to  reasonable  diligence, 
and  to  such  skill  as  is  ordinarily  possessed  by  persons  of  common 
capacity  engaged  in  the  same  business.  Story  on  Agency.  §§  183, 
186.  Whether  or  not  he  has  exercised  such  skill  and  diligence  is 
usually  a  question  of  fact ;  but  its  omission  is  equally  a  breach  of 


7l8  DUTIES   OF   AGENT    TO    PRINCIPAL. 

his  obligation  and  injurious  to  his  principal,  whether  it  be  the  re- 
sult of  inattention  or  incapacity,  or  of  an  intent  to  defraud.  In  the 
case  of  Entwisle  v.  Dent  ( i  Exch.  822)  there  was  an  element  of 
fraud  as  well  as  breach  of  duty ;  but  the  judgment  of  the  court  was 
not  founded  upon  the  fraud,  nor  could  it  be,  as  the  action  was  for 
breach  of  the  implied  contract  of  the  defendant  to  act  according  to 
instructions. 

As  an  independent  ground  for  sustaining  the  nonsuit,  it  is  claimed, 
on  the  part  of  the  defendants,  that  the  order  to  purchase  silk  was  dis- 
cretionary, and  that  for  that  reason  they  are  not  responsible  in  dam- 
ages for  their  failure  to  execute  it. 

By  reference  to  the  letter  of  December  23,  1864,  it  will  be  seen 
that  no  discretion  was  given  whether  or  not  to  purchase.  The  order 
to  invest  £5,000  in  silk  of  one  or  other  of  the  particular  descriptions 
mentioned,  and  at  the  prices  named,  vv^as  absolute.  The  only 
matter  left  to  the  discretion  of  the  defendants  was  the  selection  of 
the  silks  as  well  as  the  teas.  They  were  instructed  to  purchase  either 
Cumchuck  at  i8s.,  or  No.  i  Loo  Kong,  or  Kow  Kong,  at  i6s.,  and 
were  requested  to  obtain  all  white  if  possible ;  otherwise,  to  separate 
the  white  from  the  yellow.  No  other  matters  were  left  to  their  dis- 
cretion. It  was  their  duty  to  select  some  of  these  descriptions,  if 
they  were  to  be  obtained,  and  to  use  reasonable  diligence  in  obtain- 
ing the  required  quantity  in  time  to  ship  under  the  letter  of  credit. 
It  is  argued  that  as  they  had  discretion  in  the  selection  of  the  silks, 
and  had  to  determine  whether  it  was  possible  to  obtain  all  white,  no 
period  can  be  fixed  as  the  time  when  they  were  bound  to  decide  these 
matters  and  make  the  purchase.  This  argument  is  not  satisfactory. 
The  necessity  of  making  a  selection  may  have  justified  them  in  not 
accepting  the  first  ofifer  which  they  may  have  met  with,  and  in  look- 
ing further  for  the  purpose  of  complying  with  the  wishes  of  their 
correspondents;  but  it  would  not  justify  them  in  allowing  all  oppor- 
tunities to  pass,  and  the  time  to  elapse  within  which  they  could  pur- 
chase under  the  letter  of  credit.  They  were  bound  to  make  a  selec- 
tion within  a  reasonable  time,  and,  at  all  events,  before  the  time  for 
shipping,  under  the  credit,  expired.  The  prices  appear  to  have 
continued  below  their  limit  from  the  early  part  of  June  until  the 
first  term  of  the  letter  of  credit  had  run  out ;  yet  they  allowed  all  that 
time  to  elapse  without  making  any  selection.  Such  delay  was  cer- 
tainly evidence  of  want  of  due  skill  and  diligence,  if  attributable 
merely  to  a  failure  to  come  to  a  decision. 

But  the  defendants  do  not,  in  their  correspondence,  take  any  such 
ground,  or  claim  that  they  regarded  themselves  as  having  any  dis- 
cretion as  to  purchasing  the  silks  and  tea.  On  the  contrary,  in  their 
letter  of  February  27,  1866,  they  say:  "We  were  bound  to  follow 
your  instructions  for  the  investment  of  £15,000  credit  first  sent,  and 
have  already  explained  to  you  our  reasons  for  not  having  purchased 
silk;"  referring  to  their  letter  of  December   14,    1865.     They  rest 


tlieir  jusufication  wTi  >'!•    rrv 
below  the  plauitif: 
them  at  still  li  '  - 
in  persisting  i 

the  letter  -i'  c-. 
Judg-irjcnt  r. 


1834.     Supre: 


ASSUMV. 

implied  pr. 
to  him.  Wi 
and  he  is 


F-  . 

the  dt 

made  a 

indebitotv: 

names,  d?' 

the   officer 

ad  day, 

declan. 

writ,  and 

court  of  ; 

plaintiffs,  ' 

sell  appeal 

entered  the 

The  CO 

in  alif 

'iuer  sui- 

■  ■  r.  ed  any  ]■: 

The   defend: 

:its,   the   wcr 

iswer,  that  fc 

m  question    " 

the  blank  . 

court  her<*  d- 


roperty  of  Bissell.     He 

,:..:  the  common  counts  in 

h   blank  spaces   for   sums, 

:ounts.      "'  ■         ■] 

value    <■ 


'•-S    OF    AC/cl^ 


liis  '  and  injurious  to  his  principal,  v 

■  ■  :ition  or  incapacity,  or  of  an  inft  i 

ntwisle  v.  Dent  (i  Exch.  822) 
■  ■.V  y[  a-  well  as  breach  of  duty  ;  but  the  ju...giiit.ii 
not  founded  upon  the  fraji>i.  nor  could  it  be,  as  th( 
the  ini}  '' 


tlie  re- 
in the 
iient  of 
— t  was 
for 


As  an  inde; 
on  the  part  01 
cretioriary,  and  ti' 
ages  for  their  *' •^: 

By  referen 
that  no  discr> 
to  invest  f5,c 
mentionc'' 
matter  lef 
the  silks  ' 


Uicy  wee- 
ing' the  I 
It  is  argi 
and  h;;.'  ■ 
peril 

matte  1.-    '...'. 
The  necessit} 
-ring  th(_ 


tiase  under  the  i 
;r>r,  -.x-:iTiin  a  reasu.... 
under  th» 


wuliov. 
e  of  vv: 

failure  to 


incKti*    l,L.'  a 


But  the  defendants 
ground,  or  claim  that  the 
cretion  is  to  purchasing  ti 
letter  of  February  27,  iS' 

■  ■     ;         ons  for  the  in^ 


they  are  not  ret; 

jceraber  23,  1864. 
er  or  not  to  purchase,      i 
■  her  of  the  particular  dess 
aned,    was    absolute.      Tlic   oiily 
defendants  was  the  selection  of 
were  instructed  to  purchase  either 
\  ,iip-,  or  Kow  Kong,  at  i6s.,  and 
ssible;  otherwise,  to  separate 
-;  iriatters  were  left  to  their  dis- 
t  some  of  these  descriptions,  if 
use  reasonable  diligence  in  obtain- 
to  ship  under  the  letter  of  credit. 
•^tion  in  the  selection  of  the  silks, 
IS  possible  to  obtain  all  white,  no 
.  t\  they  were  bound  to  decide  these 
'  ni>  argument  is  not  satisfactory. 
ly  have  justified  thtin  in  not 
V  have  met  with,  and  in  look- 
ing with  the  wishes  of  their 
them  in  allowing  all  oppor- 
vithin  which  thev  cot:M  pur- 
were  bound  to  tr 
All  events,  before 
.    d.     The  prices  app 
ihe  early  part  o^    '■ 
run  out:  vet  the 


1. 
:orresr; 
d  themf 
',d  tea.    ' 
.ay:    "\^ 
ent  of  ""' " 


explained  to  you  our  reaj 
g  to  their  letter  of  Deccii.Lci 


H. 


ec- 

; . .  w 

,    ...  lor 

ear 

to  have 

'-•itil  the 

-dl  that 

■er- 
,  1  ■> 

)iy  such 

'^S 

any  dis- 

irv 

,  in  their 

■A' 

.0  follow 

cut,  and 

rchased 

^cy  rest 

CARE   AND    SKILL.  719 

their  justification  wholly  upon  the  ground  that  while  the  silks  were 
below  the  plaintiff's  limits  they  held  off  in  the  attempt  to  obtain 
them  at  still  lower  prices.  They  were  scarcely  justified,  however, 
in  persisting  in  this  attempt  until  it  became  too  late  to  ship  under 
the  letter  of  credit  as  originally  drawn  or  as  extended.^  *  *  =r: 
Judgment  reversed. - 


VARNUM  ET  AL.  V.  MARTIN. 
1834.     Supreme  Judicl\l  Court  of  Massachusetts.     15  Pick  440. 

Assumpsit  against  the  defendant  as  an  attorney  at  law,  on  an 
implied  promise  by  him  to  do  the  business  of  the  plaintiff's  intrusted 
to  him,  with  proper  care,  skill  and  fidelity,  for  a  reasonable  reward ; 
and  he  is  charged  with  negligence,  carelessness  and  want  of  skill, 
whereby  the  plaintiffs  lost  a  debt  due  to  them. 

The  plaintiffs  proved,  that  on  August  27,  1832,  a  debt  of  $1,000 
was  due  to  them  from  E.  M.  Bissell,  and  that  on  that  day  they  em- 
ployed the  defendant  to  collect  it,  and  gave  him  directions  to  secure 
the  demand  by  an  attachment  of  personal  property  of  Bissell.  He 
made  a  writ,  using  a  blank  form  in  which  the  common  counts  in 
indebitatus  assumpsit  were  printed  with  blank  spaces  for  sums, 
names,  dates,  etc.  There  were  no  other  counts.  The  writ  directed 
the  officer  to  attach  property  to  the  value  of  $1,200,  and  the 
ad  damnum  was  laid  at  the  same  sum,  but  the  defendant  inserted  a 
declaration  for  $12  only  instead  of  $1,200.  The  officer  served  the 
writ,  and  property  to  the  value  of  $1,200  was  attached.  In  the 
court  of  common  pleas,  judgment  was  rendered  pro  forma  for  the 
plaintiffs,  for  the  amount  of  their  debt;  from  which  judgment  Bis- 
sell appealed,  but  neglected  to  enter  his  appeal,  and  the  plaintiffs 
entered  the  action  in  this  court  for  an  affirmation  of  the  judgment. 
The  court  refused  to  affirm  it,  because  the  declaration  was  erroneous 
in  alleging  the  debt  to  be  only  $12.  Bissell  became  insolvent  in 
November  subsequent  to  the  attachment,  and  the  plaintiffs  never 
received  any  part  of  their  demand. 

The  defendant  proved,  that  formerly,  in  the  blank  forms  of 
writs,  the  word  hundred  was  printed.  The  plaintiffs  proved  in 
answer,  that  for  a  year  or  more  previous  to  the  making  of  the  writ 
in  question,  the  blank  forms  had  omitted  the  word  hundred,  and  that 
the  blank  forms  used  by  the  defendant  for  the  June  term  previous 

^  The  court  here  discussed  the  question  of  damages. 

■  The  same  test  of  care  and  skill  was  applied  to  one  who  invested  money  for 
another.   De  Hart  v.  De  Hart,  70  N.  J.  Eq.  774. 

In  Kennedy  v.  McCain,  146  Pa.  St.  63,  it  was  decided  that  an  agent  investing 
money  for  his  principal  does  not  guarantee  the  sufficiency  of  the  security. 

See  Page  v.  Wells,  27  Mich.  415,  420. 


720  DUTIES    OF   AGENT   TO   PRINCIPAL. 

were  of  the  new  kind ;  and  that  at  the  time  when  he  made  the  writ  in 
question,  he  made  another  writ  against  Bissell  in  favor  of  two  of 
the  plaintiffs,  in  which  he  wrote  the  word  hundred,  the  bank  forms 
used  in  both  cases  being  of  the  same  kind. 

It  was  conceded  that  the  defendant  was  a  man  of  competent  skill 
in  his  profession,  and  the  case  was  put  upon  the  ground  of  negli- 
gence. 

The  jury  were  instructed,  that  the  defendant  was  required  to  pos- 
sess competent  skill,  and  if  there  was  a  want  of  ordinary  skill  he 
would  be  liable ;  that  an  attorney  is  not  liable  for  every  mistake, 
but  if  there  is  a  want  of  reasonable  care  and  diligence,  he  is  liable  ; 
and  that  if  he  exercises  reasonable  care  and  diligence,  he  is  not 
liable. 

The  jury  found  a  verdict  for  the  plaintiffs.  If  the  court  should  be 
of  opinion  that  this  evidence  was  not  sufficient  to  support  the  verdict, 
a  new  trial  was  to  be  granted. 

Per  Curiam. — 'Whether  the  c[uestion  of  negligence  should  be 
determined  by  the  jury,  or  by  the  court  upon  the  facts  being  found 
or  agreed,  it  is  not  necessary  to  consider ;  as  we  are  of  opinion,  that 
the  facts  show  a  want  of  ordinary  care  and  diligence  on  the  part  of 
the  defendant,  and  that  there  is  no  good  reason  for  disturbing  the 
verdict.  In  a  case  like  this,  where  care  was  required,  it  was  the 
duty  of  the  attorney  to  read  over  the  writ,  to  see  that  it  was  correct. 
And  the  defendant  cannot  allege  in  excuse,  the  change  which  had 
taken  place  in  the  blank  forms,  for  the  later  forms  had  been  in  use 
for  a  year  or  longer,  and  on  the  same  day  that  the  writ  in  question 
was  made,  he  used  one  of  these  forms  and  inserted  the  word  hundred. 

Judgment  on  the  verdict. 


THOMAS  V.  DABBLEMONT. 
1903.     Appellate  Court  of  Indiana.     31  Ind.  App.  146. 

This  was  an  action  against  the  appellant,  a  physician,  for  mal- 
practice. The  trial  court  gave  certain  instructions  to  the  jury,  to 
which  appellant  took  exception.^ 

CoMSTOCK,  J.  (After  deciding  other  questions.) — Objections 
were  made  and  exceptions  taken  to  the  giving  to  the  jury  of  certain 
instructions ;  with  others,  the  seventh.  It  is  as  follows :  'Tf  a  per- 
son holds  himself  out  to  the  public  as  a  physician,  he  must  be  held  to 
possess  and  exercise  ordinary  skill  and  knowledge  and  care  in  his 
profession  in  every  case  of  which  he  assumes  the  charge,  whether  in 
the  particular  case  he  receives  a  fee  or  not.  Where  an  injury  results 
from  the  want  of  ordinary  skill  or  attention  in  the  treatment  of  a 

^  The  statement  of  the  facts  is  abbreviated. 


fers  his  services  ti. 
contracts  with  tho:-e  ->. ;;  ^  ^ 
and  experience  ^^^'•''^  •':  ' 
or  profess  to 
required  by  tl  ■     . 
ment  as  necessarv  lo  quali; 
■*^ession  successfnliy." 

•A  physician  '■  -  Dound  to 
gree  of  skill   ■ 
profession  pr 
Ind.  App. 
12  Ind.  Ai 
L.  R.  A.  ■ 
95  Ind.  ;;;   . 
plained  of  cnyr 

tor    '        • 

for  a  liCvV  triai. 


:iv 


neii  V.  Hosier,  to  i: 


)ns  to  sustain  ap 


CI 


FUND  &  SAi'Tvn^  as^. 
FRIEDLE  > 


l88<>.       SrT-TJF.ME  COURI 


Mitch  ' 
Fund  and 
sureties  o  : 
the  loan  a 
the  defendai; 
tion. 

It  is  avi. ! 
lars  to  one 
advice  given  1 

*  A  portion  of 
» "A  t.Im -■■■.■■ 

that  h. 

reason r 

clans  and  ^. 

regarded  by 

to  engage  in  iht 

under  the  furtho 
plying  hi? 


^Socia- 


iS, 

(ilv   ri^;ir.>-    rt-; 


i.aMpbier 


the  new  kind  ;  and  that  at  ttie  time  w  . 

,,...;!,  he  made  another  writ  against  Bis:;.;: 

the  plaintiffs,  in  which  he  wrote  the  word  hnndi 

•      '    n  both  cases  bein^j  of  the  same  kir  ' 

,'.s  conceded  that  the  defendant  \v; 

profession,  and  the  case  was  put  ■ 


wnt  m 
-  :\vo  of 
tik  forms 

;t  skill 


'ihe  jury  wet 
s;ess  competenl 
."  ould  be  liable ;  that 
but  if  there  is  a  want 
and  that  if  he  exe; 
liable. 

The  jl1r^ 

of  "Opi'-;' 
a  new 

or  a^rc  ■ 


the  defenUci 

'"  was  a  wui  . 

-  not  liable 
....  care  and  dili^.  . 
lable  care  and  diligt. 


is  not 


ro\ 


he  plaintiffs.    If  the  court  sh^'Uld  lie 
not  sufficient  to  support  the  verdict, 

question  of  negligence  should  be 
at  court  upon  the  facts  being  found 
consider ;  as  we  are  of  opinion,  that 
ry  care  and  diligence  on  the  part  of 

no  good  reason  for  disturbing  tltc 
>ere  care  was  required,  it  was  the 

the  writ,  to  see  that  it  was  correct. 
^  in  excuse,  the  change  which  had 
:or  the  later  forms  had  been  in  u 

same  day  that  the  writ  in  qi: 

r-inc  nn/I  ■;n';firl  cil   tin-  \\Niril   /; ; 


•  BLEMONT. 


.03.     Ait 


This  was  an  ac- 
practice.  The  trial 
Mdiich  appellant  t,->, . 

Com  STOCK,  J 
were  made  and  ev 
instructions;  with  c 
son  holds  himself  oui  t 
possess  and  exercise  Oi 
profession  in  every  case  oi  which  he 
the  particular  case  he  r'-cr'ves  a  fee  ■; 

om  the  want  of 


he  appelbnt,  a  phy.^ 

actions  to  tiu 


•;nth.      : 

He  as  a  p 
kill  and 


nestion.'- 


statement  of  the  tacts  ir^ 


CARE   AND    SKILL.  721 

case,  the  physician  is  responsible  for  such  injury.  A  person  who  of- 
fers his  services  to  the  pubhc  in  any  profession  or  business  impHedly 
contracts  with  those  who  employ  him  that  he  is  a  person  of  the  skill 
and  experience  which  is  possessed  ordinarily  by  those  who  practice 
or  profess  to  understand  the  same  art  or  business  which  is  generally 
required  by  those  most  conversant  with  that  profession  or  employ- 
ment as  necessary  to  qualify  him  to  engage  in  such  business  or  pro- 
fession successfully." 

A  physician  is  bound  to  possess  and  exercise  only  the  average  de- 
gree of  skill  possessed  and  exercised  by  members  of  the  medical 
profession  practising  in  similar  localities.  Baker  v.  Hancock,  29 
Ind.  App.  456;  Gramm  v.  Boener,  56  Ind.  597;  Smith  v.  Stump, 
12  Ind.  App.  359;  Whitesell  v.  Hill,  loi  Iowa  629,  70  N.  W.  750,  37 
L.  R.  A.  830 ;  Becknell  v.  Hosier,  10  Ind.  App.  5  ;  Jones  v.  Angell, 
95  Ind.  376.  Under  the  foregoing  decision  the  instruction  com- 
plained of  cannot  be  upheld.  It  fixes  the  standard  of  skill  required 
too  high.-     *     *     * 

Judgment  reversed  with  instructions  to  sustain  appellant's  motion 
for  a  new  trial. ^ 


CITIZENS'  LOAN  FUND  &  SAVINGS  ASSOCIATION  v. 
FRIEDLEY  et  al. 

1889.     Supreme  Court  of  Indl\xa.     123  Ind.  143. 

Mitchell,  C.  J. — This-  suit  was  instituted  by  the  Citizens'  Loan 
Fund  and  Savings  Association  against  Harmon  H.  Friedley  and  the 
sureties  on  this  bond  to  recover  money  alleged  to  have  been  lost  to 
the  loan  association  on  account  of  the  negligence  and  want  of  skill  of 
the  defendant  Friedley  while  acting  as  the  attorney  of  the  associa- 
tion. 

It  is  averred  that  the  association  made  a  loan  of  four  hundred  dol- 
lars to  one  of  its  share-holders  in  August,  1883,  upon  the  faith  of 
advice  given  by  the  appellee,  its  attorney,  who  certified  to  its  officers, 

^  A  portion  of  the  opinion  is  omitted. 

^"A  physician  and  surgeon,  by  taking  charge  of  a  case,  impliedly  represents 
that  he  possesses,  and  the  law  places  upon  him  the  duty  of  possessing,  that 
reasonable  degree  of  learning  and  skill  that  is  ordinarily  possessed  by  physi- 
cians and  surgeons  in  the  locality  where  he  practises  and  which  is  ordinarily 
regarded  by  those  conversant  with  the  employment  as  necessary  to  qualify  him 
to  engage  in  the  business  of  practising  medicine  and  surgery.  *  *  *  He  is 
under  the  further  obligation  to  use  his  best  judgment  in  exercising  his  skill 
and  applying  his  knowledge."  Vann,  J.,  in  Pike  v.  Housinger,  155  N.  Y. 
201,  2og. 

See  Lanphier  v.  Phipos,  8  C.  &  P.  475. 

Regarding  the  duty  of  an  architect  see  Chapel  v.  Clark,  117  Mich.  638. 
46 — Reinhard  Cases. 


722  DUTIES    OF   AGENT   TO   PRINCIPAL. 

in  writing-,  that  the  title  to  certain  real  estate  upon  which  the  appli- 
cant for  the  loan  proposed  to  execute  a  mortgage  as  security  therefor 
was  perfect,  and  available  to  secure  the  loan  applied  for. 

It  appears  that  the  real  estate  was  owned  by  the  applicant  and  his 
wife  as  tenants  by  the  entireties ;  that  the  loan  was  made  in  reliance 
upon  the  advice  of  the  attorney  ;  that  the  borrower  subsequently  died, 
his  estate  being  insolvent ;  and  that  his  widow  successfully  resisted 
a  suit  for  the  foreclosure  of  the  mortgage,  subsequently  brought  by 
the  association,  her  defense  having  been  predicated  upon  the  ground 
that  she  signed  the  note  and  mortgage  merely  as  the  surety  for  her 
husband. 

It  is  insisted  that  the  complaint  shows  that  the  association  sustained 
loss  in  consequence  of  the  ignorance,  carelessness,  or  unskilfulness 
of  its  attorney,  and  that  the  latter,  with  his  sureties,  must  therefore 
respond  to  it  in  damages  for  the  amount  lost.  No  neglect  or  want 
of  skill  appears,  except  that  the  attorney  was  mistaken  as  to  the  law 
applicable  to  the  state  of  the  title  of  the  borrower,  and  its  avail- 
aljility  as  a  security  for  the  loan. 

Attorneys  are  very  properly  held  to  the  same  rule  of  liability  for 
want  of  professional  skill  and  diligence  in  practice,  and  for  errone- 
ous or  negligent  advice  to  those  who  employ  them,  as  are  physicians, 
surgeons,  and  other  persons  who  hold  themselves  out  to  the  world  as 
possessing  skill  and  qualification  in  their  respective  trades  or  pro- 
fessions:  Waugh  V.  Shunk,  20  Pa.  St.  130. 

The  practice  of  law  is  not  merely  an  art ;  it  is  a  science  which 
demands  from  all  who  engage  in  it,  without  detriment  to  the  public, 
special  qualifications,  which  can  only  be  attained  by  careful  prelim- 
inary study  and  training-,  and  by  constant  and  unremitting  investiga- 
tion and  research.  But  as  the  law  is  not  an  exact  science ;  there  is 
no  attainable  deg-ree  of  skill  or  excellence  at  which  all  differences 
of  opinion  or  doubts  in  respect  to  questions  of  law  are  removed  from 
the  minds  of  lawyers  and  judges.  Absolute  certainty  is  not  always 
possible.  "That  part  of  the  profession,"  said  Lord  Mansfield  in 
Pitt  V.  Yalden,  4  Burr.  2060,  "which  is  carried  on  by  attorneys,  is 
liberal  and  reputable,  as  well  as  useful  to  the  public,  when  they  con- 
duct themselves  with  honor  and  integrity  ;  and  they  ought  to  be 
protected  where  they  act  to  the  best  of  iheir  knowledge  and  skill. 
But  every  man  is  liable  to  error ;  and  I  should  be  very  sorry  that  it 
should  be  taken  for  granted  that  an  attorney  is  answerable  for  every 
error  or  mistake,  and  to  be  punished  for  it  by  being  charged  with  the 
debt  which  he  was  employed  to  recover  for  his  client"  :  Watson  v. 
Muirhead,  57  Pa.  St.  161,  98  Am.  Dec.  213;  United  States  Mort- 
gage Co.  V.  Henderson,  1 1 1  Ind.  24,  34. 

An  attorney  who  undertakes  the  management  of  business  com- 
mitted to  his  charge  thereby  impliedly  represents  that  he  possesses 
the  skill  and  that  he  will  exhibit  the  diligence  ordinarily  possessed 
and  employed  by  well-informed  members  of  his  profession  in  the 


and  appij  those  rules 
and  clearly  defi'T^'  •'■ 
dared  in  adjud 
a  sufficient  len 
cise  reasonable 
■  ssion:   h 
,;.::.,  cin  V.  Yel' 
30  Ala.   482. 
Fenaille  v.  C, 

Thus  it 
norance  or 
the  want 
on  the 
points 
G 
b. 


decisi' 
gence 
of  the 

a  mistake  in  rt 
sion  possesseo 
the  law  until  i; 
in  a  po'"'     ' 
weli-ii. 
Burt,  4  i.- 
The  iud;. 


-id 
>iished 

"'"!  de- 
.ed 


■ .  y  Oil  G 
iis  own  1" 
£  needs  only  to  use  < 
asion  requires, 
ignorant  of  the  ordinary 
of  the  statutes  and  pui 
not  to  be  charged  with 
'iition  iv' 
ior  can  ' 
^  which 


Section  4. — Agent's  ^^^  * 


1874. 


General  assum, 
nirt,  September  It 

'  A  portio"   '  I'  <li-> 
(woman  to  C' 

•  For  full  . 
'  \'ard,  IOC)  U.  h    193. 


al   bv   the 


ill  •.vntmg-.  that  the  title  to  ccrtaUi  i^ 
c^uit  for  the  loan  proposed  to  execute 
\\  a^  perfect,  and  available  to  secure  the  1< 
It  ajjpcars  that  the  real  estate  was  owi 
wife  as  tenants  by  the  entireties;  that  tht 


upon  the  advice  of  t'^     ■• 

his  estate  beine  in-- 

a  suit  for  V< 

the  associai 

that  she  sigiie<.i  u\<  lUAt 

husband. 

It  is  insisted  that  the  c 
loss  in  con-^'"'"'''  ■  '•  '■"' 
of  its  attor: 
respond  '  ■    - 
of  skill 
ajv    ■ 


ous  or 

StTr:^-"  ^ 


that  the 
iiat  his 


igagc  iiicreiy  a.- 


inar}'  - 

tion  aiu;  i. -r^v-.ii. 

no  attainable  d'. 

of  opinion  or  douiM 

the  minds  of  lawyer 

possible.     "That  part 

Pitt  v.-Yalden,  4  Burr     . 

liberal  and  reputable,  af 

duct  themselves  wi^l    ! 

protected  where  th 

But  every  man' is  li;fi n    u 

should  be  taken  for  granted 

r  mistake,  and  to  be  puii:>..iCd  for  ' 
liich  he  was  emj^b'^ve'l  to  recover 

iMuirhead,  57  Pa.  St.   (  '  m.  Dec 

gage  Co.  V.  Henderson,  .  24,  34. 

An  attorney  who  undertakes  the  ma 

mitted  to  his  charge  thereby  implie<1'^ 

the  skill  and  that  he  will  exhibit  t1 
'  '        '  hy  well-informed 


shows  that  the  assoo. 

nice,  carelessness,  or 

r,  with  his  sureties,  i  e 

'  amoiuit  lost.  No  negicc:  ur  want 
.attorney  was  mistaken  as  to  the  law- 
tie  of  the  borrower,  and  its  avail- 

o  the  same  rule  of  liability  for 

ce  in  practice,  and  for  errone- 

employ  them,  as  are  physicians, 

.,«'f.i  themselves  out  to  the  world  as 

in  their  respective  trades  or  pro- 

a.  St.  130. 

.rely  an  art;  it  is  a  science  which 
.\  ithoiit  detriment  to  the  public, 
be  attained  by  careful  firf  I'n.- 
constant  and  unremitting  inv 
iw  is  not  an  exact  science;  th^i^.  k-> 
excellence  at  which  all  differences 


questions  of  law  are  rem 
Absolute  certainty  i*; 

.^ion,"   said   Loro 

!i  is  carried  on  1 
iseful  to  the  public,  ■ 
■  integrity ;  ;'i"-'  *'"- 

'  of  the:. 

II  shon 

ittornev 


in 

i~ 


.;  \atli  ■.'.■ 
\Vatson  ^ 
les  Mori 


TO    ACCOUNT.  723 

conduct  of  business  such  as  he  has  undertaken.  He  will  be  liable  if 
his  client's  interests  suffer  on  account  of  his  failure  to  understand 
and  apply  those  rules  and  principles  of  law  that  are  well  established 
and  clearly  defined  in  the  elementary  books,  or  which  have  been  de- 
clared in  adjudged  cases  that  have  been  duly  reported  and  published 
a  sufficient  length  of  time  to  have  become  known  to  those  who  exer- 
cise reasonable  diligence  in  keeping  pace  with  the  literature  of  the 
profession:  Hillegass  v.  Bender,  78  Ind.  225,  and  cases  cited;  Pen- 
nington V.  Yell,  II  Ark.  212,  52  Am.  Dec.  262 ;  Goodman  v.  Walker, 
30  Ala.  482,  68  Am.  Dec.  134;  Weeks  Attorneys,  §§  284-289; 
Fenaille  v.  Coudert,  44  N.  J.  L.  286 ;  Gambert  v.  Hart,  44  Gal.  542. 

Thus  it  has  been  said :  "He  is  liable  for  the  consequences  of  ig- 
norance or  non-observance  of  the  rules  of  practice  of  his  court,  for 
the  want  of  care  in  the  preparation  of  the  cause  for  trial ;  whilst 
on  the  other  hand,  he  is  not  answerable  for  error  in  judgment  upon 
points  of  new  occurrence,  or  of  nice  or  doubtful  construction :" 
Godefroy  v.  Dalton,  6  Bing.  460;  Chitty  on  Contracts  817;  Dear- 
born V.  Dearborn,  15  Mass.  316.  It  is  his  own  fault,  however,  if  he 
undertakes  without  knowing  what  he  needs  only  to  use  diligence  to 
find  out,  or  applies  less  than  the  occasion  requires. 

A  lawyer  is  without  excuse  who  is  ignorant  of  the  ordinary  settled 
rules  of  pleading  and  practise,  and  of  the  statutes  and  published 
decisions  in  his  own  state ;  but  he  is  not  to  be  charged  with  negli- 
gence where  he  accepts  as  a  correct  exposition  of  the  law  a  decision 
of  the  supreme  court  of  his  own  state ;  nor  can  he  be  held  liable  for 
a  mistake  in  reference  to  a  matter  in  which  members  of  the  profes- 
sion possessed  of  reasonable  skill  and  knowledge  may  differ  as  to 
the  law  until  it  has  been  settled  in  the  courts ;  nor  if  he  is  mistaken 
in  a  point  of  law  on  which  reasonable  doubt  may  be  entertained  by 
well-informed  lawyers:  Marsh  v.  Whitmore,  21  Wall.  178;  Kemp  v. 
Burt,  4  Barn.  &  Adol.  424. ^     *     *     * 

The  judgment  is  affirmed,  with  costs.^ 


Section  4. — Agent's  Duty  to  Account. 

BALDWIN  BROTHERS  v.  POTTER. 

1874.     Supreme  Court  of  Vermont.     46  Vt.  402. 

General  assumpsit.  Plea,  the  general  issue,  and  trial  bv  the 
court,  September  term,  1873,  Royce,  J.,  presiding. 

^A  portion  of  the  opinion  dealing  with  the  statutory  right  of  a  married 
(woman  to  contract  is  omitted. 

'  For  full  discussion  of  the  duties  of  an  attorney  at  law  see  Savings  Bank  v. 
Ward,  100  U.  S.  195. 


724  DUTIES   OF   AGENT   TO   PRINCIPAL. 

The  case  was  tried  upon  the  following  agreed  statement  of  facts : 

"The  plaintiffs  were  merchants  and  partners,  residing  and  doing 
business  at  St.  Albans,  Vt.  They  employed  the  defendant  to  solicit 
orders  for  and  sell  an  article  known  and  called  'prize  candy'  on  com- 
mission. It  was  the  practice  of  the  parties,  under  said  employment, 
for  the  defendant  to  solicit  and  take  orders  for  said  goods,  and  send 
such  orders  to  the  plaintiffs,  who  would  thereupon  send  the  candy 
to  the  parties  ordering  it,  and  charge  it  directly  to  the  purchaser,  on 
the  plaintiff's  books,  and  for  the  defendant,  when  convenient,  to 
make  collections  in  respect  thereof  for  the  plaintiffs,  receipt  therefor, 
notify  the  plaintiffs  thereof,  and  pay  the  amounts  collected  over  to 
the  plaintiffs  on  demand. 

"The  defendant  entered  upon  said  business ;  and  in  November, 
1870,  and  January,  1871,  he  sent  orders  for  said  candy  for  various 
parties  in  the  state  of  New  York  to  the  amount  of  $103,  and  after- 
ward, in  August  and  September,  1871,  collected  the  pay  for  the 
same  as  the  plaintiffs'  agent.  In  November  and  December,  1870, 
and  February  and  March,  1871,  the  defendant  sold  and  sent  orders 
to  the  plaintiffs  from  various  parties  in  the  state  of  Massachusetts 
for  said  candy  to  the  amount  of  $210.52,  and  afterward,  in  August 
and  October,  1871,  collected  pay  for  the  same  as  the  plaintiffs'  ageni. 
During  the  years  1870  and  187 1  the  defendant  sold  and  sent  orders 
for  said  candy  from  various  parties  in  Vermont  to  the  amount  of 
$215.57,  and  afterward,  in  August,  September,  and  October,  1871, 
collected  the  pay  for  the  same  as  the  plaintiff's  agent. 

"On  the  delivery  of  said  goods  by  the  plaintiffs  they  charged  the 
same  to  the  purchasers  on  their  books ;  and  on  receiving  notice  from 
the  defendant  of  said  collections  they  credited  to  such  purchasers 
the  amounts  thereof.  The  plaintiffs  delivered  to  the  defendant  four 
silver  dollars  and  four  silver  half-dollars  as  samples  of  the  prizes 
contained  in  certain  of  said  prize  candy  packages,  which,  with  the 
premium  thereon,  were  of  the  value  of  $6.72,  and  which  the  defend- 
ant has  never  returned  nor  accounted  for  to  the  plaintiffs.  It  is 
agreed  that  the  commission  to  which  the  defendant  is  entitled  is 
equal  to  and  shall  be  set  off  against  items  in  the  plaintiff's  favor; 
specification  not  included  in  the  amounts  aforesaid. 

"Said  prize  candies  were  of  three  kinds,  and  were  known  and 
called  the  'Challenge,'  'Gem,'  and  'United  States  Silver  Coin,'  and 
were  put  up  in  packages  designed  to  be  sold  at  retail  for  a  certain 
price  per  package.  Each  package,  in  addition  to  a  quantity  of  candy, 
contained  a  prize  of  some  value  ;  and  the  inducement  to  purchase  one 
or  more  of  the  packages  at  retail  was  the  chance  of  receiving  with  the 
candy  a  prize,  some  of  which  were  of  greater  value,  and  some  of  less 
value,  than  the  price  paid.  The  plaintiffs,  at  St.  Albans,  put  up  said 
candy  in  packages,  with  a  prize  in  each  package,  and  put  up  the 
packages  in  boxes  containing  a  certain  number  thereof.  The  plain- 
tiffs sold  said  candy  by  the  box  only,  and  each  box  of  the  several 


contain  t 
I  Circulars ; 
ut  as  their  v 
particularly  the    ' 
ix)x  as  a  prize    - 
-  iforme'd  anc 
alue,  and  ki 
ought ;  and  t 
>e  same  i. 
;.e  prizes 
'lasers  ti.' 
"In  res; 
the  dfcfen' 
of  OctofK 
to  them 


es,  ana 

and  on 

de- 

n^ 


ermont, 
ihall  be  ren  . 
the  date  of  c., 
the  coin.     If  r 
any  of  sai'l  it 

Tt  to  rec 
An  agi 

atutes  < 
i^ablic  pr- 
judgmeni 


'  is  of  opinion  th, 

:i3  as  Stated, 

-.w  York,  Ma> 

for  said  silver  . 

'  -uch  sum"   - 

the  da. 


me  of 


of 


die  same  ; 
action  ari 
defendant,  an' 
^he  defendant 

PlERPONT,  • 

der  the  que- 
roperty  refer! 
■ased  it,  wen. 
•   not.     Thib 
uither  is  it  fomi 
.-ntracts  were  ilk ; 
"icm ;  it  will  not 
1  the  property  soiu 


724 


DUTIES   OF   AGENT  TO   F 


l"he  case  was  tried  upon  the  following  agree-. I 
"The  plaintiffs  were  merchants  and  partners, 
business  at  St.  Albans,  Vt.    They  emploved  the 
<jrders  for  and  sell  an  article  known  and 
mrssion.    It  was  the  '^rrirtice  of  the  part 
for  the  defendant  v:  •  take  orders 

such  orders  to  the  iio  would  tht 

to  the  parties  ordering,-  it,  and  charge  it  directly  ' 


the  plaintiff's  book?,  and 
make  collections  in  respect 
notify  the  plair'"'"    "      - 
the  plaintiff's  o; 
'The  d'^ 


lr>r  the  defendant,  v 
vl.creof  for  the  plaintii 
i  pay  the  amounts 


of  facts : 
nd  doing 
to  solicit 

It, 
nd 

iy 

ni 

•o 

I.    o 

vcr  to 

nintiffs" 
nd  Mar 
from  \ 


1  said  business ;  and  in   '  rr^ 

1"  orders  for  said  candy  ■  is 

;-  to  the  amount  of  $103,  and  after- 

r,   T871,  collected  the  pay  for  the 

'XI  November  and  December,  1870, 

the  defendant  sold  and  sent  orders 

.  rties  in  the  state  of  Massachusetts 

!l  ut  $210.52,  and  afterward,  in  August 

r>qy  for  the  same  as  the  plaintiffs'  agem. 

^  the  defendant  sold  and  sent  orders 

^  .rties  in  Vermont  to  the  amount  of 

ard,  in  August,  September,  and  October,  187 1, 

• '"'  --^rne  as  the  plaintiff's  agent, 

g^oods  by  the  plaintiffs  they  charged  the 

Teir  books;  and  on  receiving  notice  from 

'  lions  they  credited  to  such  purchasers 

delivered  to  the  defendant  four 

oUars  as  samples  of  the  prizes 

e  candy  packages,  which,  with  the 

lue  of  $6.72,  and  which  the  defend- 

ounted  for  to  the  plaintiffs.    It  is 

which  the  defendant  is  entitled  i- 

iinst  items  in  the  plaintiff's  favo; 

vjnts  aforesaid. 

e  kinds,  and  were  known  and 
id  United  Stales  Silver  Coin,'  and 
cd  to  be  sold  at  retail  for  a  certain 
:-,  in  addition  to  a  quantity  of  candy, 
,  and  the  inducement  to  purchase  one 
or  more  of  the  packages  at  retail  was  the  chance  of  receiving  with  th.. 
candy  a  prize,  some  of  which  were  of  gre  nf  less 

value,  than  the  price  paid.    The  plaintiff'  ;^  said 

candy  in  packages,  with  a  prize  in  ea«  1,  and 

packages  in  boxes  containing  a  certain  r  iicreof.  ^      '" 

'■^'s  sold  said  candy  by  the  box  id  each  box  of  the  severa: 


1870,  and 

parties  in 

ward,   in 

same 

and  F' 

to  tht 

k. 

ay 

D 

f.M 


satne  to  ti:e  pu: 
the  defendant  . 
the  amounts  theieoi. 
silver  dollars  and  fouj 
contained  in  certain  of 
premium  thereon,  v"^'  - 
ant  has  never  reti ; 
agreed  that  the  con;': 
equal  to  and  shall  be  - 
specification  not  iv.:' 
'"Said  prize  canu 
called  the  'Challenge,' 
were  put  up  in  packagi 
price  per  package.    Eai; 
contained  a  prize  of  soiut^ 


TO    ACCOUNT.  725 

kinds  contained  the  same  amount  of  candy  and  the  same  prizes,  and 
the  prizes  contained  in  each  box  were  printed  on  the  outside  and  on 
printed  circulars ;  and  cards  were  used  by  the  plaintiffs,  and  the  de- 
fendant as  their  agent,  in  connection  with  the  sale  thereof,  stating 
particularly  the  kind  and  value  of  each  article  contained  in  the 
box  as  a  prize ;  and  each  purchaser  thereof  from  the  plaintiffs  was 
informed  and  knew  the  amount  of  candy  and  the  exact  number, 
value,  and  kind  of  articles  as  prizes  contained  in  each  box  that  he 
bought ;  and  the  plaintiffs  knew  that  such  purchasers  intended  to  sell 
the  same  at  retail,  in  the  vicinity  of  the  place  of  purchase,  and  that 
the  prizes  would  be  drawn  as  hereinbefore  stated  by  the  retail  pur- 
chasers thereof. 

"In  respect  to  said  business,  and  in  the  collection  of  said  money, 
the  defendant  acted  solely  as  the  agent  of  the  plaintiffs.  On  the  i8th 
of  October,  1871,  the  plaintiffs  demanded  of  the  defendant  to  account 
to  them  for  the  money  collected  by  him  as  aforesaid,  and  said  silver 
coins,  and  to  pay  over  the  amount  thereof  to  them,  but  the  defendant 
absolutely  refused,  and  ever  since  hath  refused  so  to  do,  and  has 
never  paid  the  same  nor  any  part  thereof. 

"If  upon  the  foregoing  facts  the  court  is  of  opinion  that  the  plain- 
tiffs are  entitled  to  recover  for  the  sums  as  stated,  which  were  col- 
lected upon  sales  in  the  states  of  New  York,  Massachusetts,  and 
Vermont,  or  either  of  said  states,  or  for  said  silver  coins,  judgment 
shall  be  rendered  for  the  plaintiff's  for  such  sums,  and  interest  from 
the  date  of  collection  of  the  money  and  the  date  of  the  delivery  of 
the  coin.  If  the  plaintiffs  are  not  entitled  to  recover  in  respect  of 
any  of  said  items,  then  judgment  shall  be  rendered  for  the  defend- 
ant to  recover  his  costs." 

An  agreement  was  also  made  as  to  some  of  the  provisions  of  the 
statutes  of  New  York  and  Massachusetts  relating  to  offenses  against 
public  policy  in  force  at  the  time  of  said  sales.  The  court  rendered 
judgment  for  the  plaintiff,  pro  forma,  to  recover  the  full  amount 
claimed,  w'ith  interest  thereon  as  stipulated,  and  found  that  the  de- 
fendant received  said  money  in  a  fiduciary  capacity  and  converted 
the  same  to  his  own  use,  and  adjudged,  pro  forma,  that  the  cause  of 
action  arose  from  the  willful  and  malicious  act  and  neglect  of  the 
defendant,  and  that  he  ought  to  be  confined  m  close  jail ;  to  all  which 
the  defendant  excepted. 

PiERPONT^  Ch.  J. — We  do  not  find  it  necessary  in  this  case  to  con- 
sider the  question  as  to  whether  the  contract  for  the  sale  of  the 
property  referred  to,  by  the  plaintiffs,  to  the  several  persons  who  pur- 
chased it,  were  contracts  made  in  violation  of  law,  and  therefore  void 
or  not.  This  action  is  not  between  the  parties  to  those  contracts ; 
neither  is  it  founded  upon  or  brought  to  enforce  them.  If  those 
contracts  were  illegal  the  law  will  not  aid  either  party  in  respect  to 
them  ;  it  will  not  allow  the  seller  to  sue  for  and  recover  the  price 
of  the  property  sold  if  it  has  not  been  paid ;  if  it  has  been  paid,  the 


726  DUTIES   OF   AGENT   TO   PRINCIPAL. 

purchaser  cannot  sue  for  and  recover  it  back.  The  facts  in  this  case 
show  that  the  purchasers  paid  the  money  to  the  plaintiffs,  not  to  the 
plaintiffs  personally,  but  to  the  defendant  as  the  agent  of  the  plain- 
tiffs authorized  to  receive  it.  When  the  money  was  so  paid  it  became 
the  plaintiff's  money,  and  when  it  was  received  by  the  defendant 
as  such  agent  the  law,  in  consideration  thereof,  implies  a  promise  on 
the  part  of  the  defendant  to  pay  it  over  to  his  principals,  the  plain- 
tiffs ;  it  is  this  obligation  that  the  present  action  is  brought  to  enforce  ; 
no  illegality  attaches  to  this  contract.  But  the  defendant  insists  that, 
inasmuch  as  the  plaintiff  could  not  have  enforced  the  contracts  of 
sale,  as  between  himself  and  the  purchaser,  therefore,  as  the  pur- 
chaser has  performed  the  contracts  by  paying  the  money  to  the 
plaintiffs  through  me,  as  their  agent,  I  can  now  set  up  the  illegality 
of  the  contract  of  sale  to  defeat  an  action  brought  to  enforce  a  con- 
tract on  my  part  to  pay  the  money  that  I  as  agent  receive,  over  to 
my  principal.  In  other  words,  because  my  principal  did  not  receive 
the  money  on  a  legal  contract,  I  am  at  liberty  to  steal  the  money, 
appropriate  it  to  my  own  use,  and  set  my  principal  at  defiance.  We 
think  the  law  is  well  settled  otherwise,  and  the  fact  that  the  defendant 
acted  as  the  agent  of  the  plaintiff  in  obtaining  orders  for  the  goods 
does  not  vary  the  case :  Tenant  v.  Elliot,  i  B.  &  P.  2 ;  Armstrong  v. 
Toller,  II  Wheat.  257 ;  Evans  v.  City  of  Trenton,  4  Zab.  (N.  J.)  764. 

We  think  the  certificate  granted  by  the  county  court  was  properly 
granted.  It  has  been  urged  in  behalf  of  the  defendant  that  the  zeal 
with  which  he  has  defended  this  case  shows  that  he  intended  no 
wrong;  but  we  think  the  man  who  receives  money  in  a  fiduciary 
capacity,  and  refuses  to  pay  it  over,  does  not  improve  his  condition 
by  the  tenacity  with  which  he  holds  on  to  it. 

Judgment  of  the  county  court  affirmed.^ 


HAAS  V.  DAMON. 

1859.     Supreme  Court  of  Iowa.     9  Iowa  589. 

Stockton,  J. — The  plaintiff  claims  of  defendant  five  hundred 
dollars  for  the  price  and  value  of  three  certificates  of  stock,  or  shares 

^  Regarding  the  duty  of  the  agent  to  keep  book  accounts  see  Chicago  Title 
and  Trust  Co.  v.  Ward,  113  111.  App.  327. 

An  agent  is  liable  to  account  only  to  his  principal.  Attorney-General  v. 
Chesterfield,  18  Beav.  596. 

"In  mercantile  agencies,  and  perhaps  others,  where  the  nature  of  the  busi- 
ness requires  the  agent  to  keep  various  accounts  of  purchases  and  sales,  or  of 
receipts  and  expenditures,  with  his  principal,  he  may  be  called  upon  by  his 
principal,  in  chancery,  for  an  account.  But  the  present  is  a  dififerent  case. 
The  alleged  agency  was  for  a  single  transaction,  in  which  no  such  accounts 
as  we  have  mentioned  could  arise;  and  the  remedy  for  a  breach  is  exclusively 
at  law."     Blackford,  J.,  in  Coquilard  v.  Suydam,  8  Blackf.  (Ind.)  24,  30. 


in  tlie  town  oi  Uiiicini.ati 
to  defendant  to  sell  and  <-'. 
upon  the  agreement  of  dei 
advantage,  and  account  t. 
fjlaintilT  avers  that  defen  ' 
cates.  and  refuses  to  accou- 
though  requested  so  to  do 

The  defendruit  ■,\ns'\ . 
averring  that  ;ii  'lie  ; 
lirected  him 
ame;  and  ti 
•ne  gold  ^•  aid),  two 
vhich  he     ■-  •..-.luir-^l- 
efused  h 
till  is  r. 
lis  ]>avii' 


.all, 

ible 

.\nd 

rtifi- 


!aintiff  gave  in  evidence 

Received  of  A.  Haas,  thret 
Iowa,  t' '  sell  for  him  on  c 


laintiflf  for  l: 
certificates,  or 
brought. 
We  tl,: 
^iven,  ii! 

1 uty  of  the  > 

hares  for  the  ,  ,. 

o  exchange  \.ht:v^  io; 

^.ad  shown  tlv 

•rty,  instead 

iefendant,  thai  ; 

•  ringing  suit.     S' 

;8o. 
It  was  the  dut\   . 

!ue  season,  and  in  i' 
':ase  of  neglect,  or 

without  any  dein 

Forry  v.  Bryant 


any  tender  : 
...I.  court  in^it 
ring  receipt ; 

:.  Bluffs,  T\ 
Cincinnal.!.   ' 

-old  the  shares  a  feu 
er,  for  haltVsharf   i 
"  of  shares  in  El' 
---n  of  def. '•:-': 
!  to  def' 
■  been  showi 


'ore, 
■  op- 
u  bv 
fore 
>  iwa 


:i.    iJ 


:>-j- 


726 


'l!i..S    or    AGKNT    TO    I".- 


purchaser  cannot  sue  for  and  recover  it  b  ■ 
show  that  the  purchasers  paid  the  money 
plaintiffs  personally,  but  tQ  the  defendan' 
tiffs  authorized  to  receive  it.  When  the  ni 
the  plaintiff's  money, 'and  when  it  was  ^ 
as  such  agent  the  law,  in  consideration  thero  • 
the  part  of  the  defondar'l  ^/^  nay  it  over  to  hi 


this  case 
lot  to  the 
liC  plain 
'i  hecanif 
lefenda? 


tiffs  ;  it  is  this  of 
no  illegality  atta; 
inasmuch  as  the  pi 
sale,  as  between  hii...,.: 
chaser  has  performed  t 
plaintiffs  through  me,  a- 
of  the  contract  of  sale  f 
tract  oif 
my  prii' 
the  mo 
appropr 
think  tb ' 


resentactlOI- 
.ict.     But  the 
■ot  have  enforce  ; 
purchaser,  there.   ;- 
acts  by  paying  the 
ent,  I  can  now^  set  ui 
,n  action  brought  to  -: 
■:.y  that  I  as  agent  receive,  (,/vt;i  : 
.cause  my  principal  did  not  receive 
;  t.  I  am  at  liberty  to  steal  the  mone^ 
.  and  set  my  principal  at  defiance.     W  < 
herwise,  and  the  fact  that  the  defendan  ^ 
'  '"""^  '  ntiff  in  obtaining  orders  for  the  good' 

mt  V.  Elliot,  I  B.  &  P.  2 ;  Armstrong  v, 
•  V.  City  of  Trenton,  4  Zab,  (N.  J.)  764 
inted  by  the  county  court  was  properl; 
giMiitcd.    1  ;n  behalf  of  the  defendant  that  the  zeal 

with  which  \  this  case  shows  that  he  intended  no 

wrong ;  but  we  thuik  tht:  man  who  receives  money  in  a  fiduciary 
capacity,  and  refuse^  to  pay  it  over,  does  not  imt^'->vp  h^.  .-.mWt-r;-. 
by  the  tenacity  with  which  Ive  holds  on  to  it. 
Judgment  of  the  count-  ^  affirmed.^ 


AS  V.DAMON. 


1859.     Sui'Kx„«to  Court  of  Iowa.    9  Iowa  58*) 

Stockton,  J. — The  piaintiff  claims  of  defendant  five  hundred 
dollars  for  the  price  and  vai:ie  of  three  certificates  of  stock,  or  shares 

^Regarding  the  duty  of  the  agent  to  keep  book  accounts  see  Qiica^o  Tit! - 
and  Trust  Co.  v.  Ward,  113  11:    App.  327. 

An  agent  is  liable  to  accounr  only  to  his  prinripal     Attorney-General  v. 
Chesterfield,  l8  Beav.  596. 

"In  mercantile  agencies,  and  perhaps  others,  whe  ire  of  the  busi 

ness  requires  the  agent  to  keep  various  accounts  of  .1.1.. 

receipts  and  expenditures,  with  his  principal,  he  n 
principal,   in  chancery,  for  an  account.    B"'    'I-'' 
i'he  allegcj  aftency  was  for  a  single  tran- 
^     ,.  .     rave  mentioned  could  arise;  and  t'v 

Blackford,  J.,  in  Coquilard  '-lkI)  24,  3' 


TO   ACCOUNT.  727 

in  the  town  of  Cincinnati,  Harrison  county,  Iowa,  delivered  by  him 
to  defendant  to  sell  and  dispose  of  for  the  best  interest  of  plaintiff, 
upon  the  agreement  of  defendant  to  sell  the  same  to  the  best  possible 
advantage,  and  account  to  plaintiff  for  the  proceeds  thereof.  And 
plaintiff  avers  that  defendant  refuses  to  deliver  to  him  said  certifi- 
cates, and  refuses  to  account  for  the  proceeds  of  the  sale  of  the  same 
though  requested  so  to  do. 

The  defendant  answers  denying  the  allegations  of  the  petition,  and 
averring  that  at  the  time  of  receiving  said  certificates,  the  plaintiff 
directed  him  to  exchange  them  for  anything  he  could  get  for  the 
same ;  and  that  under  such  instruction  he  did  exchange  them  for 
one  gold  w^atch,  two  silver  watches  and  twenty  dollars  in  money, 
which  he  immediately  thereafter  offered  to  deliver  to  plaintiff,  who 
refused  to  receive  the  same ;  that  defendant  has  been  at  all  times  and 
still  is  ready  and  willing  to  deliver  up  said  property  to  plaintiff,  on 
his  paying  defendant  a  reasonable  compensation  for  his  trouble  and 
services.  The  plaintiff'  replied  to  the  answer  denying  that  he  author- 
ized defendant  to  exchange  said  certificates  as  alleged  by  defendant, 
and  denying  that  defendant  had  made  any  tender  to  plaintiff  as  al- 
leged. On  the  trial,  which  was  by  the  court  instead  of  a  jury,  the 
plaintiff  gave  in  evidence  the  following  receipt : 

"Council  Bluffs,  March  4,  1857. 
Received  of  A.  Haas,  three  shares  in  Cincinnati,  Harrison  county, 
Iowa,  to  sell  for  him  on  commission.  J.  W.  Damon." 

And  proved  that  defendant  had  sold  the  shares  a  few  weeks  after 
receiving  the  same,  to  one  Gardner,  for  half -share  in  Elk  Horn, 
Nebraska.  After  proving  the  value  of  shares  in  Elk  Horn,  plaintiff 
rested  his  cause.  The  court  on  motion  of  defendant  nonsuited  the 
plaintiff  for  the  reason  that  no  demand  to  defendant  to  return  the 
certificates,  or  account  for  the  same  had  been  shown,  before  suit  was 
brought. 

We  think  the  district  court  was  not  justified  under  the  evidence 
given,  in  rendering  judgment  of  nonsuit  gainst  the  plaintiff.  The 
duty  of  the  defendant,  by  his  written  undertaking,  was  to  sell  the 
shares  for  the  plaintiff.  The  authority  to  sell,  did  not  authorize  him 
to  exchange  them  for  other  property.  When  the  plaintiff,  therefore, 
had  shown  that  defendant  had  exchanged  the  shares  for  other  prop- 
erty, instead  of  selling  them,  he  so  far  established  a  conversion  by 
defendant,  that  he  was  excused  from  any  proof  of  demand  before 
bringing  suit.  Storv  on  Agencv,  §  78.  Cutter  v.  Fanning,  2  Iowa 
580. 

It  was  the  duty  of  defendant  to  render  an  account  to  plaintiff'  in 
due  season,  and  in  reasonable  time  after  selling  the  shares,  and  in 
case  of  neglect,  or  refusal  so  to  do,  he  is  probably  liable  to  an  action 
without  any  demand,  as  soon  as  he  is  in  default,  for  not  accounting. 
Torry  v.   Bryant,    16  Pick.   528;   Schee  v.   Hassinger,  2   Bin.   325. 


728  DUTIES    OF   AGENT    TO    PRINCIPAL. 

When,  however,  he  has  rendered  his  account  duly,  and  is  in  no  de- 
fault of  any  kind,  he  is  not  liable  to  an  action  for  money  received 
by  him,  until  a  demand  has  been  made  upon  him,  or  until  he  is 
directed  to  make  remittance.  Ferris  v.  Parris,  10  John.  285 ;  Cooley 
V.  Betts,  24  Wend.  203. 

One  of  the  issues  made  by  defendant  was,  that  at  the  time  of  re- 
ceiving the  shares,  plaintiff  directed  him  to  exchange  them  for  any- 
thing he  could  get  for  them.  As  the  undertaking  of  defendant 
was  in  writing,  and  was  to  sell  on  commission,  it  might  be  doubtful 
how  far  he  could  be  allowed  to  enlarge  his  authority  by  parol  evi- 
dence applicable  to  the  same  subject-matter  at  the  same  point  of 
time,  and  which  might  in  effect  contradict,  vary  or  control  what  must 
be  understood  as  the  agreement  of  the  parties  as  derived  from  the 
writing.     Story  on  Agency,  §§  79,  80. 

As  the  question  does  not  arise,  we  indicate  no  opinion.  The  judg- 
ment will  be  reversed  for  the  error  of  the  district  court  in  directing 
the  nonsuit. 

Judgment  reversed. 


Section  5. — Duty  of  Gratuitous  Agent. 

HAMMOND  V.  HUSSEY. 

1871.     Supreme  Judicial  Court  of  New  Hampshire. 
51  N.  H.  40. 

Foster,  J. — The  substance  of  the  plaintiff's  declaration  is  that  the 
school  committee  employed  the  defendant  to  examine  candidates  for 
admission  to  the  high  school,  and  to  report  upon  their  qualification ; 
that  the  defendant  voluntarily  undertook  to  make  such  examination  ; 
that  he  examined  the  plaintiff,  and  found  him  to  possess  the  requisite 
qualifications  ;  but,  with  intent  wrongfully  to  exclude  the  plaintiff 
from  the  school  and  to  deprive  him  of  its  benefits,  maliciously  and 
falsely  reported  to  the  committee  that  he  was  not  qualified ;  and,  by 
reason  of  this  malicious  and  false  representation,  the  plaintiff  was 
excluded  from  the  school  and  lost  its  benefits. 

The  declaration,  therefore,  charges  upon  the  defendant  a  wilful 
and  positive  deceit  and  fraud ;  and  the  suit  is  placed  upon  the  general 
ground  that,  where  one  party  sustains  an  injury  by  the  malfeasance 
of  another,  the  sufferer  rnay  maintain  an  action  against  the  wrong- 
doer for  redress. 

The  defendant  contends  that  upon  this  declaration  no  suit  can  be 
maintained ;  because,  assuming  the  allegations  to  be  true,  there  is  no 
contract,  express  or  implied,  between  these  parties,  and  without 
privity  of  contract  there  can  be  no  liability. 


It  is  true  ; 
and  that  the  ■ 
nor  of  any  oh 
was  under  ti' 
amination. 

But  the  pU 
parties  were 

;  :nine  the  : 
L-.,;i  :iinati<'>T'. 
imp]; 
unde 
form  liis 


My 

■Iff 


fortii 
this  , 

ii  ail 

lK>n  >M    1 
existence 


.ration  in  si;. 


•  ich 

for 


mittee;  or,  v 

wrong  and  c: 

rule  apply,  i- 

wrong  of  SI 

wrong-doer  ? 

V.  Frecmai-i, 

V.  VandcTvet 

585 ;  Salem  BanK  v,  v 

But  without  pla -ii  ■ 
these  grounds,  v\ 
them  by  the  appi: 
Bernard,  2  Ld.  E 

As  all  lawyers  kix 


DTTTTES    ■, 

wcvfr,  1k'  ivd^  rt;u;.!.cr.:d  lii;-  ii<  eounr  ■,; 
any  kind,  he  is  not  liable  to  an  actioi; 
all,  until  a  demand  has  been  made  iipon  a 
ted  to  make  remittance..   Ferris  v.  Pnrri?.  lo 
iit'tts,  24  Wend.  203^ 


no  cie- 
eceived 
i!  he  is 
Coolev 


One  of  the  issues  m. 
ceiving  the  shades,  pi 
''-":t  he  could   get    1 
in  Writing,  and  v 
far  he  could  ' 
e  applicable 
time,  and  which  i' 
be  understood  a 
writing.     St- 
As  the  '■"" 
ment  wil' 
the  :ii 


defei-  .  . ._  .      ,  _  lat  at  th' 
ected  him  to  exchange  th, 
As  the  undertaking  oi  <. 

commission,  it  might  be 

;large  his  authority  1 
■lect-matter  at  the  ^;' 

:iradict,  vary  or  c 

-  the  parties  as  'i 

80. 

e  indicate  no  opinion.     ......  j..--, 

r  of  the  district  court  in  directing 


ny- 


l    OJt 

at  must 

oni  the 


Section  5 


Aj^ent. 


)Li 


N.  H. 


AM  PS  HI  RE. 


:  ..,v_.  ^..,.;t...!..  o  declaration  is  that  iht. 
defendant  to  examine  candidates  for 
to  report  upon  their  qualification ; 
rtnnk  to  make  such  examinatir,)) ; 


that  the  defendan 
that  he  examined 
qualirscations ;  bu, 
from  the  school  and 
falsely  reported  t^  t' 
rea.son  of  this  m;; 
excluded  from  the  sv.i 

The  declaration,  tl" 
and  positive  deceit  an^ 
ground  that,  where  Oi 

of  another,  the  suflferet  n;ay  maintain  an  action  ag 
doer  for  redress. 

The  defendant  contends  that  tipon  this  dcclarati' 
maintained ;  because,  assuming  the  allep"  •  '  '^' 
contract,  express  or  implied,  betweei 

■  ity  of  contract  there  can  be  no  " 


•  !ts  benerits,  m;,  uni 

,  .,  „..„.  ne  was  not  quali;....  .  ...a,  by 

false  representation,,  the  plaintiff  was 
»st  its  benefits. 

charges  upon  the  defendant  a  wilful 
md  the  suit  is  placed  upon  the  general 
.aistains  an  injury  by  the  maH*'^r\-:<ince 

can  be 
;e  is  no 
without 


GRATUITOUS   AGENT.  729 

It  is  true  that  there  was  no  express  contract  between  the  parties, 
and  that  the  defendant  acted  in  the  performance  of  no  pubHc  duty 
nor  of  any  obHgation  to  the  plaintiff.  It  is  also  true  that  the  plaintiff 
was  under  no  obligation  to  submit  himself  to  the  defendant  for  ex- 
amination. 

But  the  plaintiff  contends  that  notwithstanding  the  acts  of  both 
parties  were  voluntary,  still  the  undertaking  of  the  defendant  to 
examine  the  plaintiff,  and  the  plaintiff's  submission  of  himself  to  that 
examination,  created  and  established  between  them  a  contract,  by 
implication  of  law,  and  that,  such  being  the  case,  the  defendant  was 
under  obligation,  notwithstanding  his  work  was  gratuitous,  to  per- 
form his  undertaking  with  ordinary  care  and  diligence — to  make 
examination  of  the  plaintiff"  in  good  faith,  and  truthfully  to  report 
the  result  to  the  committee. 

It  may  be  doubted  whether  these  considerations  necessarily  enter 
into  the  present  inquiry.  The  case  does  not  rest  upon  a  charge  of 
negligence  nor  of  misfeasance  at  all,  nor  even  of  malfeasance  in 
the  performance  of  any  duty  imposed  by  law  or  required  by  the 
terms  of  a  contract ;  but  the  declaration  charges  a  positive  and  willful 
false  representation,  deceit  and  fraud,  whereby  the  plaintiff  received 
damage.  It  is  of  the  character  of  a  declaration  in  slander,  and  would 
seem  to  be  governed  by  the  principles  applicable  to  such  a  case. 

And  although  it  may  be  said  that  the  voluntary  relationship  which 
the  parties  assumed  placed  them  in  privity  of  contract,  so  that  for 
negligence  in  the  performance  of  the  defendant's  undertaking,  a 
fortiori,  for  fraud  concerning  it,  he  would  be  liable,  in  damages,  in 
this  action,  still,  it  may  be  seriously  questioned  whether  the  alleged 
fraud  and  deceit,  though  perhaps  connected  with  contract  by  implica- 
tion of  law,  is  necessarily  affected  by  or  at  all  dependent  upon  the 
existence  of  such  contract. 

What  difference  does  it  make  whether  the  defendant,  in  the  perpe- 
tration of  a  malicious  fraud  and  falsehood,  such  as  the  demurrer 
admits,  violated  an  express  or  an  implied  contract,  or  any  duty  re- 
sulting from  his  relation  either  to  the  plaintiff'  or  to  the  school  com- 
mittee ;  or,  whether  as  a  mere  stranger,  in  law,  he  achieved  the 
wrong  and  caused  the  damage  ?  Does  not  the  general  and  the  simple 
rule  apply,  that,  where  a  party  sustains  an  injury  by  the  willful 
wrong  of  another,  the  sufferer  may  have  his  action  against  the 
wrong-doer?  See  Mayor  of  Albany  v.  Cunliff,  2  N.  Y.  180;  Pasley 
v.  Freeman,  3  Term  51,  S.  C,  2  Smith's  Lead.  Cas.  137,  138 ;  Willink 
v.  Vanderveer,  i  Barb.  599 ;  Watson  v.  Poulson,  7  Eng.  L.  &  Eq. 
585 ;  Salem  Bank  v.  Gloucester  Bank,  17  Mass.  i. 

But  without  placing  the  decision  of  the  question  before  us  upon 
these  grounds,  we  have  no  difficulty  nor  hesitation  in  disposing  of 
them  by  the  application  of  the  principles  so  well  settled  in  Coggs  v. 
Bernard,  2  Ld.  Raym.  909,  i  Smith's  Lead.  Cas.  284. 

As  all  lawyers  know,  it  was  there  held  that  "if  a  man  undertakes 


730  DUTIES   OF   AGENT   TO   PRINCIPAL. 

to  carry  goods  safely  and  securely  he  is  responsible  for  any  damage 
they  may  sustain  in  the  carriage  through  his  neglect,  though  he  was 
not  a  common  carrier,  and  was  to  have  nothing  for  the  carriage. 

The  analogy  is  obvious,  and  the  principle  evolved,  and  by  the 
application  of  which  this  case  is  to  be  determined,  is  that  the  confi- 
dence induced  by  undertaking  any  service  for  another  is  a  sufficient 
legal  consideration  to  create  a  duty  in  the  performance  of  it.  Notes 
to  I  Smith's  Lead.  Cas.  254 ;  Wilkinson  v.  Coverdale,  i  Esp.  N.  P. 
Rep.  74 ;  Doorman  v.  Jenkins,  2  Ad.  &  E.  256 ;  i  Parsons  Contracts 
(5th  ed.)  447,  and  note  w. 

By  this  rule  a  gratuitous  and  voluntary  agent,  who  has  no  public 
or  official  duty  to  perform,  but  who,  nevertheless,  undertakes 
gratuitously  to  do  a  particular  service  requiring  the  trust  and  confi- 
dence of  another,  though  the  degree  of  his  responsibility  is  greatly 
inferior  to  that  of  a  hired  agent,  is  yet  bound  not  to  be  guilty  of 
gross  negligence. 

Prof.  Parsons  expresses  the  rule  in  more  broad  and  general  terms, 
thus :  "If  a  person  makes  a  gratuitous  promise,  and  then  enters  upon 
the  performance  of  it,  he  is  held  to  a  full  execution  of  all  he  has 
undertaken." 

It  is  unnecessary  to  endorse  so  general  a  proposition  without 
qualification  or  limitation ;  but  it  is  sufficient  to  hold  that  if  a  volun- 
tary agent,  without  compensation,  is  accountable  for  the  conse- 
quences of  his  gross  negligence,  much  more  should  he  be  held  an- 
swerable for  willful  and  malicious  fraud  and  wrong  in  connection 
with  his  assumed  undertaking. 

Questions  involving  the  principle  under  consideration  seldom  arise 
except  in  the  case  of  bailments,  but  the  principle  is  broad  enough 
to  include  the  subject  of  the  present  inquiry. 

The  demurrer  is  overruled.^ 


ISHAM  V.  POST. 

1894.     Court  of  Appeals  of  New  York.     141  N.  Y.  100. 

Appeal  from  judgment  of  the  general  term  of  the  supreme  court 
in  the  second  judicial  department,  entered  upon  an  order  made  July 

^  The  early  leading  case  on  the  subject  of  gratuitous  service  is  Coggs  v. 
Bernard,  Ld.  Raym.  909.  See  note  to  that  case  in  i  Smith  L.  C.  188.  See  Wil- 
kinson V.  Coverdale,  i  Esp.  75. 

"A  short  review  of  the  leading  cases  will  show  that,  by  the  common  law,  a 
mandatory,  or  one  who  undertakes  to  do  an  act  for  another,  without  reward 
is  not  answerable  for  omitting  to  do  the  act,  and  is  only  responsible  when  he 
attempts  to  do  it,  and  does  it  amiss.  In  other  words,  he  is  responsible  for  a 
misfeasance,  but  not  for  a  nonfeasance,  even  though  special  damages  are 
averred."    Kent,  Ch.  J.,  in  Thorne  v.  Deas,  4  Johns.  (N.  Y.)  84,  97. 


731 


This  action  was   i 
Augustus  T.  T'  '  M 
his  hands  to 
After  the   (U- 
agfainst  his  adnun  -;;;. 

The  facts. 

Finch,  T 
must  be  r 
— not  a  : 
but  famiiur    wit: 
to  some  «  xt.Mit 
market,      ile  ]^t■ 


of  t, 
reason, 
him  a<^  r. 

l.e  ' 

plO; 

truer 

himseii. 

the  mon 

difFerenc 
In  the 

the  loan  wer.. 

The  finding 

and  on  that 
Utary,  a 
liOn  as  < ' 
vas  free': 

to  those    • 

agency  the  exerc 

out  to  possess. 

tempts  to  define 

but  even  where  ti 

as  "gross,"  it  is 

ordinary  skill  o: 


/o^ 


DUTIES   0¥   AGENT   TO    PR. 


p... 


to  carry  goods  safely  and  securely  he  is  respoi 
they  may  sustain  in  the  carriage  through  ^• 
noi  a  cotmnon  carrier,  and  was  to  have  n- 

The  analogy  is  obvious,  and  the  prin 
application  of  which  tb'<^  case  is  to  be  del. 
dence  induced  by  ur  •  service  fur  aiioiiK-r 

legal  consideration  t  y  in  the  performance  > 

to  1  Smith's  Lead.  Cas.  254;  Wilkinson  v.  Covcrdale,  i 
Rep.  74 ;  Doorrtian  v.  Jenkins        '^  d   8:  '^■ 
(5th  ed.)  447,  and  note  zv. 

By  this  rule  a  .         ' 
or    official    dut^ 
:j';;UutOUsly   ' 
>-f.ce  of  nri' 
inferior 
gross  n' 

Prof, 
thus:  "!. 
the  peri' 
underta! 

It  i-^ 


damage 

^'c  was 

the 


.'luntarv  ap'cnv,  u  no 
1:    who,    nevertheles 
vice  requiring  the  trust  auw    ;      . 
.  ce  of  his  responsibility  is  grc 
\et  bound  not  to  be  guiii 

.■  in  more  broad  and  general  terms, 

ous  promise,  and  then  enters  upon 

to  a  full  execution  of  all  he  has 

o  general  a  proposition  without 
It  is  sufficient  to  hold  that  if  a  volun- 
ition,   is   accountable   for  the  conse- 

nuch  more  should  he  be  held  an- 
.'r-,1,,1    1,-,,!  x.-1-onsf  in  connection 


ni\ 


except  m  the  cri 

to  include  the  sn 

The  demurrer 


iinM'T  r.in.sKieration  seldom  arise 
but  the  principle  is  broad  enougl'^ 
..sent  inquiry. 


POST. 


.u->ij.[. 


TOO. 


Appeal  from 
in  the  second  ju' 


file  general  term  oi  1 
lent,  entered  upon  ^;^ 


:  he  early  leading  case  on  the  subject  of  gratu'- 
Bernard,  Ld.  Raym.  909.  See  note  to  that  case  in  i  S 
kinson  v.  Coverdale,  i  Esp.  75. 

"A  short  review  of  the  leading  cases  will  she 
mandatory,  or  one  who  undertakes  to  do  an  at 
■-  not  answerable  for  omitting  to  do  the  act,  ann  ■    <>ri,y 
I      nipts  to  do  it,  and  does  it  amiss.    In  other  words,  htr 

Hi,  ■■■'    but  not    for   a   non^- •     ■    though   .■>,        ..    •.  .' 

a\-.  •  t.  Ch.  J.,  in  Thorji.  hns.  (N.  Y.)  84.  9;- 


!ie  court 
•  lade  July 

e  is  Coggs  V. 
188.   SeeWil- 


ible  for  I 


I 


I 


GRATUITOUS   AGENT.  73I 

28,  1893,  which  affirmed  a  judgment  in  favor  of  plaintiff  entered 
upon  a  decision  of  the  court  on  trial  at  special  term. 

This  action  was  brought  by  plaintiff,  as  trustee,  to  recover  of 
Augustus  T.  Post  the  sum  of  $25,000  alleged  to  have  been  placed  in 
his  hands  to  be  loaned  for  plaintiff  and  to  be  returned  on  demand. 
After  the  death  of  Post  the  action  was  revived  and  continued 
against  his  administratrix. 

The  facts,  so  far  as  material,  are  set  forth  in  the  opinion. 

Finch,  J. — The  relation  between  the  parties  to  this  controversy 
must  be  regarded  as  that  of  principal  and  agent.  Post  was  a  banker, 
— not  a  member  of  the  stock  exchange,  and  so  bound  by  its  rules, 
but  familiar  with  its  customs  and  usages,  and  controlled  by  them 
to  some  extent  whenever  dealing  with  stocks  in  the  Wall  street 
market.  He  held  himself  out  to  the  business  world  in  that  char- 
acter. By  his  circulars  he  advertised  himself  as  dealing  in  "choice 
stocks,"  and  promised  his  customers  "careful  attention"  in  all  their 
financial  transactions.  Those  who  dealt  with  him  contracted  for, 
and  had  a  right  to  expect,  a  degree  of  care  commensurate  with  the 
importance  and  the  risks  of  the  business  to  be  done,  and  a  skill  and 
capacity  adequate  to  its  performance.  That  care  and  skill  is  such 
as  should  characterize  a  banker  operating  for  others  in  a  financial 
center,  and  different  in  kind  from  the  ordinary  diligence  and  capacity 
of  the  ordinary  citizen.  The  banker  is  employed  exactly  for  that 
reason.  Without  it  there  might  cease  to  be  motives  for  employing 
him  at  all. 

Isham  was  the  trustee  of  an  express  trust,  but  in  this  dispute  must 
be  regarded  simply  as  an  individual,  and  without  reference  to  his 
trust  character ;  for  the  trial  court  has  found  as  a  fact  that,  in  em- 
ploying the  banker  to  loan  for  him  $25,000.  he  gave  no  notice  of  the 
trust  character  attaching  to  the  money,  contracted  apparently  for 
himself,  and  left  Post  to  believe,  and  be  justified  in  believing,  that 
the  money  was  his  own.  The  evidence  on  the  subject  admits  of  some 
difference  of  opinion,  but  on  this  appeal  the  finding  must  control. 

In  the  same  way  the  question  whether  Post's  services  in  making 
the  loan  were  or  were  not  to  be  gratuitous  must  be  deemed  settled. 
The  finding  is  that  those  services  were  to  be  without  compensation ; 
and  on  that  ground  the  appellant  claims  that  Post  was  a  gratuitous 
mandatary,  and  liable  only  for  gross  negligence.  But,  while  no  com- 
penstion  as  such  was  to  be  paid,  it  does  not  follow  that  the  banker 
was  freed  from  the  obligation  of  such  diligence  as  he  had  promised 
to  those  who  dealt  with  him,  or  was  at  liberty  to  withhold  from  his 
agency  the  exercise  of  the  skill  and  knowledge  which  he  held  himself 
out  to  possess.  Nothing  in  general  is  more  unsatisfactory  than  at- 
tempts to  define  and  formulate  the  different  degrees  of  negligence ; 
but  even  where  the  neglect  which  charges  the  mandatory  is  described 
as  "gross,"  it  is  still  true  that  if  his  situation  or  employment  implies 
ordinary  skill  or  knowledge  adequate  to  the  undertaking,  he  will 


732  DUTIES   OF   AGENT   TO    PRINCIPAL. 

be  responsible  for  any  losses  or  injuries  resulting  from  the  want  of 
the  exercise  of  such  skill  or  knowledge.  Story  on  Bailments,  §  182a ; 
Shiells  V.  Blackburne,  i  H.  Black.  158;  Foster  v.  Essex  Bank,  17 
Mass.  479 ;  First  Nat.  Bank  v.  Ocean  Nat.  Bank,  60  N.  Y.  295.  In 
the  latter  case  it  was  said  that  ordinary  care  as  well  as  gross  negli- 
gence, the  one  being  in  contrast  with  the  other,  must  be  graded  by 
the  nature  and  value  of  the  property,  and  the  risks  to  which  it  is  ex- 
posed. Post,  therefore,  was  required  to  exercise  the  skill  and  knowl- 
edge of  a  banker  engaged  in  loaning  money  for  himself  and  for  his 
customers,  because  of  the  peculiar  character  and  scope  of  his  agency, 
because  of  his  promise  of  careful  attention,  and  because  the  con- 
tract was  made  in  reliance  upon  his  business  character  and  skill. 

We  should  next  consider  upon  whom  rested  the  burden  of  proof. 
The  plaintiff  alleged  and  proved  that  he  put  into  Post's  hands,  as 
his  banker  and  agent,  to  be  loaned  upon  demand  at  the  high  rates 
of  interest  prevailing,  and  in  the  mode  approved  by  custom  and 
usage,  the  sum  of  $25,000,  which  sum  Post  had  not  returned,  but  re- 
fused to  return  upon  proper  demand,  and  so  had  converted  the  same 
to  his  own  use.  That  made  out  plaintiff's  case.  Judgment  for  him 
must  necessarily  follow,  unless  Post,  in  answer,  has  established  an 
affirmative  defense.  That  which  he  pleaded  and  sought  to  prove  was 
that  the  money  was  lost  without  his  fault  and  through  an  event  for 
which  he  was  altogether  blameless.  In  other  words,  he  was  bound  to 
show  that  he  did  his  duty  fully  and  faithfully,  and  without  negligence 
or  misconduct,  so  that  the  resultant  loss  was  not  his,  but  must  justly 
fall  upon  the  plaintiff.  Marvin  v.  Brooks,  94  N.  Y.  75 ;  Ouderkirk 
V.  C.  N.  Bank,  119  id.  267.  With  that  burden  resting  upon  him,  we 
must  examine  his  defense  and  the  evidence  given  in  its  support,  and 
determine  whether  or  not  it  is  our  duty  to  sustain  the  adverse  con- 
clusion, to  reverse  which  he  brings  this  appeal.^     *     *     * 

Judgment  reversed. 


BEARDSLEE  v.  RICHARDSON. 
1833.     Supreme  Court  of  New  York,     it  Wend.  25. 

This  was  an  action  on  the  case,  tried  at  the  Onondaga  circuit  in 
March,  1832,  before  the  Hon.  Daniel  Moseley,  one  of  the  circuit 
judges. 

The  declaration  contains  several  special  counts ;  in  the  one  prin- 
cipally relied  on,  it  is  stated  that  the  plaintiff  delivered  to  the  defend- 
ant a  bank  note  for  $100,  the  property  of  the  plaintiff,  which  the  de- 
fendant undertook  and  promised  to  take  care  of,  and  safely  carry  from 
New  Orleans  to  the  town  of  Salina  in  this  state,  and  there  deliver  the 

*  The  court  here  considered  the  question  whether  Post  was  in  fact  negligent. 


<:  to  the 


but  wholly  11* 
tains  the  co; 
duced  the  d^ 
who  state'  " 
to  the  'I 
Beardsl'j' 
bill  for  ,^ 
ter,  and 


of  the  ci 
and  the 

^his  str't 


li  Uti. 

By  iHK  (' 


■AVdi  tact,  nor  u<:s 
>ealed  letter.  It  c 
unless  he  broke  tl 
and  there  is  v-- 

It  was  a  s€ 
tho  .Icr.rn.'.!i 

I  not  recovc 
;s  bailee.    T: 
•v'hether  he  wa;^   . 
From  the  testimoii , 
or  application  of  any 
was  bound  to  show  &■ 


i'^ 


DUTIES   OF   AGENT   TO 


be  responsible  for  any. losses  or  injuries  resuli: 
tli'^  «.\\ercise  of  such  skill  or  knowledge.    Sto'--- 
^!  it:lls  V.  Blackbume,  i  H.  Black.  158;  1 
.Mjss.  479;  First  Nat.  Bank  v.  Ocean  Nat.  i  auK, 
rlic  IflHer  case  it  was  sai<l  that  ordinary  care  a«  wc 
c  one  being  '  >t  with  the  othe- 

e  and  value  v  • 'perty,  and  the  i' 

i.    Post,  therefore,  was  required  to  exercit; 
.  .^c  of  a  banker  enrr;!  ■'"'•' 
customers,  because  o. 
because  of  his  promi-r  • 
tract  was  made  in  relianct 

We  sl>    ■  • 
The  pla; 


want  of 

"^  '82a; 

;.,  17 

,.    In 

;cgH- 

I  by 


!l     p 


roof. 


his  banker  ,i. 
of  interest  ; 
usage,  the  sum  o^ 
fused  to  retnrr-  '^ 
to  his  own  r;-: 


fall  upon  the  plai; 
V.  C.  N.  Ban'-    - 
must  examin' 
determine  wl 
chision,  to  r«;.. 

Judgment  reversed. 


ng  money  fo.  . 

character  and  sc< 

1  attention,  and  b^^.; 

business  character  a 

vhoni  rested  the  burduu 

that  he  put  into  Post's  hands,  as 

I  upon  demand  at  the  high  rates 

'  mode  approved  by  custom  and 

um  Post  had  not  returned,  but  re- 

'd,  and  so  had  converted  the  same 

•-lintiff's  case.    Judgment  for  him 

■st,  in  answer,  has  established  an 

>  pleaded  and  sought  to  prove  was 

LiL  his  fault  and  through  an  event  for 

less.    In  other  words,  he  was  bound  to 

md  faithfully,  and  without  negligence 

.  -   ultant  loss  was  not  his.  but  must  justly 

irvin  v.  Brooks,  94  N.  Y.  75 ;  Ouderkirk 

^^'''ith  that  burden  resting  upon  him,  we 

the  evidence  given  in  its  support,  and 

■  duty  to  sustain  the  adverse  con- 

this  appeal.^     *     ♦     * 


1833.     Sltprem: 


\Ew  York,     ii  Wend.  2^ 


,  as  an  action  on 
1832,  before  the 


..es. 


tried  at  the  Onondatja  circuit  in 

''■r\  ''""•'r.  ■  ..'  circuit 


J11- 


Ihe  declaration  contains  .^c\c:rai  b.pccial  co  Juts ,  m  ' 
cipally  relied  on,  it  is  stated  that  the  plaintiff  delivered  t-  cl- 

ant  a  bank  note  for.  $100,  the  property  of  the  plaintiff,  which  the  de- 
fendant undertook  and  promised  to  take  care  of,  and  safely  carry  from 
Mew  Orleans  to  the  town  of  Salina  in  this  state,  and  there  deliver  the 


i  lie  court  here  considered  the  question  whether  Post  was  in  fact  negligent. 


GRATUITOUS   AGENT.  733 

same  to  the  plaintiff  in  a  reasonable  time  then  next  following ;  it  is 
then  averred,  that  although  a  reasonable  time  had  elapsed,  etc.,  the 
defendant  did  not  and  would  not,  although  often  requested,  etc., 
safely  and  securely  carry  the  bank  note  from  New  Orleans  to  Salina, 
but  wholly  neglected  and  refused  so  to  do.  The  declaration  also  con- 
tains the  common  money  counts.  On  the  trial,  the  plaintiff  pro- 
duced the  deposition  of  William  Beardslee,  taken  at  New  Orleans, 
who  stated  that  in  the  spring  of  1829,  at  New  Orleans,  he  delivered 
to  the  defendant  a  sealed  letter  addressed  to  the  plaintiff,  James 
Beardslee,  at  Salina  in  this  state,  containing  a  United  States  bank 
bill  for  $100,  and  informed  the  defendant  of  the  contents  of  the  let- 
ter, and  that  the  bill  belonged  to  the  plaintiff ;  and  that  the  defendant 
promised  to  deliver  the  letter  to  the  plaintiff  as  soon  as  he  arrived 
at  Salina,  stating  that  he  was  going  to  Auburn,  and  would  proceed  to 
Salina  and  deliver  the  letter  to  the  plaintiff.  It  was  further  proved, 
that  about  the  ist  of  May,  1829,  the  defendant  was  at  Auburn,  and 
that  this  suit  was  commenced  in  May,  1830.  The  judge  refused  to 
nonsuit  the  plaintiff,  and  charged  the  jury  that  although  the  plain- 
tiff was  not  entitled  to  recover  on  the  special  counts  of  his  declara- 
tion, yet  he  would  submit  to  them  whether  he  was  not  entitled  to  re- 
covery on  the  money  counts.  He  remarked  that  the  plaintiff  having 
shown  the  placing  of  the  letter  containing  the  bank  note  in  the  hands 
of  the  defendant,  his  promise  to  deliver  it,  his  arrival  at  Auburn, 
and  the  lapse  of  a  year  thereafter  previous  to  the  commencement  of 
this  suit;  it  was  left  to  them  to  say  whether  a  demand  might  not 
be  presumed,  if  a  demand  was  necessary.  And  he  further  instructed 
the  jury,  that  although  the  defendant  was  a  bailee  without  hire,  yet 
the  facts  shown  seem  to  impose  upon  him  the  necessity  of  making 
some  proof  accounting  for  the  letter  and  bank  note.  The  jury  found 
a  verdict  for  the  plaintiff  for  $114.  The  defendant  moves  for  a  new 
trial. 

By  the  Court,  Savage,  Ch.  J. — If  the  defendant  was  liable  upon 
the  money  counts,  he  was  not  liable  as  bailee,  but  as  having  received 
the  money  of  the  plaintiff  for  his  use.  The  evidence  does  not  prove 
that  fact,  nor  does  it  show  that  he  received  it  otherwise  than  in  a 
sealed  letter.  It  cannot  be  said  to  be  money  in  the  defendant's  hands  ; 
unless  he  broke  the  seal,  it  could  not  answer  the  purposes  of  money, 
and  there  is  no  evidence  of  such  act. 

It  was  a  sealed  package  of  the  value  of  one  hundred  dollars,  which 
the  defendant,  as  bailee,  without  reward,  undertook  to  deliver.  It 
was  held  at  the  circuit,  and,  I  think,  correctly,  that  the  plaintiff 
could  not  recover  upon  his  special  counts,  which  charged  the  defend- 
ant as  bailee.  The  defendant  was  liable  for  gross  neglect  only ;  and 
whether  he  was  guilty  of  any  neglect,  does  not  sufficiently  appear 
from  the  testimony.  It  does  not  appear  that  any  demand  was  made, 
or  application  of  any  kind,  until  the  suit  was  brought.  The  plaintiff 
was  bound  to  show  that  the  money  was  lost  by  the  defendant's  neg- 


734  DUTIES    OF   AGENT    TO   PRINCIPAL. 

ligence,  or  could  not  be  obtained  on  request.  Had  he  shoAvn  a  de- 
mand and  refusal,  the  defendant,  I  think,  would  have  been  bound  to 
account  for  the  loss,  and  to  indemnify  the  plaintiff,  unless  he  could 
show  the  property  lost  without  fault  on  his  part,  that  is,  without 
gross  negligence. 

New  trial  granted,  costs  to  abide  event. ^ 


VICKERY  V.  LANIER. 
1858.     Court  of  Appeals  of  Kentucky,     i  Met.  133. 

The  facts  appear  in  the  opinion. 

Stites,  J. — No  doubt  exists  as  to  the  principles  of  law  applicable 
to  this  case.  If  the  appellees,  or  either  of  them,  undertook  for  a  con- 
sideration to  insure  the  goods  which  were  lost,  and  failed  and  neg- 
lected to  comply  with  such  undertaking,  a  liability  at  once  attached 
for  any  damage  resulting  from  such  failure. 

Or,  if  such  undertaking  were  merely  gratuitous,  and  they  pro- 
ceeded to  execute  it,  and  then  abandoned  or  neglected  its  perform- 
ance, a  like  liability  accrued. 

In  the  one  case  the  claim  for  damage  would  grow  out  of  a  breach 

^  In  Doorman  v.  Jenkins,  2  A.  &  E.  256,  it  was  held  that  a  gratuitous  bailee 
is  Hable  only  when  guilty  of  gross  negligence.  On  page  261  Taunton,  J.,  said : 
"The  phrase  'gross  negligence'  means  nothing  more  than  a  great  and  aggra- 
vated degree  of  negligence,  as  distinguished  from  negligence  of  a  lower 
degree." 

"To  define  what  constitutes  'gross  negligence'  so  as  to  render  the  phrase 
more  intelligible  or  exact,  is  difficult  if  not  impossible ;  and  all  attempts  to  do 
so  have,  it  would  seem,  heretofore  failed.  We  are  disposed  to  regard  it  as  a 
question  of  fact,  to  be  determined  by  reference  to  all  the  circumstances  of 
the  case,  including  the  subject-matter  and  objects  of  the  agency,  and  the  known 
character,  qualifications,  and  relations  of  the  parties.  What  would  be  but 
slight  negligence  in  the  treatment  of  a  matter  of  trifling  importance,  might 
perhaps  be  gross  negligence  in  dealing  with  concerns  of  momentous  interest. 
And  a  stupid  or  ignorant  man,  while  devoting  all  his  powers  to  the  duties  of 
his  agency,  might  be  guilty  of  blunders  of  omission  or  commission  which,  in 
one  of  higher  qualifications,  would  be  strong  or  conclusive  evidence  of  culpable 
delinquency."    Brinkerhofif,  J.,  in  Grant  v.  Ludlow's  Adm'r,  8  Ohio  St.  i,  10. 

"No  one  taking  upon  himself  a  duty  for  another  without  consideration  is 
bound,  either  in  law  or  morals,  to  do  more  than  a  man  of  that  character  would 
do  generally  for  himself  under  like  conditions.  The  exercise  of  reasonable  care 
is  in  all  such  cases  the  dictate  of  good  faith.  *  *  *  The  general  doctrine,  as 
stated  by  text-writers  and  in  judicial  decisions,  is  that  the  gratuitous  bailees  of 
another's  property  are  not  responsible  for  its  loss  unless  guilty  of  gross  negli- 
gence in  its  keeping.  But  gross  negligence  in  such  cases  is  nothing  more  than 
a  failure  to  bestow  the  care  which  the  property  in  its  situation  demands ;  the 
omission  of  the  reasonable  care  required  is  the  negligence  which  creates  the 
liability;  and  whether  this  existed  is  a  question  of  fact  for  the  jury  to  deter- 
mine."  Field,  J.,  in  Preston  v.  Prather,  137  U.  S.  604,  608. 


uch  liabilit; 
iiic  parties 
e  question  • 
.r  on  the. 
'    i  verdict 
'eicl  such  a  riu;l!;;i;  ■ 

About  the  '■ 
onceded  tha' 
::  Nashvi'.' 
iealings  1 
Orleans  ; 
point  to 

pellants  h,i  ;  ni  .. 
surance.  aiid  tliai 
nor  any  for  their  ■ 
;,,rr  f  ,  forward  *'^ 
'eg^ed  u' 


'XL  an  V 
.  or,  in 


ocery  and  c- 


lu  be  ; 
"F.ki   CO' 


in  case  of 

■:■  at  New>-'i  ■■■ 
The  answer 


tk- 


ide  lo  ■ 
;  or  thai 
previous  deaiivi:^-  between  the  parties  from  which  any  pr- 
^o;-reement  to  iiisr.re  could  have  been  or  was  implied. 
Jones,  the  witness,  and  the  only  one  who  is  inti 
the  direct  uu  ' 

T..  A.  T^anier 


saw 

this  !..,.,    . ,-, . 

T.anier  ^ave  me  , 

'othing  was  offc. 

ontract  to  insiir* 

ie  could 
,o  have  i 
would  be 
that  he  ' 
done. 

asure,  because  ro  fu; 
nat  it  was  not  i' 
.'ashville  to  insu; 
This  was  subst 
n-  undertaking, 
nsufficient  to  est; 
(.ffect. 


;   couid  not  be  obtained  on  rcqucsi  n  a  de- 

'■  refusal,  the  defendant,  I  think,  \v«- u  .jund  to 

It  for  the  loss,  and  to  indemnify  the  plaii;  e  could 

the  property  i-^-*   "•"■^•— ^   ^-^-it     •.   i.-  •  ■  ,,-'rhout 

aegligence. 

\-:  i.r:.':l  o^ranteci,  ccs;-:  lo  aDjac  evenc.- 


185S.     CoT-T,  -  Kentv". 

The  fa; 

Stites,  the  principles  of  law  applicable 

to  thi  er  of  them,  undertook  for  a  con- 

'^i'ier  h  were  lost,  and  failed  and  ncg- 

^  a  liability  at  once  attached 
iilure.    • 
;  e  merely  gratuitovis,  and  they  pro- 

i]  ,:i  ■  1  IrnTf, '    I  >.r    1  jf^O'W->r  t  ,■■1'    'r^    riiTfcirin- 

-'■'■"'■     ■''      "  '  -'  '  that  a  gratuitous  bailee 

261  Taunton,  J.,  said: 
>-  .ian  a  great  and  aggra- 
■m    negligence   of   a    lower 

1'  so  as  to  render  the  phrase 

^1   -  ■  -ible;  and  all  attempts  to  do 

We  are  disposed  to  regard  it  as  a 

-eference  to  all  the  circumstances  of 

,   :  objects  of  the  agency,  and  the  known 

f   the  parties.    What   would   he  but 


r  would 
ble  care 


statei"  iters  and  in  j,  -^ions,  is  that 

-  its  loss    '   '' 
e  in  suci 
•  ^  :■-   ;■•-.  .>^     i,L   I.  ..^    ^  I'.M.   >.[r.   jjfopcrty  :: 
11  of  the  reasonable  care  required  is  the  : 
.  :  ;n\d  whether  this  existed  is  a  nni-' 
'd,  ].,  in  Preston  v.  Prather, 


GRATUITOUS    AGENT.  735 

of  contract,  and  in  the  other  out  of  the  misfeasance  of  the  party.  But 
to  create  such  Habihty,  however,  there  must  have  been  an  undertak- 
ing.    The  parties  should  have  intended  to  enter  into  the  agreement. 

The  question  here  is,  was  there  sufficient  evidence  of  an  under- 
taking on  the  part  of  Lanier  to  effect  an  insurance,  to  have  author- 
ized a  verdict  in  behalf  of  appellants,  or,  in  other  words,  to  have  up- 
held such  a  finding? 

About  the  general  facts  of  the  case  there  is  no  controversy.  It  is 
conceded  that  Lanier  &  Co.,  were  grocery  and  commission  merchants 
in  Nashville;  but  that,  prior  to  this  transaction,  there  had  been  no 
dealings  between  the  parties  ;  that  the  goods  were  shipped  from  New 
Orleans  to  their  care  at  Nashville,  to  be  re-shipped  from  the  latter 
point  to  Stigell's  Landing,  in  Pulaski  county,  Kentucky ;  that  ap- 
pellants had  no  funds  in  the  hands  of  Lanier  &  Co.,  to  pay  for  in- 
surance, and  that  no  arrangement  had  been  made  for  that  purpose, 
nor  any  for  their  reimbursement  in  case  of  insurance.  The  undertak- 
ing to  forward  the  goods  was  made  at  New  Orleans  some  days  before 
the  alleged  undertaking  to  insure.  The  answer  admits  the  undertak- 
ing to  forward,  but  emphatically  denies  any  promise  or  undertaking, 
implied  or  express,  to  insure ;  admits  also,  that  word  was  sent  to  in- 
sure, and  that  an  effort  was  thereafter  made  to  that  effect,  but  denies 
that  they  promised  to  obtain  insurance,  or  that  there  had  been  any 
previous  dealing  between  the  parties  from  which  any  promise  or 
agreement  to  insure  could  have  been  or  was  implied. 

Jones,  the  witness,  and  the  only  one  who  is  introduced  to  prove 
the  direct  undertaking  or  promise,  says,  in  substance,  that  after 
L.  A.  Lanier  had  started  to  Nashville,  Vickery  requested  him  (the 
witness)  to  tell  Lanier  at  Nashville  to  have  the  goods  insured ;  that, 
according  to  request,  he  went  to  the  counting-room  of  Lanier  &  Co., 
saw  Lanier  alone,  and  informed  him  of  the  request  of  Vickery  in 
this  language :  "Vickery  wants  his  things  or  goods  insured,"  and  that 
"Lanier  gave  me  to  understand,  as  I  thought,  that  it  would  be  done." 
Nothing  was  offered  Lanier  to  pay  for  insurance,  nor  were  there  any 
contract  to  insure.  Nothing  was  said  about  paying  for  insurance. 
He  could  not  say  that  Lanier  did  or  said  anything  when  he  told  him 
to  have  the  things  insured,  but  it  was  his  understanding  "that  it 
would  be  done."  Upon  his  return  to  Pulaski  he  was  told  bv  Lanier 
that  he  had  tried  to  insure  Vickery's  goods,  but  could  not  get  it 
done. 

McKee  proved  that  Lanier  told  him  no  effort  had  been  made  to 
insure,  because  no  funds  had  been  left  to  pay  for  it.  And  Gordon, 
that  it  was  not  the  custom  or  duty  of  commission  merchants  in 
Nashville  to  insure  goods  forwarded  to  them. 

This  was  substantially  all  the  evidence  as  to  the  alleged  promise 
or  undertaking.  And  we  have  no  hesitation  in  saying  it  was  wholly 
insufficient  to  establish  such  promise,  or  to  uphold  a  verdict  to  that 
effect. 


736  DUTIES    OF    AGENT    TO   PRINCIPAL. 

The  utmost  it  proves  is  a  request  to  insure,  and  the  impression  or 
understanding  of  the  witness  that  "it  would  be  done,"  without,  as 
he  says,  any  word  or  act  upon  which  to  found  such  understanding. 

A  simple  request  to  insure,  where  no  funds  are  provided,  or  where 
there  has  been  no  previous  dealing  between  the  parties  or  no  goods 
on  consignment  from  which  the  party  requested  may  reimburse  him- 
self, will  not,  of  itself,  devolve  upon  him  the  duty  to  insure,  or  render 
him  liable  for  failing  so  to  do.  Neither  will  his  subsequent  effort  to 
comply  with  such  request  have  that  effect.  There  must  have  been  an 
undertaking  or  promise  to  insure,  made  at  the  time,  and  intended  as 
such  by  the  parties.  The  party  making  the  request  must  have  had 
some  assurance  on  which  he  had  the  right  to  rely,  and  from  which 
he  had  the  right  to  expect  the  other  party  would  insure,  or,  in  other 
words,  there  must  in  the  language  of  all  the  books  have  been  an 
undertaking  to  that  effect.     Without  it  no  liability  attaches. 

Such  promise  or  undertaking  is  implied  where  the  course  of  deal- 
ing has  been  such  that  the  agent  has  been  used  to  effect  insurances, 
or  where  he  has  funds  or  effects  on  hand,  or  even  where  the  bill  of 
lading  from  which  he  derives  his  authority  contains  an  order  to 
insure,  or  where  the  general  usage  is  to  insure,  and  in  such  case  he 
is  bound  at  his  peril  to  insure.  But  in  the  absence  of  these  circum- 
stances, as  in  this  case,  no  such  obligation  rests  upon  him.  And  he 
is  not  bound  for  any  loss  arising  from  a  failure  to  insure,  unless  he 
has  undertaken  so  to  do.  (Story's  Agency,  238;  Paley  on  Principal 
and  Agent  19;  Story  on  Bailments  165.) 

Our  opinion,  therefore,  is,  that  the  court  below  properly  instructed 
the  jury  to  find  for  appellees,  and  the  judgment  must  be  affirmed.^ 


McNEVINS  V.  LOWE. 

1866.     Supreme  Court  of  Illinois.     40  111.  209. 

Lawrence,  J. — This  was  an  action  brought  against  the  appellant 
for  malpractice  as  a  surgeon  and  physician.  In  the  third  and  fourth 
instructions  for  the  plaintiff,  the  court  told  the  jury  that  the  defend- 
ant, if  he  held  himself  out  as  a  physician,  was  liable  for  whatever 
damage  may  have  accrued  to  the  plaintiff  by  reason  of  any  want  of 
care  or  skill  on  his  part  whether  he  charged  fees  or  not.  This  states 
the  responsibility  of  a  physician  too  strongly,  as  it  requires  the  high- 
est degree  of  care  and  skill,  whereas  only  reasonable  care  and  skill 
are  necessary.     As  to  the  payment  of  fees  the  instruction  is  unob- 

^  The  principal,  upon  learning  that  the  agent  has  failed  to  insure,  should 
effect  the  insurance  himself.  If  he  fails  to  do  so,  he  cannot  recover  from  the 
agent  for  a  resulting  loss.    Brant  v.  Gallup,  11 1  111.  487. 


he  must  be  held  to  orcl: 


ticf  as  sucii,  an< 
he  does   not   iv 
Ritchey  v.  W-. 
judgment   niu 
highest  dearer 


Judgment 


riglit  tc  I  se 

officers  ill 

The  bil 
a  statf -n 
linqiH. 
ment 
cient  ' 
secor 
third,  1 
withdraw , 
use,  the  f; 
president 
duties. 

The  que^^-''"i  'i 
is  to  be  M 
bill,  do  noi 

Viewed  in  ■ 
to  persons  h' 
t'cndant^.  is  i' 
is  a   plain  one- 
manner  provided 
prudence  in  so  d  < 
servants,  but  the 
vigilance  was  nor' 


The  utmost  it  proves  is  a  request  to  insi 
uD.lcrstanding  of  ihe  witness  that  "it  wov 
he  siays,  any  word  or  act  upon  which  to  foir 

A  simple  request  to  insure,  where  no  fuu... 
there  has  been  no  previous  deaUng  between  tl 
on  consignment  from  which  the  party  requeste 
self,  will  not,  of  itself,  'ievolve  v.pon  him  the  dv 
him  liable  for  failing 
comply  with  such  rec 
undertaking  or  prom 
such  by  the  parties, 
some  assurance  on  which 
he  had  the  right  to  expec 
words,  there  must  in  th. 
undertaking  to  that  t'"' 


■'1  or 

'  ■  li,  as 

ding. 

-  vvhere 

lods 


Such  pronii-'^'  nr  w 
ing  has  : 
or  wher- 

from  which  : 

1  o  tiif 


'i^ 


-i.  .ure,  or 
is  bound 


Our  opinion,  ih 


'  ither  will  hi^  io 

[  effect.  Thv^  an 

vnade  at  the  tinu 
iaking  the  reque.-^ 
;he  right  to  rely,  and  trom  which 
ler  party  would  insure,  or,  in  other 
c^e  of  all  the  books  have  been  an 
'Ut  it  no  liabihty  attaches. 
implied  where  the  course  of  deal- 
las  been  used  to  effect  insurances, 
n  hand,  or  even  where  the  bill  of 
>  authority  contains  an  order  to 
„,;,;:  is  to  insure,  and  in  such  .case  he 
But  in  the  absence  of  these  circum- 
h  obligation  rests  upon  him.    And  he 
'!g  from  a  failure  to  insure,  unless  he 
■-  Agencv,  238;  Paley  on  Principal 
.165.) 
at  the  court  below  properly  instructed 
•\r]  trie-  iiidcment  must  be  aiifinned.'^ 


McNEVINS  V.  LOWE. 


1866.     Supreme  Court  of  Illinois.    40  111.  209. 


Lawrence,  J. — Th!^  vas  an  action  brought  again=!t  the  appellant 
for  malpractice  as  a  ad  physician.    In  the  •  fourth 

instructions  for  the  pi,., .,  .c,  .ae  court  told  the  jur}  ■...■.  ^>.«.  defend- 
ant, if  he  held  himself  out  as  a  physician,  was  liable  for  whatever 
damage  may  have  accrued  to  the  plaintiff  by  reason  of  any  want  of 
care  or  skill  on  his  part  whether  he  charged  fees  nr  rK>t.  This  states 
the  responsibility  of  a  physician  too  strongly,  a  -es  the  h';jj' 

est  degree  of  care  and  skill,  whereas  only  rea-  .ire  and  .^kili 

are  necessary.     As  to  the  payment  of  fees  the  mst ruction  is  unob- 

'  The  principal,  upon  ]eamin.g  that  the  agent  has  failed  to  insure,  should 
effect  the  insurance  himself.  If  he  fails  to  do  !^o.  h-r  rarnot  recover  from  the 
agciU  for  a  resulting  loss.   Brant  v.  Gal' 


GRATUITOUS    AGENT.  '/■};j 

jectionable.  If  a  person  holds  himself  out  to  the  public  as  a  physician 
he  must  be  held  to  ordinary  care  and  skill  in  every  case  of  which  he 
assumes  the  charge,  whether  in  the  particulr  case  he  has  received 
fees  or  not.  But  if  he  does  not  profess  to  be  a  physician  nor  to  prac- 
tice as  such,  and  is  merely  asked  his  advice  as  a  friend  or  neighbor, 
he  does  not  incur  any  professional  responsibility.  The  case  of 
Ritchey  v.  West,  23  111.  385,  is  to  be  understood  in  this  sense.  The 
judgment  must  be  reversed  because  the  instruction  required  the 
highest  degree  of  care  and  skill. 
Judgment  reversed. 


WILLIAMS  V.  McKAY  et  al. 

1885.     Court  of  Errors  and  Appeals  of  New  Jersey. 
40  N.  J.  Eq.  189. 

Beasley,  C.  J. — This  bill  was  exhibited  by  the  receiver  of  the 
Mechanics'  and  Laborers'  Savings  Bank  against  its  managers,  for 
the  purpose  of  holding  them  liable  for  certain  losses  sustained  by 
the  institution  from  time  to  time  through  a  series  of  years.  The 
right  to  the  relief  prayed  is  based  on  the  alleged  negligence  of  these 
officers  in  the  management  of  the  corporate  affairs. 

The  bill  which  is  somewhat  loosely  framed  contains,  in  substance, 
a  statement  which  is  mainly  substantiated  by  details  of  official  de- 
linquencies in  the  following  particulars,  viz. :  First,  in  the  invest- 
ment of  moneys  in  a  large  number  of  specified  instances  on  insuffi- 
cient landed  security,  and  in  violation  of  the  charter  of  the  company ; 
second,  in  the  loaning  of  other  moneys  on  mere  personal  securitv ; 
third,  in  permitting  the  president  of  the  bank,  one  John  Halliard,  to 
withdraw,  without  giving  adequate  security ;  and  to  apply  to  his  own 
use.  the  funds  of  the  bank ;  and  fourth,  in  the  failure  to  require  the 
president  to  give  bond  for  the  faithful  performance  of  his  official 
duties. 

The  question  before  this  court  is  whether  the  decree  appealed  from 
is  to  be  sustained,  which  holds  that  these  charges,  as  stated  in  the 
bill,  do  not  lay  any  ground  of  equity  in  the  complainant. 

Viewed  in  its  general  aspect,  the  equitable  rule  which  is  applicable 
to  persons  holding  official  positions,  such  as  were  held  by  these  de- 
fendants, is  not  in  doubt.  The  duty  belonging  to  such  a  situation 
is  a  plain  one — to  care  for  the  moneys  intrusted  to  them  in  the 
manner  provided  in  the  charter,  and  to  exercise  ordinary  care  and 
prudence  in  so  doing.  It  is  true  that  the  defendants  were  unpaid 
servants,  but  the  duty  of  bringing  to  their  office  ordinary  skill  and 
vigilance  was  none  the  less  on  that  account,  for  to  this  extent  there 
47 — Rein  HARD  Cases. 


738  DUTIES    OF   AGENT   TO    PRINCIPAL, 

is  no  distinction  known  to  the  law  between  a  volunteer  and  a  salaried 
agent.  These  defendants  held  themselves  out  to  the  public  as  the 
managers  of  this  bank,  and  by  so  doing  they  severally  engaged  to 
carry  it  on  in  the  same  way  that  men  of  common  prudence  and  skill 
conduct  a  similar  business  for  themselves.  This  is  the  measure  of 
the  responsibility  of  officers  of  this  kind.^ 
Decree  unanimously  reversed. 

^  See  collection  of  cases  on  liability  of  bank  directors  in  5  Cyc.  480-482. 

A  leading  case  on  the  subject  of  the  liability  of  bank  directors  is  Hun  v. 
Cary,  82  N.  Y.  65.  On  page  74  of  that  case  Earl,  J.,  said :  "One  who  volun- 
tarily takes  the  position  of  director,  and  invites  confidence  in  that  relation,  un- 
dertakes, like  a  mandatory,  with  those  whom  he  represents  or  for  whom  he 
acts,  that  he  possesses  at  least  ordinary  knowledge  and  skill,  and  that  he  will 
bring  them  to  bear  in  the  discharge  of  his  duties.  Such  is  the  rule  applicable  to 
public  officers,  to  professional  men  and  to  mechanics,  and  such  is  the  rule  which 
must  be  applicable  to  every  person  who  undertakes  to  act  for  another  in  a 
situation  or  employment  requiring  skill  and  knowledge ;  and  it  matters  not 
that  the  service  is  to  be  rendered  gratuitously." 

See  Morawetz,  Private  Corporations,  §  552. 


Til 


Section  1. — ^By  the  Terms  of  the  Agreement, 
GUNDL 


legeci  fai 

cert  a-"  • 


Illinois,  I 

&  E 

hay    1-^ 
Gundlac- 

The  s^' 
':oiintv  -., 


Fischer 

tumish  1 
G.  Fisch^ 
1867;  th: 


First.    To  sell  no 


IS   Ol    liiis    li 

on  in  the  ;.i 
a  simi" 
!)onsibilit\ 
\  ce  unanimoii 

'  See  collection  of  c; 
\    ir.w'Jn  >  case  on  \ 
V.  65.,  O' 
^le  po.-.;(i< 
uertaKf  s,  iike  a  ■  n 
acts,  that  he  .pos<^^ 
bring  them  to  bea, 
pnbiic  officers,  to  ■ 
must  be   ap!    ' 
situation  or 


\vn  to  Uie  l.i\ 
.rioi-(<t:  1-ield  . 
bv  so 

hat  11! 


'.laried 
IS  the 


of  bank  directors  in  S 

.,,.  i;.,K,i;u,  rj  !..,:).-  .1;: 


,  lom  he  represents 

..lowledgc  and  skill, 

iilt  duties.    Such  is  the  rule  .ij.ir..v;iiLJ(,  i-:^ 

t"  mechanics,  and  such  is  the  rule  which 

takes  to  act  for  another  in  a 

aowledge;  and  it  matters  not 

:!:i'  liMY. 

S  §  552. 


CHAPTER  XIII. 

TERAIINATION  OF  AGENCY. 


Section  1. — By  the  Terms  of  the  Agreement. 

GUNDLACH  et  al.  v.  FISCHER  et  al. 
1871.     Supreme  Court  of  Illinois.     59  111.  172. 

Action  by  Gundlach  and  another  against  Fischer  and  others  on 
a  bond  given  by  Fischer  as  principal  and  the  others  as  sureties,  for 
the  faithful  performance  by  Fischer,  of  his  duties  as  agent,  for  the 
plaintiffs,  for  the  sale  of  certain  machines.  The  suit  was- for  an  al- 
leged failure  of  Fischer  to  account  for  and  pay  over  to  the  plaintiff 
certain  moneys  received  by  him  from  the  sale  of  machines,  as  re- 
quired by  the  terms  of  the  agreement.  The  bond  was  given  to  secure 
the  performance  of  Fischer's  agreement,  which  was  as  follows : 

Article  of  agreement,  made  and  entered  into,  by  and  between 
Gundlach  &  Esler,  of  Belleville,  St.  Clair  county,  and  state  of  Illi- 
nois, and  George  Fischer,  of  Trenton,  county  of  Clinton,  state  of 
Illinois,  in  manner  and  form  following,  to  wit : 

The  said  George  Fischer  agrees  to  act  as  agent  for  said  Gundlach 
&  Esler,  for  the  sale  of  the  Buckeye  reaper  and  mower,  and  horse 
hay  rakes,  and  Gundlach's  patent  grain  drill,  manufactured  by 
Gundlach  &  Esler,  Belleville,  Illinois. 

The  said  agency  shall  extend  over  and  in  the  vicinity  of  Trenton, 
county  of  Clinton,  state  of  Illinois,  in  conformity  with  the  terms 
and  stipulations  hereinafter  expressed ;  and  the  said  Gundlach  & 
Esler  in  consideration  of  the  faithful  performance  by  the  said  G. 
Fischer  of  the  obligations  by  him  hereinafter  assumed,  agree  to 
furnish  the  said  G.  Fischer  such  number  of  machines  as  the  said 
G.  Fischer  may  be  able  to  sell  as  their  agent,  prior  to  October  ist, 
1867 ;  the  said  Gundlach  &  Esler  reserving  to  themselves  the  right, 
in  case  they  shall  not  be  able  to  fill  his  orders,  to  restrict  him  to 
such  number  of  machines  as  they  may  be  able  to  supply. 

The  said  G.  Fischer  further  agrees,  in  acting  as  such  agent : 

First.    To  sell  no  other  machines  or  rakes  but  such  as  are  fur- 

739 


740  TERMINATION    OF   AGENCY. 

nished  by  Gundlach  &  Esler ;  and  in  making  sales,  to  be  governed 
by  the  instructions  hereto  annexed,  and  such  as  may  be  given  by 
Gundlach  &  Esler  from  time  to  time,  either  in  writing  or  print,  and 
made  part  of  this  contract ;  and  in  no  case  to  sell  a  machine,  or  any 
part  thereof,  to  any  person  or  persons  not  known  by  him  to  be  per- 
fectly good  and  responsible. 

Second.  To  receive  and  take  good  care  of  all  machines  sent  to 
him  as  such  agent ;  to  have  them  properly  stored ;  to  pay  all  freight 
and  charges  thereon ;  to  do  any  and  all  business  connected  with  the 
same,  and  putting  them  in  successful  operation.  And  should  any 
machines  remain  unsold  at  the  end  of  the  season,  to  hold  the  same 
subject  to  the  order  of  Gundlach  &  Esler,  and  deliver  the  same  in 
as  good  order  as  when  received,  when  required,  to  them  or  their 
authorized  agent,  free  from  any  and  all  charges  whatsoever,  except 
for  money  advanced  for  freight. 

Third.  To  attend  to  selling  said  machines  and  collecting  and  re- 
mitting all  moneys  to  Gundlach  &  Esler  promptly  and  at  the  time  of 
each  sale. 

Fourth.  To  attend  to  collecting  of,  or  to  the  obtaining  of  further 
security  on  or  to  the  renewal  of  such  notes  as  are  not  paid  promptly 
at  maturity.  For  performing  the  services  herein  enumerated  the 
said  Gundlach  &  Esler  agree  to  pay  the  said  Fischer  ten  dollars  on 
each  reaper  sold,  two  dollars  on  each  rake,  and  eight  dollars  for  each 
drill,  all  sold  and  settled  for  as  above,  the  same  to  be  payable  at  the 
time  and  in  the  same  proportion  as  the  payments  are  made  on  the 
machines  sold ;  the  foregoing  sum  to  include  the  compensation  for 
receiving,  storing,  delivering,  selling,  collecting,  remitting  and  put- 
ting the  machines  in  practical  operation. 

In  testimony  whereof  the  parties  hereunto  set  their  hands  and  seals 
this  3d  day  of  May,  1867. 

DuNDLACH  &  Esler.     (L.  S.) 
George  Fischer.  (L.  S.)^ 

Per  Curiam. — A  fair  and  reasonable  construction  of  the  agree- 
ment makes  Fischer  the  agent  of  Gundlach  &  Esler,  for  the  sale  of 
machines,  until  the  first  of  October,  1867.  And  the  appellees,  by  their 
obligation,  undertook  for  the  faithful  discharge  of  all  of  Fischer's 
duties  as  such  agent,  and  that  he  should  account  for  and  pay  all 
moneys,  notes,  etc.,  to  Gundlach  &  Esler,  for  property  and  for  ma- 
chinery received  prior  to  that  date.  It  appears,  from  the  evidence, 
that  he  received  machinery  prior  to  the  first  day  of  October,  1867, 
amounting  to  $2,023.92.  For  his  faithful  account  of  that  sum  his 
sureties  are  liable,  but  they  are  not  for  machines  or  property  received 
after  that  date.  The  agreement  only  contemplated  that  he  should 
act  as  agent  up  to  that  time,  and,  hence,  the  sureties  only  bound  them- 

^  A  portion  of  the  agreement  is  omitted. 


741 

selves  that  he  should  acv.  hat 

date. 

The  evidence,  ! 
for  all  the  monc; 
received  before  ti 
c.  it  app." 
,  for  m^i 
ties  were  bour.:.!,  • 
liable  and  t'-'r  ':;r- 
■  ischer  <■ 
.r  the  s.-.: 
Make  the  avaoupi 
sent  l^-- 
But  z 


crosf - 
the  ti 
Ml'  the  pi. 
-•St,  costi-  J 
main  upon  rh 
Under  thi^ 
legations  of  : 
I  )wner  of  the 
]iis  co-defenc 
Scarlett  emp! 
iiim ;  that  pi;. 
from   one    St' 
before  the  cir. 


Compare  Sir. 


TFR\r  r  \  A'f  TiV     oi. 


b}-  the  instructions  hereto  annexed,  ;  .,\ 

Giindlach  &  Esler  from  time  to  time,  '  ii.; 

made  part  of  this  contract;  and  in  no  .  ,  ;; 

part  thereof,  to  any  person  or  persons  nor  !,.  ■ 

fectly  good  and  responsible. 

Second.    To  receive  and  tjike  good  care  o?' 

him  as  such  agent;  t^  ^ properly  stoni; 

and  charges  thereon ;  id  all  business  <_ 

same,  and  putting  t'  ssful  operation. 

raaphines  remain  un-  id  of  the  season, 

subject  to  the  order  vi  ^  &  Esler,  and  delivci 

as  good  order  as  vshen  '    when  required,  to  th -. 

authorized  agent,  free  fi  ad  all  charges  whatsoever,  e:. 

for  money  advanced  for  t       ;  .i. 

Third.  To  attend  to  selUng  said  machines  and  collecting  and  re- 
mitting all  moneys  t<.  '  -h  &  Esler  promptly  and  at  the  time  of 
each  sale. 

Fourth.    T  :  of,  or  to  the  obtaining  of  further 

secu^it^'  or.  .  ich  notes  as  are  not  paid  prompt!/ 

at  !  :■  services  herein  enumerated  the 

-  •  -.-,.--  >     pay  the  said  Fischer  ten  dollars  on 

two  dollars  on  each  rake,  and  eight  dollars  for  eacb 
(irii,  au  su;.  ■•'  ■  '  '    -        -  bove,  the  same  to  be  payable  at  the 

time  and  in  as  the  payments  are  made  on  the 

sum  to  include  the  compensation  for 
selling,  collecting,  remitting  and  put 
operation. 
.ties  hereunto  set  their  han'I?  and  scah 


ring  tne  mactimes  m 

In  testimony  wherci 
this  3d  day  of  May,  1867 


ijL -'.JL^i^.^cK  &  Esler.     v >..  .^.. . 
George  Fischer.  (L.  S.)' 


Per  Curiam. — A  fair  and  reasonable  construction  of  the  agree- 
ment makes  Fischer  the  "" Gundlach  &  Esler,  for  the  .sale  of 

machines,  until  the  first  c;  ,  1867.  And  the  appellees,  by  their 

obligation,  under  Uie  iunhful  disv  f  all  of  Fischer's 

duties  as  such  u.  :  that  he  shoulc  -for  and  ]my  all 

moneys,  notes,  etc.,  i  :ch  &  Esler.  for  'i  ;- 

chinery  received  prii  date.     It  appear  ~  lui 

that  he  received  machinery  prior  to  the  first  day  r,  1867, 

amounting  to  $2,023.92.     For  his  faithful  acco'"^  sum  his 

sureties  are  liable,  but  they  are  not  for  machine  received 

after  that  date.    The  agreement  only  contem;  '  should 

act  as  agent  up  to  that  time,  and,  hence,  the  sur^  d  them- 

A  portion  of  the  agreement  is  omitted. 


BY    TERMS    OF   AGREEMENT.  741 

selves  that  he  should  account  for  machinery  received  before  that 
date. 

The  evidence,  however,  fails  to  show  that  Fischer  has  accounted 
for  all  the  money  and  notes  received  on  the  sale  of  the  machinery 
received  before  the  first  of  October,  1867.  Even  by  Fischer's  evi- 
dence, it  appears  that  there  is  some  amount  still  due  Gundlach  & 
Esler,  for  machinery  received  within  the  period  for  which  the  sure- 
ties were  bound,  and  for  whatever  sum  that  may  be  so  due  they  are 
liable  and  the  jury  should  have  found  that  amount,  by  their  verdict. 
Fischer  does  not  pretend  that  he  had  paid  the  full  amount  received 
for  the  sale  of  machinery  so  furnished  him,  and  appellants'  witnesses 
make  the  amount  over  two  hundred  dollars,  after  deducting  the  note 
sent  him  for  collection  after  the  first  of  October,  and  all  payments. 
But  allovv'ing  him  a  credit  of  all  he  claims,  still  he  would  owe  them, 
for  which  his  sureties  would  be  liable,  at  least  $87  and  interest.  The 
evidence,  as  given  in  this  transcript,  shows  at  least  that  amount.  We 
are  clearly  of  opinion,  that  the  jury  misunderstood  the  evidence  and 
erred  in  the  finding  of  the  verdict,  and  the  court  below  should  have 
granted  a  new  trial.  The  judgment  of  the  court  below  is  reversed 
and  the  cause  remanded." 


MOORE  V.  STONE  et  al. 
1875.     Supreme  Court  of  Iowa.     40  Iowa  259. 

The  plaintifl:  brought  this  action  to  recover  the  east  half  of  the 
southeast  quarter  of  section  32,  in  township  69,  north  of  range  35 
west.     There  was  a  jury  trial  resulting  in  a  verdict  for  the  plaintiff. 

On  motion  of  the  defendants,  a  new  trial  was  granted  upon  the 
conditions  that  they  should  pay  all  the  accrued  costs,  file  an  equitable 
cross-demand  asking  to  redeem  the  land  in  controversy,  and  to  cancel 
the  treasurer's  tax  deed  to  plaintiff,  and  pay  into  court  for  the  use 
of  the  plaintiff  a  sum  equal  to  the  whole  amount  of  the  taxes,  inter- 
est, costs  and  penalty  included  in  said  tax  deed,  and  the  cause  to  re- 
main upon  the  equity  docket. 

Under  this  order  the  defendants  filed  an  answer,  denying  the  al- 
legations of  plaintiff's  petition,  alleging  that  Stone  is  the  absolute 
owner  of  the  premises ;  that  he  acquired  the  same  by  purchase  from 
his  co-defendant,  Scarlett,  in  1870;  that  in  the  summer  of  1868, 
Scarlett  employed  plaintiff'  to  purchase  the  lands  in  controversy  for 
him  ;  that  plaintiff  did  purchase  the  lands  for  him,  as  his  agent, 
from  one  Stewart,  and  received  a  warranty  deed  therefor ;  that 
before  the  completion  of  said  purchase,  and  while  the  plaintiff  was 

■  See  Danby  v.  Coutts,  L.  R.  29  Ch.  D.  500. 

Compare  Sines  v.  Superintendents  of  Wayne  Co.,  58  Mich.  503. 


742  TERMINATION    OF   AGENCY, 

acting  as  the  agent  of  Scarlett,  the  plaintiff  fraudulently  purchased 
the  land  for  "back  taxes,"  about  the  12th  of  October,  1868,  re- 
ceiving a  certificate  of  purchase  from  the  treasurer,  and  fraudulently 
concealed  such  purchase  from  said  defendant,  Scarlett ;  that  defend- 
ant, Scarlett,  depended  and  relied  upon  plaintiff  that  said  land  so 
purchased  should  be  clear  of  incumbrances,  and  that  plaintiff  so  rep- 
resented to  said  Scarlett  that  the  land  was  all  right,  when  in  fact 
plaintiff  was  concealing  a  tax  certificate  on  the  land.  The  money 
ordered  by  the  court  to  be  paid  into  court  for  the  use  of  the  plaintiff 
was  so  paid.  The  answer  prayed  for  a  cancellation  of  the  tax  deed, 
and  for  general  relief. 

The  cause  was  tried  to  the  court,  and  a  decree  rendered  for  de- 
fendants.   Plaintiff  appeals. 

Miller,  Ch.  J. — The  evidence  establishes  the  following  state  of 
facts:  In  the  month  of  June,  1868,  Mr.  Scarlett  applied  to  the  plain- 
tiff, who  was  then  a  member  of  the  banking  firm  of  Moore  & 
Mclntire,  for  the  purpose  of  buying  the  land  in  controversy,  if  they 
had  the  agency.  On  being  informed  by  plaintiff  that  they  were  not 
agents  for  the  land,  Scarlett  said  that  Horace  Everett,  of  Council 
Bluffs,  was  agent  for  the  owner  of  the  land.  Plaintiff  then  examined 
and  found  the  land  in  a  printed  list  of  lands  for  sale  by  Mr.  Everett. 
Mr.  Scarlett  desired  the  plaintiff  to  buy  the  land  for  him  at  five 
dollars  per  acre.  The  plaintiff  said  he  was  going  to  Council  Bluffs 
in  a  short  time,  and  would  see  Mr.  Everett  and  try  and  make  the 
purchase.  In  a  few  days  after  this  the  plaintiff  did  see  Mr.  Everett, 
and  bargained  for  the  land  as  Scarlett  desired  him  to  do.  About  two 
weeks  after  this,  Scarlett  again  called  at  the  banking  house  of  Moore 
&  Mclntire,  did  not  find  Moore  in,  but  Mclntire  was  there,  and 
informed  him  that  they  had  obtained  the  land  for  him.  In  a  few 
days  thereafter  Scarlett  called  again  and  paid  one-half  the  purchase 
money  for  the  land,  and  received  a  written  contract  for  a  deed  upon 
the  payment  of  the  balance.  Scarlett  then  inquired  of  plaintiff  how 
much  he  charged  for  his  services?  "He  said,  usually  $20,  but  in  this 
case  $10  would  do,"  and  Scarlett  then  paid  the  same. 

The  plaintiff  resided  in  Page  county  where  the  business  was  trans- 
acted, Scarlet  resided,  and  the  land  was  situated,  in  Taylor  county. 
Sometime  in  the  month  of  July,  1869,  a  Mr.  Farrell  called  at  the 
banking  house  of  Moore  &  Mclntire,  and  inquired  if  the  deed  to 
Scarlett  for  the  land  in  controversy  had  been  received  by  Moore  & 
Mclntire.  He  was  told  by  them  that  it  had  not.  The  deed  was 
afterwards  received,  being  sent  by  Everett  to  Moore  &  Mclntire's 
banking  house,  to  be  delivered  by  them  to  Scarlett  on  payment  of  the 
balance  of  the  purchase  money.  On  the  27th  of  August,  1869,  Far- 
rell again  called,  and  plaintiff  delivered  the  deed  to  him  on  receipt  of 
the  money  due,  which  was  remitted  to  Everett.  In  delivering  the 
deed  and  receiving  the  last  payment  on  the  land,  Moore  &  Mclntire 


any  k" 

there  were  any 
purchased  the 
certificate  at 
did  not  make 
this  tract  wa 
chased  at  1 ' 
treasurer 
pay  in: 
the  d' 
certify 
comr 
of  tlv 


lat 

Mre 
■  :ix 
-id 


chase  ■ 

ai;   l!k''   ■ 
mad' 
him  '' 
payment 
undef^-'- 
were 
and  on 
perforfiK ' 
and,  ]' 
Agevu 
This  wa^ 
Moore  & 
time  the> 
Their  ag( 
a  good  tit 


1  the  written 
ihe  one-h  ■^• 

es  for  t' 


:,ad 

on 

.  iied. 

sale  bv 

At  ^h:^'^ 


where  the  lav. 


742 


ter; 


acting  as  the  agent  of  Scarlett,  the  j; 
the  land  for  '"back  taxes,"  alsout  tli 
ceivinsr  a  certificate  of  purchase  from 


i  such  purcl ' 
ilett,  clepeni 
purraased  should  be 
resented  to  said  Sc:^; 
plaintift  was  concea! 
ordered  by  the  court 
was  so  paid.  The  a: 
and  for  general  !• 

The  cause  wa 
fendants.    Plaintiii  .ippe 

MiLLEK,  Ch.  J.— The 
facts:  In  the  month  i 
tiff,  wlv   "•"■    ■•'"" 
Mclntii 
ha.1  the    .,      . 


said  detenu., 
died  upon  ^ 
icumbrances,  aii 
•ne  land  was  a 
.  tificate  on  t^ 
'!o  court  for  tlit  ^ 
tor  a  cancellatio 

.rt,  and  a  decree  renderc 

establishes  the  following  state  of 

\  Mr.  Scarlett  applied  to  the  plain- 

f   the  banking  firm  of  Moore  & 

ag  the  land  in  controversy,  if  they 

led  by  plaintiflE  that  they  were  not 

That  Horace  Everett,  of  Council 

'.    Plaintifif  then  examined 

s  for  sale  by  Mr.  Everett. 

■     to  buy  the  land  for  him  at  five 

:  I  lie  was  going  to  Council  Bluffs 

F.verett  and  try  and  make  the 

I-  Liie  plaintiff  did  see  Mr.  Everett. 

lett  desired  him  to  do.    About  two 

led  at  the  banking  house  of  M 

in.  but  Mclntire  was  there. 
iiied  the  land  for  him.     In  a 
m  and  paid  one-half  the  puri.' 
,1  written  contract  for  a  deed  u];)oit 
lett  then  inquired  of  plaintiff  how 

"He  said,  usually  %20,  but  in  this 
hen  paid  the  same. 
j.nty  where  the  bnsipi  uis- 

'(]  was  : 


Wt' 

&  ; 

informttu  lurii  ti 
days  thereafter  ,v 
money  for  the  land,  and 
the  payment  of  the  b  -  • 
much  he  charged  for  ■ 
case  $io  would  do," 
The  plaintiff  resicK 
acted,  Scarlet  reside 
.^o-nctime  in  the  m^  1869,  a 

house  of  ^''  tire,  and  inqun 

-.  for  the  lano  -   liqd  been  '■•  -- 

Mclntire.     He  was  a:  it  ha(i 

afterwards  received,  '^t.'  -^  -«  <      r;    r.v^rett  t' 
banking  house,  to  be  delivered  by  them  to  Scar' 
balance  of  the  purch<;  y.   On  the  27th  ■ 

rell  again  called,  and  deHvered  the  de 

r!!e  money  due,  which  was  remitted  to  F 
Ct'd  and  receiving  the  last  payment  on  th- 


deed  t< 


BY    TERMS    OF    AGREEMENT.  743 

both  testify  they  were  acting  as  agents  of  Mr.  Everett,  whom  they 
charged  the  usual  collection  fee  of  one-half  of  one  per  centum. 

The  evidence  further  shows  that  neither  plaintiff  nor  Afclntire  had 
any  knowledge,  at  the  time  they  made  the  purchase  for  Scarlett,  that 
there  were  any  tax  liens  on  the  land.  The  firm  of  Moore  )&  jMcIntire 
purchased  the  land  at  tax  sale  in  October,  1868,  and  held  the  tax 
certificate  at  the  time  of  the  delivery  of  the  deed  to  Scarlett,  and 
did  not  make  the  fact  known  to  him.  In  making  such  tax  purchase 
this  tract  was  not  selected  and  purchased  by  itself,  but  was  pur- 
chased at  the  same  time  with  other  lands  as  they  were  offered  by  the 
treasurer,  regardless  of  the  ownership,  and  without  any  inquiry,  and 
paying  no  attention  to  the  numbers,  and  at  the  time  of  the  delivery  of 
the  deed  to  Scarlett,  they  had  no  knowledge  that  they  then  held  a 
certificate  for  the  purchase  of  the  land  at  tax  sale,  except  what  was 
common  to  all  persons  from  the  records.  They  then  held  certificates 
of  the  same  kind  from  ten  to  twenty  thousand  acres,  and  their  atten- 
tion was  not  particularly  called  to  this  tract,  until  after  the  treasurer's 
deed  came  into  the  hands  of  the  plaintiff. 

Upon  these  facts  it  is  quite  clear  that  the  agency  of  the  plaintiff, 
or  of  Moore  &  JMcIntire,  for  the  purchase  of  the  land  for  Scarlett, 
terminated  at  the  time  they  delivered  to  him  the  written  contract  for 
a  conveyance  of  the  land  on  the  receipt  of  the  one-half  of  the  pur- 
chase money,  and  the  payment  of  their  fees  for  the  services  per- 
formed. When  this  was  accomplished  Moore  &  IMcIntire  had  done 
all  that  they,  or  the  plaintiff,  had  been  employed  to  do.  They  had 
made  the  purchase  as  Scarlett  had  desired  them  to  do,  delivered  to 
him  the  written  contract  sent  to  them  for  Scarlett,  received  the  first 
payment  as  per  agreement.  This  completed  the  services  they  had 
undertaken.  Scarlett  himself  so  regarded  it,  for  when  these  things 
were  done  he  inquired  how  much  they  charged  him  for  their  services, 
and  on  being  informed  as  to  the  amount  he  paid  the  same.  They  had 
performed  the  business  for  which  the  agency  had  been  constituted, 
and,  by  operation  of  law,  the  agency  was  terminated.  See  Story  on 
Agency,  §  499,  and  cases  cited  ;  2  Kent's  Com.  643.  and  cases  cited. 
This  was  in  July,  1868.  The  purchase  of  the  land  at  tax  sale  by 
Moore  &  Mclntire  was  not  made  until  October  of  that  year.  At  that 
time  they  were  as  free  to  purchase  the  same  as  any  other  persons. 
Their  agency  no  longer  existed ;  they  had  not  undertaken  to  procure 
a  good  title  for  Scarlett,  nor  to  examine  the  title  for  him.  The  land 
was  situated  in  another  county  from  where  plaintiff  resided ;  nothing 
was  said  to  them  about  the  title,  and  they  might  well  suppose  that 
Scarlett,  since  he  resided  near  the  land  and  desired  to  buy  it,  had 
examined  or  procured  some  one  to  examine  the  records,  in  the  county 
where  the  lands  were  situated. 

It  is  also  quite  clear  that  the  fact  that  the  deed  to  Scarlett  was  sent 
by  Everett  to  the  banking  house  of  Moore  &  Mclntire,  for  the  pur- 
pose of  being  delivered  upon  payment  of  the  balance  of  the  purchase 


744  TERMINATION    OF   AGENCY. 

money,  did  not  operate  to  revive  the  prior  agency  for  the  purchase  of 
the  land.  In  this  transaction  Moore  &  Mclntire  acted  for,  and  as 
agents  of  the  grantor  in  the  deed.  There  is  no  evidence  that  Scarlett 
procured  the  plaintiff,  or  his  firm,  to  obtain  the  deed  for  him.  On 
the  contrary  it  was  sent  by  Everett  to  Moore  &  Mclntire  for  the  pur- 
pose of  collecting  the  balance  of  the  purchase  money  then  due.  They 
performed  that  service  for  Everett,  and  received  their  compensation 
from  him. 

It  is  equally  clear  that  the  plaintiff  was  not  guilty  of  any  fraud,  in 
failing  to  disclose  the  fact  of  the  tax  purchase  by  ]\Ioore  &  Mclntire. 
Their  relations  were  not  such  as  required  such  disclosure  to  be  made, 
especially  when  it  is  affirmatively  shown  that  they  had  no  actual 
knowledge  that  they  held  the  certificate  of  purchase  at  the  time  they 
delivered  the  deed  to  Scarlett. 

The  decree  of  the  court  below  will  be  reversed,  and  a  decree  en- 
tered for  plaintiff  in  this  court  if  he  so  elects,  or  the  cause  will  be 
remanded  for  a  decree  to  be  entered  in  conformity  with  this  opinion 
by  the  district  court. 

Reversed.^ 


Section  2. — By  Revocation  of  Authority. 

PHILLIPS  ET  AL.  V.  HOWELL. 
1878.     Supreme  Court  of  Georgia.     60  Ga.  411. 

Jackson,  J. — Mrs.  Phillips,  joining  her  husband  in  the  action, 
sued  E.  P.  Howell  for  the  recovery  of  one  thousand  dollars,  on  the 
following- receipt :  "Atlanta,  Georgia,  April  17th,  1876.  Received  of 
Mrs.  Mary  S.  Phillips,  one  thousand  dollars  for  the  purpose  of  effect- 
ing a  settlement  of  a  civil  suit  for  damages  instituted  by  Nancy  L. 
Ray  V.  W.  R.  Phillips,  Jr.,  pending  in  Fulton  superior  court — said 
suit  to  be  settled  during  the  present  term  of  said  court,  if  possible, 
and  for  the  sum  of  one  thousand,  dollars,  and  in  the  event  the  same  is 
not  settled  for  said  sum,  and  on  terms  to  her  every  way  satisfactory, 
I  am  to  return  said  one  thousand  dollars  to  said  Mrs.  Phillips,  or 
her  legal  representative.     (Signed)  E.  P.  Howell." 

Howell  pleaded  the  general  issue.  The  jury,  under  the  charge  of 
the  court,  found  for  the  defendant ;  the  plaintiff  made  a  motion  for  a 
new  trial,  it  was  refused,  and  plaintiff'  excepted. 

^Accord:  Short  v.  Millard,  68  111.  292;  Atlanta  Savings  Bank  v.  Spencer, 
107  Ga.  629. 

In  Wallace  v.  Goold,  91  111.  15.  an  agent  who  was  employed  to  secure  a  debt 
due  his  principal,  obtained  the  endorsement  of  the  debtor  to  several  notes.  It 
was  held  that  his  agency  did  not  terminate  while  he  held  the  notes  and  his 
acts  were  not  approved  by  the  principal. 


liie 

inonev  \ 

between  Hoa- 

was 

the  attoi 

Mrs 

.  Phi  Hip. ^ 

vas 

a  sort  ■■ 

money  u-;' 

the 

real 

w'hu 

to    I!: 

the  v.: 


rom  tnc 

the  1:'^^ 
Ii, 


riON    OF 


'■d  noi  operaie  lo  revive  nn-  pi. 
In  this  transaction  Moore  • 
che  grantor  in  the  deed.    The. 
die  plaintiff,  or  his  firm,  to  ^ 
V -ntrary  it  was  sent  by  Everett  to  Mooi  ■ 
•i'  'collecting- 1'--  Uv.'-i^re  of  'he  purcha^ 
1  that  s  ,  and  re^. 


,  'urcriase  oi 

tni    and  as 

i  1ett 

Ori 

ior  tile  pur- 

'!iie.    They 

cnsation 


It  is  equally  clear  t; 
failing  to  disclose  the 
Their  relations  were  v. 
especiall}'  when  it  is 
knowledge  that  they  1.' 
delivered  the  deed  to  . 

The  decree  of  t^e 
lered  for  plaintilT 


;ff  was  not  guilt: 
n:  purchase  by  M 
juired  such  disck 
shown  that  they  had 

lonte  of  rnirchape  at  tlic 


'.  in 
Lire-. 
•  dr. 


he  so  elects,  or  the  cause  will  be 
itered  in  conformity  with  this  opinion 


:,\sii  ov.t.i. 


i-AL.  V.  HOWELL. 


RT  OF  Ci 


66  Ga.  411. 


;;:,',a  i_.  i'.  iioweii  i-- 
iGlIowing-receipt :  "A 
Mrs.  Mar)-S.  Fl- 
ing a  settlement 
R^y  V.  \V.  R.  Phiiij] 
suii  io  be  settled  du' ; 
and  for  the  sum  of  or 
not  settled  for  said  s 
1  am  to  retjurn  said 
her  lepal  representative. 

Howell  pleaded  the  ge^ 
the  court,  found  for  the  <i 


■Fused, 


•r  husband  in  the  action, 

\-  01  one  thousand  dollars,  on  the 

•ia.  April  i/th,  1876.     Received  of 

>  for  the  purj'  "■':»■ 

,  .-s  instituted  •  •    1 . 

ig  in  Fulton  superior  couix — .  id 

•It  term  of  said  court,  if  pos»;IjA-. 

Jlars,  and  in  the  event  the  same  is 

11  it.rms  to  her  ev-"---  ''-■  ■   ••♦<->^}- 

>and  dollars  to  .  <  - 

• )  E.  P.  Hox'> 
,e.    The  jurv 
;  the  plaintiff  ni. 
:  ntift'  excepted. 


.-  illard,  68  111.  292 ;  Atlanta  S 


7  ua.  029. 

]v  '^'/rillari'  v.  Conld.  OT  II!.  t^.  -•'.r  nrrcnt  who 


ipt^'-Vt-d  by  tiic  pri:irip:M 


BY    REVOCATION    OF    AUTHORITY.  745 

It  appears  from  the  evidence  that  ]Mrs.  Ray  had  sued  Phillips,  a 
son  of  the  plaintiff,  for  seduction,  and  that  this  was  the  suit  to  be 
settled.  It  further  appears  that  the  case  has  never  actually  been 
settled — that  it  is  not  marked  settled  on  the  docket,  nor  has  any  of 
the  money  been  paid — that  terms  of  settlement  were  agreed  upon 
between  Howell,  who  was  the  attorney  of  Phillips,  and  Hopkins,  who 
was  the  attorney  of  Mrs.  Ray,  but  the  agreement  was  not  ratified  by 
Airs.  Phillips,  and  was  not  satisfactory  to  her,  but  Howell  felt  that  he 
was  a  sort  of  stakeholder,  and  declined  to  pay  Mrs.  Phillips  the 
money  unless  he  was  protected  by  the  judgment  of  a  court,  and  that 
the  real  contest,  deducible  from  all  the  facts,  is  between  Mrs.  Ray, 
who  wants  the  money,  and  Mrs.  Phillips,  who  is  not  satisfied  with  the 
terms  Howell  had  agreed  upon.  So  that  the  real  question  in  the  case 
is,  can  Mrs.  Phillips,  the  settlement  not  being  consummated,  and  she 
being  a  mere  volunteer,  and  having  stipulated  that  she  should  be  paid 
back  if  the  case  was  not  settled  to  her  satisfaction,  get  the  money 
back  from  Howell?  The  object  was  to  settle  the  seduction  suit,  and 
no  settlement  of  it  has  been  made,  why  she  should  not  be  permitted 
to  change  her  mind  and  get  the  money  back?  We  know  of  no  law 
to  the  contrary.  Nobody  has  been  hurt.  The  suit  is  still  pending  for 
seduction,  and  it  seems  to  us  that  Mrs.  Phillips  could  recover 
back  from  Howell  any  time  before  settlement,  at  her  option,  on 
notice  to  him,  even  if  she  had  not  prescribed  the  terms  of  the  settle- 
ment. But  she  has  prescribed  those  terms,  and  the  terms  are  among 
others  things  to  be  "in  every  way  to  her  satisfactory."  They  are  not 
to  her  satisfactory,  and  therefore,  by  the  express  words  of  the  con- 
tract, Howell  is  "to  return  said  one  thousand  dollars  to  said  Mrs. 
Phillips  or  her  legal  representative,"  and  we  cannot  see  why  she  can- 
not recover  it. 

In  this  view  of  the  case  it  is  hardly  necessary  to  consider  the  points 
made  in  the  motion  on  the  charge  of  the  court,  and  its  rulings  on  the 
evidence,  the  verdict  being  in  our  judgment  contrary  to  the  law  and 
to  the  evidence,  and  the  new  trial  being  required  on  that  ground  in 
the  motion. 

The  judgnient  being  reversed,  and  a  new  trial  awarded  on  this 
controlling  ground,  the  presumption  is  that  the  city  court  will  cor- 
rect its  other  errors,  if  any,  so  as  to  conform  to  the  judgment  of  this 
court. 

We  will  add  generally,  however,  that  the  criminal  cases  and  How- 
ell's policy  in  postponing  the  settlement  of  the  suit  for  seduction  on 
account  of  those  cases,  cannot  affect  this  case  on  this  contract :  nor 
can  any  previous  understanding  of  his  with  Judge  Plopkins  not  com- 
municated to  ]\Irs.  Phillips,  and  omitted  by  fraud,  accident  or  mistake 
from  the  contract  between  Mrs.  Phillips  and  Howell,  in  writing,  alter 
the  law  springing  from  the  writing. 

In  our  view,  the  case  does  not  make  Mr.  Howell  a  stakeholder  at 
all,  but,  for  the  purpose  for  which   3.1rs.   Phillips  turned  over  the 


746  TERMINATION    OF   AGENCY. 

money  to  him,  he  was  her  agent,  subject  to  her  control,  and  to  be 
governed  by  her  will  in  regard  to  this  money  until  the  settlement  had 
been  actually  made.  As  Mrs.  Phillips  was  a  volunteer,  and  no  con- 
sideration whatever  passed  to  her  from  Howell  or  others,  it  was  in 
her  power  to  revoke  her  authority  to  him,  and  to  take  her  money 
back  at  any  time  before  he  had  parted  with  it  in  accordance  with  the 
agreement.  15  Ga.  486,  489,  490;  55  Ga.  198;  Code,  §§  2183,  2188. 
Judgment  reversed.^ 


KOLB  V.  J.  E.  BENNETT  LAND  COMPANY. 
1896.     Supreme  Court  of  Mississippi.     74  Miss.  567. 

Calhoun,  Sp.  J. — Mr.  Kolb  signed  and  delivered  to  Mr.  Jackson, 
an  agent  of  the  land  company,  an  instrument  in  writing  in  these 
words :  "This  is  to  certify  that  I  am  owner  in  fee  of  the  following 
lands  (describing  them),  and  that  I  hereby  authorize  and  appoint 
J.  E.  Bennett  Land  Company  as  my  agents  to  sell  said  lands,  to  the 
exclusion  of  all  others,  with  the  express  understanding  that  they 
shall  have  a  commission  of  ten  per  cent,  of  the  consideration,  when 
cash  payment  is  made,  regardless  of  who  effects  the  sale,  the  follow- 
ing price  and  terms  to  govern  said  sale :  $2,425  cash ;  terms  easy. 
Deferred  payments  to  draw  interest  at  the  rate  of  eight  per  cent,  per 
annum,  payable  annually,  all  payments  to  be  made  on  or  before 

.     Said  sale  to  be  effected  within  a  period  of  January  i, 

1896.  I  further  agree  to  assist  said  J.  E.  Bennett  Land  Company  in 
selling  said  land  at  the  price  named  above,  and  to  execute  deed  and 
furnish  abstract  of  title  showing  said  land  clear  of  all  incumbrance, 
on  demand  and  in  compliance  with  the  above  terms.  In  witness 
whereof  I  have  hereunto  subscribed  my  name,  this  twelfth  day  of 
April,  1895." 

Before  January  i,  1896,  and  without  notice  to  the  land  company, 
Kolb  sold  his  lands  himself  for  $2,000,  one-third  cash  and  the  bal- 
ance on  time.  The  land  company  sued  him  for  10  per  cent,  commis- 
sions on  the  amount  paid  and  agreed  to  be  paid  Kolb  by  his  vendee. 
The  land  company  had  taken  steps  to  obtain  purchasers,  had  adver- 

'^  Accord:    Gilbert  v.  Holmes,  64  111.  548. 

"As  to  the  agent,  the  principal's  poivcr  to  revoke  is  one  thing  and  his  right 
to  revoke,  in  breach  of  the  terms  of  the  contract,  is  another,  and  such  revoca- 
tion may  subject  the  principal  to  damages  at  the  suit  of  the  agent."  Lamm,  J., 
in  Kilkpatrick  v.  Wiley,  197  Mo.  123,  167. 

"When,  indeed,  a  person  is  employed  as  an  agent,  traveler  or  salesman,  for 
no  definite  time,  the  law  does  not  imply  a  hiring  by  the  year,  but  at  the  will 
of  both  parties,  and  the  principal  has  a  right  to  terminate  it  at  any  time,  and 
to  discharge  the  agent  from  his  service  without  notice."  Sharswood,  J.,  in 
Kirk  V.  Hartman,  63  Pa.  St.  97,  105. 


.\t  the  trial 

written  contr, 

;m  in  th;. 

iiuin  $242.5^^ 

that,  before  i 


pany,  uui 
the  jury 
The  6t 


pany  ' 

atioi; 


:  unaer  > 

r  to  PI.  I    , 

sue  for  ti  z  sues  Oi 

as  if  it  were  . 
An  agent  . 
proceed,  ■ 


land  - 


any  -" 
comp;; 
Until  it  • 
nothing    , 
that,  by  it 


way  c>i  i- 

the  nTi);i- 
revu' 

l\  V I  1  1  "I  1 

land,  \vh. 
of  the  pr; 


him,  he  was  her  agent,  sudj. 
1))'  lier  will  in  regard  to  this  n- 
lily  made.    As  Mrs.  Phillips  ■ 
whatever  passed  to  her  from  n' 
to  revoke  her  atithoritv  to  him, 
V  time  befor  '  ed  with  it  m 

:.     15  Ga.  4.'-  5  Ga.  198;  ( 

e  versed.' 


i  to  be 

■1  bad 

-'  in- 

,.a^  in 

monev 


KOLB  V 


r  LAND  COMPANY 


i8c)6.     Sri' 


iississippi.    74  Miss.  567. 


an  agent 


(descri' 


anni^  ■ 

1806.     T  further 


on  demand  and  in  c( 
whereof  I  have  nerpn 
\pril,  1895." 

Before  Januuiv   1,  : 
Kolb  sold  his  lands  hi 
on  time.     The  lane  ; 
•  >n  the  amount  paid  : 
ipany  had  tai 


cd  and  delivered  to  Mr.  Jackson, 

instrument  in  writing  in  these 

m  owner  in  fee  of  the  following 

I  hereby  authorize  and  appoint 

'Hts  to  sell  said  lands,  to  the 

ss  understanding  that  they 

cent,  of  the  consideration,  when 

•  who  effects  the  sale,  the  f oUow- 

said  sale:    $2,425  cash;  terms  easy. 

•^' -it  at  the  rate  of  eight  per  cent,  per 

:ients  to  be  made  on  or  before 

1  within  a  period  of  January  i, 

;  J.  E.  Bennett  Land  Company  in 

'  above,  and  to  execute  deed  and 

lid  land  clear  of  all  incumbrance, 

Ji  the  above  terms.     In  witness 

d  my  name,  this  twelfth  day  of 

iiiout  notice  to  the  land  company, 

$2,000,  one-third  cash  and  the  bal- 

ned  him  for  10  per  cent,  conimis- 

■d  to  be  paid  Kolb  by  hU  vendee. 

to  obtain  purchp  et- 


..ut\i.    bilbert  '  48. 

10  the  agent,  .  to  revci 

"  ■ ''ach  ot  ii.c  l-'nijo  v-i  Lie  contract, 
'  the  principal  to  damasfes  at  the  > 


•\^ 


is  an  agent,  t; 


<md  the  principal  has 
'0  agent  from  his  scrv 
--tman,  63  Pa.  St.  97,  iO£ 


rcvoca- 
r;mtn,  J., 

man,  for 
,the  will 
mo,  and 

!.    T..   in 


BY    REVOCATION    OF    AUTHORITY.  747 

tised,  had  taken  persons  to  see  the  property,  and  thought  it  would 
have  effected  a  sale  to  one  of  them. 

At  the  trial  Kolb  moved  to  dismiss,  because  the  action  was  on  the 
written  contract  instead  of  being  for  damages,  and  for  want  of  juris- 
diction in  the  justice's  court,  the  plaintiff  having  reduced  the  claim 
from  $242.50,  the  contract  sum,  to  $200.  Kolb  sought  to  testify 
that,  before  he  signed  the  contract,  Jackson,  the  agent  of  the  land 
company,  told  him  it  did  not  prevent  him  (Kolb)  from  himself  sell- 
ing at  pleasure  without  commissions  in  such  case  to  the  land  com- 
pany, but  the  court  refused  to  permit  him  to  do  so,  and  finally  it  gave 
the  jury  a  peremptory  instruction  to  find  for  the  land  company. 

The  stipulations  by  Kolb  were  purely  unilateral.  The  land  com- 
pany was  not  a  party  to  the  power  of  attorney.  It  paid  no  consider- 
ation. It  entered  into  no  correlative  obligation.  If  it  had  taken  no 
step  whatever  in  the  execution  of  the  purposes  of  the  agency,  it 
would  not  have  incurred  any  liability  to  Kolb.  He  could  not  have 
sued  it  for  damages  for  non-performance.  If  it  had  obtained  a  pur- 
chaser, even  with  the  assistance  of  Kolb,  ready  and  willing  to  buy, 
then  its  rights  would  have  been  perfect  under  contract  sustained  by 
an  executed  consideration.  Under  the  agency  it  may  have  had  a 
claim  for  reimbursement  for  expenses  and  trouble  incurred  in  its 
prosecution  up  to  the  time  of  notice  of  revocation.  But  it  does  not 
sue  for  this,  and  we  do  not  decide  it.  It  sues  on  the  alleged  contract 
as  if  it  were  a  party  to  it,  and  as  if  it  were  based  on  consideration. 

An  agent  may  proceed  in  the  execution  of  such  a  power,  or  not 
proceed,  as  he  chooses,  and,  if  improperly  thwarted  by  his  principal, 
may,  in  a  proper  case,  recover  damages,  but  he  cannot  proceed  under 
the  stipulations  of  the  power  for  commissions  upon  sale  by  the  prin- 
cipal, which  was  itself  a  revocation  of  the  agency.  In  this  case  the 
land  company  brought  nobody  to  Kolb  ready  and  willing  to  buy.  It 
asked  no  assistance'  from  him  in  negotiations  with  any  probable  pur- 
chaser who  bought.  Kolb  found  his  purchaser,  and  sold  without 
any  suggestion  from  it.  The  object  of  the  power  was  that  the  land 
company  might  effect  a  sale  with  or  without  the  assistance  of  Kolb. 
Until  it  effected  this,  with  or  without  Kolb's  aid,  it  was  entitled  to 
nothing  under  the  writing  as  a  contract,  unless  because  of  the  fact 
that,  by  its  terms,  the  agency  was  exclusive  and  for  a  fixed  term,  and 
entitled  it  to  commissions  "regardless  of  who  effects  the  sale,"  for 
which  promise  on  the  part  of  Kolb  no  consideration  was  given.  One 
may,  at  pleasure,  ignore  a  nude  promise,  and  deal  with  the  subject 
of  it  as  he  sees  fit,  with  no  other  liability  save  that  for  damages  in  the 
way  of  expenses,  etc.,  incurred  in  the  prosecution  of  the  subject  of 
the  promise  before  notice  of  its  revocation.  The  object  of  notice  of 
revocation  is  to  stop  these  damages. 

Nothing  is  better  settled  in  the  law  than  that  an  authority  to  sell 
land,  when  not  coupled  with  an  interest,  may  be  revoked  at  the  will 
of  the  principal.  Am.  &  Eng.  Ency.  L.,  2d  ed.,  12 16,  and  authorities 


748  TERMINATION    OF    AGENCY. 

cited  in  note  3.  Nothing-  is  better  settled  than  that  the  phrase  "cou- 
I)led  with  an  interest"  means  an  interest  in  the  thing-  sold  (ib.,  1218, 
note  i),  or  than  that  a  commission  out  of  the  proceeds  of  a  sale  to 
be  made,  is  not  such  an  interest  (ib.,  notes  3  and  4),  and  the  sale  of 
the  property  by  the  principal  is  a  revocation  (ib.,  1219,  note  3).  It 
is  equally  well  settled  that  revocation  of  such  authority  may  be  made 
by  the  principal  at  his  own  pleasure,  though  the  terms  of  the  ap- 
pointment declare  that  it  shall  be  "exclusive"  or  "irrevocable." 
Mechem  on  Agency,  sec.  204,  and  notes  3  and  4  thereto.  All  these 
propositions  are  removed  from  debatable  territory.  They  are  based 
on  the  ground  of  want  of  consideration.  They  can  be  based  on  no 
other.  This  express  reason  is  given  by  Chief  Justice  Waite,  speak- 
ing for  the  Supreme  Court  of  the  United  States.  U.  S.  Supreme 
Court  Rep.,  vol.  125,  p.  342,  in  Walker  v.  Walker. 

In  Walker  v.  Denison,  86  111.  142,  the  power  contained  these 
clauses : 

"And  said  attorneys  are  to  account  to  me  for  one-half  of  the  net 
proceeds  derived  from  the  above  sales,  after  deducting  all  necessary 
expenses  therefrom.  And  this  power  of  attorney  is  not  revocable, 
and  cannot  be  revoked  within  two  years  from  this  date." 

The  power  was  to  sell  patent  rights  in  a  prescribed  territory.  The 
principal  sold  without  notice  of  revocation  to  the  agent.  The  court 
held  the  principal  could  do  this,  on  the  express  reason  that  "there  is 
no  undertaking  on  the  part  of  Walker  (the  agent)  in  the  instru- 
ment." 

In  Stensguard  v.  Smith,  43  Minn.  11,  the  power  was,  "In  consid- 
eration of  L.  T.  Stensguard  agreeing  to  act  as  agent  for  the  sale  of 
the  property  hereinafter  mentioned,  I  have  hereby  given  to  said  L.  T. 
Stensguard  the  exclusive  sale,  for  three  months  from  date,  the  fol- 
lowing property."  It  then  describes  the  lands  and  states  the  com- 
missions. The  agent  immediately  took  steps  to  effect  a  sale,  by  ad- 
vertising and  by  personal  solicitation  of  purchasers.  But,  in  one 
month  after  executing  the  instrument,  the  principal  himself  sold  the 
land.  Nevertheless,  the  court  sustained  the  right  of  the  principal  to 
sell,  and  said,  speaking  of  the  instrument,  "This  alone  was  no  con- 
tract, for  there  was  no  mutuality  of  obligation.  The  plaintiff  (the 
agent)  did  not  by  this  instrument  obligate  himself  to  do  anything 
and,  therefore,  the  other  party  was  not  bound,"  and  the  court  denied 
the  agent  any  compensation  whatever,  even  for  expenses ;  and  said 
further,  as  to  the  agent :  "He  can  recover  nothing  for  what  he  did 
unless  there  was  a  complete  contract,  in  which  case,  of  course,  he 
might  have  recovered  damages  for  its  breach." 

On  this  requirement  of  mutuality,  we  refer  also  to  Stier  v.  Im- 
perial Life  Ins.  Co.,  58  Fed.  Rep.  847 ;  Blackstone  v.  Buttermore,  53 
Pa.  St.  266;  Wilcox  v.  Ewing,  141  U.  S.  627;  Story  on  Agency, 
§  476;  McGregor  v.  Gardner,  14  Iowa  326;  Chambers  v.  Seay,  73 
Ala.  372. 


eration,  and  did  not  preve: 

he  saw  fit. 

The  court  errffl  iti  o-Jvi^ 
and  in  refus-r 

Reverse.']  <.. 


^ROr 


with' 


But 


an  one  as  w  t.   ue  no\v  > 
ferred  at  the  mere  wil 
benefit;  the  principal, 
agency  whenc 
upon  acting-. 


p.xV'.'i.  rr 

tain'y  •::;:: 
it.     Mr.  S 
the  revoc.i' 
pubhcly  1 


execulini', 
it  can  hard 


74^ 


cit(.'-J  i;;  !iote  3.   Nothing-  is  beiler 
pjlel.  vith  an  interest"  mea 
note  i),  or  than  that  a  commission  ou! 
■■''•  '^ade,  is  not  such  ar  ^''■• 
ioperty  by  the  p: . 
illy  well  settled 
.;  principal  at  hi, 
nent   declare   that   .1 
em  on  Agency,  sec.  .. 
propositions  are  removed  '. 
on  the  ground  of  wan»  ^^i" 
other.     This  express 
ing  for  the  Supreme  Luiv 
Court  Rep.,  vol.  125,  p.  3. 
In  Walker  v.  Denison 
clauses : 

"And  said  atto^' 
proceeds  derived 
expenses  the' 


n  in:..  . 

,.  .21^, 

ssion  ou!                                if 

a  siale  to 

♦:  {ib.,  nuiv-                         •  <' 

^-  sale  of 

a  revocation 

?>)■     It 

n  of  such  :iu 

.e  made 

re,  though  V- 

!:he  ap- 

e   "exclusive"    <:: 

...;,;,,•• 

lotes  3  and  4  tht 

'  •/.-e 

atable  territory.     Ih 

sed 

ation.     They  can  be 

n<) 

n  by  Chief  Justice  W. 

k- 

United  States.     U.  S. 

bupreme 

.;lker  V.  Walker. 

'    the  power  contained  these 

'lO  unat  1 
nient." 

In  Stensg:uard  . 
eration  of  L.  T.  Si>-i. 
the  property  hereinaft 
Stensguard  the  exclusive, 
lowing  property."     It  the 
missions.     The  agent  '• 
vertising  and  by  pers 
month  after  executing  the 
land.     Nevertheless,  the  ct 


mt  to  me  for  one-half  of  the  net 
ales,  after  deducting  all  necessary 
power  of  attorney  is  not  revocable, 
•"  ^-ears  from  this  date." 

its  in  a  prescribed  territory.     The 

e  oi  revocation  to  the  agent.     The  court 

•  this,  on  the  express  reason  that  "there  is 

part  of  Walker  (the  agent)  in  the  instru- 


.43  Minn.  11,  the  power  was,  "In  consid- 

•  ?  reeing  to  act  as  agent  for  the  sale  of 

ued,  I  have  hereby  given  to  said  L.  T. 

three  months  from  date,  the  fol- 

':s  the  lands  and  states  the  cora- 


■ook  steps  to  effect  a  sale,  by  al 

ion  of  purchasers.     But,  in  one 

nt,  the  principal  himself  s(M  the 

.aned  the  right  of  the  nr;-  :    ,1  to 

sell,  and  said,  speaking  of  the  instrument,  "This  alone  ^;v 

tract,  for  there  was  no  mutuality  of  obligation.     The  p  He 

agent)  did  not  by  this  instrument  obligate  hiniself  to  !;.; 

ar.^1  therefore,  the  oth'  not  bound,"  and  ■ '  .lonied 

rile  '.■tfciit  any  competi  ver,  even  for  exi  A  said 

fiiiMier,  as  to  the  agent:  He  can  recover  nothing  for  wimt  he  did 
unless  there  was  a  complete  contract,  in  which  c.r.e.  .if  ;.nr;^e.  he 
might  have  recovered  damages  for  its  breach." 

On  this  requirement  of  mutuality,  we  refer  ai  ..  .  ■  .  i.^.  ».  ..ii- 
perial  Life  Ins.  Co.,  58  Fed.  Rep.  847;  Blackstone  v.  Buttermore,  53 
Pa.  St.  266;  Wilcox  V.  Ewing,  141  U.  S.  627    '^  cv. 

§  476;  McGregor  v.  Gardner,  14  Iowa  326;  C'  /^ 

\la.  372. 


BY    REVOCATION    OF    AUTHORITY.  749 

It  follows  that  the  contract  in  the  case  at  bar  was  w^ithout  consid- 
eration, and  did  not  prevent  Kolb  from  dealing  with  his  property  as 
he  saw  fit. 

The  court  erred  in  giving  the  peremptory  instruction  for  plaintiff 
and  in  refusing  a  peremptory  instruction  for  defendant. 

Reversed  and  remanded.^ 


BROOKSHIRE  v.  BROOKSHIRE. 

1847.     Supreme  Court  of  North  Carolixa.     8  Ired.  74. 

Nash,  J. — It  is  not  denied  by  the  plaintifif,  that,  in  this  case,  it  was 
within  the  power  of  the  defendant  to  put  an  end  to  his  agency,  by 
revoking  his  authority.  Indeed,  this  is  a  doctrine,  so  consonant  with 
justice  and  common  sense,  that  it  requires  no  reasoning  to  prove  it. 
But  he  contends,  that  it  is  a  maxim  of  the  common  law,  that  every  in- 
strument must  be  revoked  by  one  of  equal  dignity.  It  is  true  an  in- 
strument under  seal  cannot  be  released  or  discharged  by  an  instru- 
ment not  under  seal  or  by  parol,  but  we  do  not  consider  the  rule  as 
applicable  to  the  revocation  of  powers  of  attorney,  especially  to  such 
an  one  as  we  are  now  considering.  The  authority  of  an  agent  is  con- 
ferred at  the  mere  will  of  his  principal  and  is  to  be  executed  for  his 
benefit;  the  principal,  therefore,  has  the  right  to  put  an  end  to  the 
agency  whenever  he  pleases,  and  the  agent  has  no  right  to  insist 
upon  acting,  when  the  confidence  at  first  reposed  in  him  is  with- 
drawn. In  this  case,  it  was  not  necessary  to  enable  the  plaintifif  to 
execute  his  agency,  that  his  power  should  be  under  seal ;  one  by 
parol,  or  by  writing  of  any  kind,  would  have  been  sufficient ;  it  cer- 
tainly can  not  require  more  form  to  revoke  the  power  than  to  create 
it.  Mr.  Story,  in  his  treatise  on  agency,  page  606,  lays  it  down  that 
the  revocation  of  a  power  may  be,  by  a  direct  and  formal  declaration 
publicly  made  known,  or  by  an  informal  writing,  or  by  parol;  or  it 

^  "The  mere  fact  that  the  power  of  attorney  is  itself  declared  irrevocable, 
does  not  prohibit  its  revocation."  Baldwin,  J.,  in  MacGregor  v.  Gardner,  14 
Iowa  326,  340. 

"The  power  of  attorney  also  provides  that  it  is  irrevocable ;  and  although 
this  is  not  conclusive,  it  nevertheless  tends  to  prove  that  the  parties  under- 
stood that  plaintiff  (attorney)  had  an  interest  in  the  subject-matter  upon 
which  it  was  to  operate."   Vanclief,  C,  in  Norton  v.  Whitehead,  84  Cal.  263,  270. 

The  disposal  by  the  principal  of  the  subject-matter  of  the  agency  revokes  the 
authority  of  the  agency.  Bissell  v.  Terry,  69  111.  184;  Torre  v.  Thiele,  25  La. 
Ann.  418;  Wilson  v.  Harris,  21  Mont.  374. 

"The  assignment  of  the  judgment,  notice  of  which  was  given  to  the  attorney, 
was  undoubtedly  a  revocation  of  his  authority  to  receive  the  proceeds  of  the 
execution.  If  his  principal  had  parted  with  the  right  to  control  the  judgment, 
it  can  hardly  be  questioned  that  the  power  of  the  attorney  closed  with  it." 
Caton,  C.  J.,  in  Trumbull  v.  Nicholson,  2"^  111.  148,  151. 


750  TERMINATION    OF    AGENCY. 

may  be  implied  from  circumstances,  and  he  nowhere  intimates,  nor 
do  any  of  the  authorities  we  have  looked  into,  that  when  the  power 
is  created  by  deed,  it  must  be  revoked  by  deed.  And,  as  was  before 
remarked,  the  nature  of  the  connection  between  the  principal  and  the 
agent  seems  to  be  at  war  with  such  a  principle.  It  is  stated  by  Mr. 
Story,  in  the  same  page,  that  an  agency  may  be  revoked  by  implica- 
tion, and  all  the  text-writers  lay  down  the  same  doctrine.  Thus,  if 
another  agent  is  appointed  to  execute  powers,  previously  intrusted 
to  some  other  person,  it  is  a  revocation,  in  general,  of  the  power  of 
the  latter.  For  this  proposition,  Mr.  Story  cites  Copeland  v.  The 
Mercantile  Insurance  Company,  6  Pick.  198.  In  that  case,  it  was 
decided  that  a  power,  given  to  one  Pedrick  to  sell  the  interest  of  his 
principal  in  a  vessel,  was  revoked  by  a  subsequent  letter  of  instruc- 
tion to  him  and  the  master  to  sell.  As  then,  an  agent  may  be  ap- 
pointed by  parol,  and  as  the  appointment  of  a  subsequent  agent  su- 
persedes and  revokes  the  powers  previously  granted  to  another,  it 
follows,  that  the  power  of  the  latter,  though  created  by  deed,  may  be 
revoked  by  the  principal,  by  parol.  But  the  case  in  Pickering  goes 
further.  The  case  does  not  state,  in  so  many  words,  that  the  power 
granted  to  Pedrick,  was  under  seal,  but  the  facts  set  forth  in  the 
case,  show  that  was  the  fact;  and,  if  so,  is  a  direct  authority  in  this 
case.  This  is  the  only  point  raised,  in  the  plaintiff's  bill  of  excep- 
tions, as  to  the  judge's  charge. 


AHERN  V.  BAKER. 

1885.     Supreme  Court  of  Minnesota.     34  Minn.  98. 

Vanderburgh,  J. — The  defendant,  on  the  ninth  day  of  Septem- 
ber, 1884,  specially  authorized  one  Wheeler,  as  his  agent,  to  sell  the 
real  property  in  controversy,  and  to  execute  a  contract  for  the  sale 
of  the  same.  He  in  like  manner  on  the  same  day  empowered  one 
Fairchild  to  sell  the  same  land,,  the  authority  of  the  agent  in  each 
instance  being  limited  to  the  particular  transaction  named.  On  the 
same  day,  Wheeler  effected  a  sale  of  the  land,  which  was  consum- 
mated by  a  conveyance.  Subsequently,  on  the  tenth  day  of  Septem- 
ber, Fairchild,  as  agent  for  the  defendant,  and  having  no  notice  of 
the  previous  sale  made  by  Wheeler,  also  contracted  to  sell  the  same 
land  to  this  plaintiff,  who,  upon  defendant's  refusal  to  perform  on 
his  part,  brings  this  action  for  damages  for  breach  of  the  contract. 

This  is  a  case  of  special  agency,  and  there  is  nothing  in  the  case 
going  to  show  that  the  plaintiff  would  be  estopped  from  setting  up  a 
revocation  of  the  agency  prior  to  the  sale  by  Fairchild.  A  revoca- 
tion may  be  shown  by  the  death  of  the  principal,  the  destruction  of 
the  subject-matter,  or  the  determination  of  his  estate  by  a  sale,  as 


1 ;  (ju  I    11. 
Pedrick 


I'tdrick 

That  r' 


to  r 


th£  ;asL- 


Hi;-:- 

[><■ 

d  ^" 

';■,-.-  ■ 

i  by  deed,  u 

d,  tiie  nature                    .  -^    . 

ems  to  be  at                 •  such  a 

- .  - 

■  ,  nx  the  same  pa^v.  ■;.  u  an  agencj.  iui-.  • 

tio- 

and  all  the  text-wnters  lay  down  the  sar; 

■-■.!'■■  ■ 

ihr-r   ;ji^ent    i 

tlu'  latter.     For 
Mercaiitile  Insur 
decided  that  a  p  ■ 
principal  in  a  ve 
tion  to  him  and 


in: 


bv 


Mr. 


Mr.  Siorv  cites 
-  Pick.  198.     In 
Pedrick  to  sell 
h%   ■,  =-ibsequent  .>.,..  ..;  ........ 

icn,  an  agent  may  be  ap- 

.iiiiieni  of  a  subsequent  agent  su- 

previously  frrnnted  to  another,  it 

r,  thouc: 

:.     But't 

Late,  in  so  many  words,  that  the  power 

-.■:■  '.^ni    r,nf  the  facts  .set  forth  in  the 

a  direct  authority  in  this 


BAKEl' 


Minn.  08. 


dill,  on  xnrj  ;nrii!i  oav  oi 
Wheeler,  as  his  ai^ent.  ti 
to  execi  ■ 
on  the  - 

':.e  authority  of  ihe  ageI^ 
i^''*r  transaction  naip^'''' 
die  land,  which 
"  the  tent^   ' 
and  h'd 


real  pvopcriy  m  coii' 

of  the  same.     He  in 

r  .child  to  sell  the 

iaiiance  being  limit. 

same  day,  Whe^: 

mated  by  a  convc;  .^1^ 

ber,  Fairchild,  as  ag' 

the  previous  sale  ma^ic  l. 

iand  to  this  plaintiff.,  vvli 

his  part,  brings  this  action  ior  iJainages  ioi  brt 

This  is  a  case  of  special  agency,  and  the^v; 
going  to  show  that  the  plaintiff  would  be  '.; 
revocation  of  the  agency  prior  to  the  ^-^i' 
'■■'  n  may  be  shown  by  the  death  of  tl 
"-■'   -    ---'^ "'e  determinati 


. . , rea- 
ction of 
.  sale,  as 


BY    REVOCATION    OF    AUTHORITY.  751 

well  as  by  express  notice.  The  plaintiff  had  a  right  to  employ  sev- 
eral agents,  and  the  act  of  one  in  making  a  sale  would  preclude  the 
others  without  any  notice,  unless  the  nature  of  his  contract  with 
them  required  it.  In  dealing  with  the  agent  the  plaintiff  took  the 
risk  of  the  revocation  of  his  agency.  I  Pars.  Cont.  71. 
Order  affirmed,  and  case  remanded.^ 


COPELAND  v.  MERCANTILE  INSURANCE  CO. 
1828.    Supreme  Judicial  Court  of  jNIassachusetts.    6  Pick.  198 

Morton,  J. — This  is  an  action  of  assumpsit  on  a  policy  of  insur- 
ance upon  the  brig  Joseph  for  six  months.  The  loss  within  that 
time  by  a  peril  insured  against,  and  a  reasonable  notice  and  offer  to 
abandon,  are  admitted. 

The  plaintiff  procured  the  insurance  to  be  made  in  his  own  name, 
for  whom  it  might  concern,  and  now  alleges  that  it  was  made  for  the 
account  and  benefit  of  himself  and  three  others,  each  of  whom  he 
avers  was  owner  of  one-quarter  part  at  the  time  of  the  loss  as  well 
as  at  the  date  of  the  policy. 

It  is  agreed  by  the  defendants,  that  the  several  persons  named  in 
the  declaration  were  interested  in  the  manner  alleged,  at  the  time  of 
effecting  the  insurance ;  and  the  defense  is,  that  the  plaintiff  and 
Porter  &  Greene  had  sold  their  parts  of  the  vessel  before  the  loss, 
and  at  that  time  had  no  insurable  interest  in  her. 

Before  the  loss,  John  Pedrick,  assuming  to  act  as  the  attorney  of 
the  plaintiff  and  of  Porter  &  Greene,  executed  a  bill  of  sale  purport- 
ing to  convey  their  half  of  the  vessel  to  Bright  and  Seaver,  the  own- 
ers of  the  other  half.  The  first  inquiry  will  be  whether  anything 
passed  by  this  instrument.  Pedrick's  authority  to  convey  must  have 
been  derived  either  from  the  power  of  attorney  of  the  plaintiff,  or 
from  the  letter  of  instructions  from  the  plaintiff  and  Seaver  to 
Pedrick  and  Bright  of  a  subsequent  date.  There  is  no  evidence  in 
the  case  of  any  other  authority  from  either  of  the  former  owners. 
Neither  of  these  was  executed  by  Porter  &  Greene,  and  the  act  of 
Pedrick  was  wholly  unauthorized  by  them. 

That  the  power  of  attorney,  while  in  force,  authorized  Pedrick  to 
sell  the  plaintiff's  quarter,  cannot  be  questioned.  But  the  letter  of 
instructions  subsequently  written  by  the  plaintiff  and  Seaver,  gave 
to  Pedrick  and  Bright  a  joint  authority  to  sell  the  two  quarters  of 
the  plaintiff  and  Seaver.  This  was  inconsistent  with  the  authority 
before  given  by  the  plaintiff  to  Pedrick  alone,  and  when  he  received 
the  instructions,  he  must  have  understood  them  as  a  substitute  for 

^Accord:    Clark  v.  Miillenix,  11  Ind.  532. 


752  TERMINATION    OF    AGENCY. 

the  former  authority.  They  must  therefore  be  considered  a  revoca- 
tion of  the  power  of  attorney. 

The  letter  of  instructions  conveyed  to  Pedrick  and  Bright  a  joint 
authority,  which  neither  of  them  separately  could  execute.  Co. 
Litt.  112  b,  i8i  b;  Paley  on  Principal  &  Ag-ent,  129;  First  Par.  in 
Sulton  V.  Cole,  3  Pick.  244.  The  bill  of  sale  was  therefore  unau- 
thorized. It  is  manifest,  too,  that  even  had  there  been  sufficient 
authority  in  the  agent,  it  was  not  properly  executed.  The  deed 
ought  to  have  been  in  the  name  of  principal,  instead  of  the  agent. 
It  is  not  now  the  deed  of  the  principal.  Paley,  131,  132,  133,  and 
cases  there  cited. 

This  bill  of  sale  was  therefore  ineffectual  to  pass  the  property  of 
the  plaintiff  and  Porter  &  Greene ;  unless  power  may  be  derived 
from  a  subsequent  ratification.  The  instrument  is  not  so  far  void 
as  to  be  incapable  of  becoming  effectual  by  the  adoption  of  the  prin- 
cipals and  this  ratification  may  be  by  implication  as  well  as  by  a 
direct  sanction.  The  receipt  by  the  owner,  of  the  purchase  money, 
would  necessarily  imply  a  ratification  of  the  sale ;  but  to  be  binding 
on  the  principal,  the  ratification  must  be  made  with  a  full  knowledge 
of  all  the  circumstances.  Paley,  143,  144;  Smith  v.  Cologan,  2  T.  R. 
189,  note ;  Fenn  v.  Harrison,  3  T.  R.  757. 

In  the  case  under  consideration  Pedrick  communicated  to  the 
plaintiff  the  fact  that  he  had  sold,  the  price,  and  the  names  of  pur- 
chasers, and  other  circumstances  attending  the  sale.  The  plaintiff 
expressed  no  disapprobation,  but  in  applying  for  a  renewal  of  the 
policy  for  another  term  of  six  months,  expressly  stated  that  the  brig 
was  owned  by  Seaver  and  Bright.  This  could  only  have  been  true 
in  consequence  of  his  approbation  of  the  sale  by  Pedrick.  Also, 
upon  the  receipt  of  the  bill  drawn  in  payment  for  his  quarter  of  the 
brig,  he  presented  it  for  acceptance  and  demanded  payment  of  it. 
These  acts  are  sufficient  evidence  of  a  ratification  on  the  part  of  the 
plaintiff. 

The  ratification  of  the  sale  on  the  part  of  Porter  &  Greene  does 
not  so  clearly  appear.  According  to  the  testimony  of  Pedrick,  the 
money  received  in  part  payment  for  their  quarter  was  placed  to  their 
credit  and  settled  in  their  account.  From  the  language  used  in  his 
deposition,  it  does  not  clearly  appear  that  this  settlement  was  made 
with  the  knowledge  and  assent  of  Porter  &  Greene.  They  did,  how- 
ever, upon  the  receipt  of  the  bill  drawn  for  the  remainder  of  the 
price  for  which  their  quarter  was  sold,  present  it  for  acceptance  and 
for  payment.  These  circumstances  strongly  tend  to  show,  and  per- 
haps will  warrant  the  inference,  that  they  assented  to  and  confirmed 
the  sale  on  their  part.  But  still  the  question  will  recur,  whether  this 
sale  passed  anything  to  Bright  and  Seaver.  Could  Bright,  being 
agent  to  sell,  purchase  either  for  himself  or  as  agent  for  another  ? 

It  is  a  rule  of  law  well  settled,  and  founded  in  the  clearest  princi- 
ples of  justice  and  sound  policy,  that  the  agent  of  the  seller  cannot 


l>econ:e  tnc  puicj;; 

tions  are  utterly  i: 

Mar.  Ins.  Co  . 

The  attempt  o. 

sel  was  a  breach  ot  trust  t. 

owners  of  their  inter e^^i 

Seaver  had  Rl^•c'l  ir. 
authorized 
act  of  Bri 
adopted  ii 
cured  insi 
it  might  concern,  : 
the  former  polii" 
that  row   *v-i.- 
'^''      ■  isuraiic. 
r.  as  ii 


he  had  purchased.      Fo 


the  pariK 
ratify  liis 
plaintiff  and  ' 
such  waiver 

asonabl- 
joint  pure,  -  .    ...... 

The  refu:  ver  to 

bill,  pv    ' 

to  the 

ing  ? 

TheL 

passed  n*: 

duced  no 

We  an 
case,  that 
brig,  that 
for  himseli 
never  been  so 
ers.     The  iiueic  .  ::    0 
loss  that  it  \^.   ^     ;  ti- 
the first  c 

Since  ti 
and  annu; 


the  former  autliunty.     iliey  inusl  ilic 
tion  of  the  power  of  attorney. 

The;  letter  of  instructions  conveyed  t 
n   'N.-rity,   which  neither  of   them   sej) 

112  b,  i8i  b;  Paley  un  Principal  &  .\ 

i.tou  V.  Cole,  3  Pick,  244.     The-bill  of  y...-.- 
thorized.     It  is  manifest,  too,  that  even  had 


autliority  in  the  agent,  it 
ought  to  have  been  in  tb- 
It  is  not  now  the  deci 
cases  there  cited. 

This  bill  of  sale  was  the: 
the  plaintiff  and  Pniit-  ,'; 
from  a  subsequei' 
as  to  be  incapable    1 
cipals  and  this  ratifi'. 
direct  sanctio 
wo'jid  neces*^ 


pia-.; 


properly  c 
principal,  1 
Paley, 


(iered  a  revoca- 

'  a  joint 

)••-     Co. 

Par,  in 

M'  unau- 

•ifficient 

.     Iced 

■,.,'nt. 

aid 


More  nieiiectual  to  pass  tiie  pn 
"'reene;  unless  power  may  be  ,- 

The  instrument  is  not  so  far  void 

effectual  by  the  adoption  of  the  prin- 

\x  be  by  implication  as  well  as  by  a 

■e  owner,  of  the  purchase  money, 

.  ion  of  the  sale ;  but  to  be  binding 

'  must  be  made  yvith  a  full  knowledge 

: .  ^J%  144;  Smith  V.  Cc-Iogan.  2  T.  R. 

'•  757.  . 


policy  £(/■ 

was  owm, 

in  consequence  of  h: 

upon  the  receipt  "'•'  >' 

brig,  be  presents 

These  acts  are  suiiici'.  ■ 

plaintiff. 

The  ratification  of 
not  so  clearly  appear, 
money  received  in  pai 
credit  and  settled  in  t:. 
deposition,  it  does  not  ck 
with  the  knowledge  and  a 
ever,  upon  the  receipt  of 
price  for  which  their  quar 
for  payment.     These  circ 

'  •    will  warrant  the  infer<;nce,  tliai  tlie)  assented 
■ale  on  their  part.     But  still  the  question  will  r. 
sale  passed  anything  to  Bright  and  Seaver. 
agent  to  sell,  purchase  either  for  himself  or  as  a 

It  is  a  rule  of  law  well  settled,  and  founded  '•' 
^}\ts  of  justice  and  sound  polic       >        > 


the  price,  and  the  names  of  pur- 
iitending  the  sale.  The  plaintiff 
n  applying  for  a  renewal  of  the 
hs,  expressly  stated  that  the  brig 
This  could  only  have  been  true 
ii  of  the  sale  by  Pedrick.  x\lso, 
in  payment  for  his  quarter  of  the 
.e  and  demanded  payment  of  it. 
:  ^^^  ideation  on  the  part  of  the 


ic  part  of  Porter  &  ' 
to  the  testimony  of 
•  their  quarter  was  p! 
From  the  languag 
ar  that  this  settlenie' 
orter  &  Greene.     Tl 
draw'n  for  the  rem.. 
'  '      .    .ent  it  f  - 
'v  tend  t 


v.,  Demg 
-her?  _. 
:  princi- 
cuer  cannot 


BY    REVOCATION    OF    AUTHORITY.  753 

become  the  purchaser  or  the  agent  of  the  purchaser.  These  rela- 
tions are  utterly  incompatible  with  each  other.  Paley,  32 ;  Barker  v. 
Mar.  Ins.  Co.,  2  Mason  369;  Church  v.  Mar.  Ins.  Co.,  i  Mason  341. 
The  attempt  of  Bright  to  become  the  purchaser  of  a  part  of  the  ves- 
sel was  a  breach  of  trust  on  his  part,  and  could  not  divest  the  other 
owners  of  their  interest. 

Seaver  had  given  to  Bright  no  power  to  purchase  for  him,  but  had 
authorized  and  instructed  him  with  Pedrick  to  sell  his  part.  This 
act  of  Bright  was  therefore  wholly  unauthorized.  Has  Seaver  ever 
adopted  it?  After  he  received  information  of  the  purchase,  he  pro- 
cured insurance  to  be  effected  upon  the  vessel  in  his  name  for  whom 
it  might  concern,  for  six  months,  to  commence  at  the  expiration  of 
the  former  policy.  It  does  not  appear  that  he  made  a  statement,  or 
that  any  was  made  with  his  knowledge,  of  the  names  of  the  owners. 
This  insurance  might  as  well  be  procured  by  him,  being  owner  of  a 
quarter,  as  if  he  was  owner  of  half.  Nothing  tending  to  show  a 
ratification  can  be  inferred  from  this  circumstance.  And  the  first 
opportunity  which  he  has  to  act  decisively  upon  the  subject,  he  re- 
pudiates the  contract.  Before  information  of  the  loss  of  the  vessel 
reached  him,  he  refused  to  accept  Bright's  bills  drawn  in  payment  of 
the  half  which  he  had  purchased.  To  hold  this  transfer  to  be  valid, 
would  be  to  compel  him  to  become  a  purchaser  without  his  consent. 

Notwithstanding  this  breach  of  confidence  on  the  part  of  Bright, 
the  parties  interested  might  waive  all  objection  to  his  conduct  and 
ratify  his  contract.  And  we  have  already  seen  that  the  acts  of  the 
plaintiff  and  of  Porter  &  Greene  have  a  strong  tendency  to  show 
such  waiver  and  ratification.  But  these  acts  were  founded  upon  a 
reasonable  presumption,  that  Seaver  and  Bright  were  to  become 
joint  purchasers  and  jointly  responsible  for  the  purchase  money. 
The  refusal  of  Seaver  to  adopt  the  contract  and  to  accept  Bright's 
bill,  produced  such  an  entire  change  of  circumstances  as  furnished 
to  the  plaintiff  and  to  Porter  &  Greene  sufficient  reasons  for  disavow- 
ing a  contract  which  perhaps  before  they  had  intended  to  adopt. 
The  bill  of  sale  purporting  to  be  a  joint  contract  between  the  parties 
passed  no  property  to  Bright  and  Seaver,  or  either  of  them,  and  pro- 
duced no  change  in  the  ownership  of  the  vessel. 

We  are  therefore  all  of  opinion,  upon  the  facts  disclosed  in  the 
case,  that  Pedrick  had  no  authority  to  make  sale  of  the  half  of  the 
brig,  that  Bright  had  no  legal  right  to  become  the  purchaser,  either 
for  himself  or  for  Seaver,  and  that  these  unauthorized  acts  have 
never  been  so  ratified  as  to  change  the  property  of  the  former  own- 
ers. The  interest  in  the  vessel  remained  the  same  at  the  time  of  the 
loss  that  it  was  at  the  date  of  the  policy,  and  is  correctly  stated  in 
the  first  count  in  the  plaintiff's  declaration. 

Since  the  commencement  of  the  action  Bright  ha-^  disavowed  it 
and  annulled  the  authority  of  the  plaintiff  to  prosecute  it,  so  far 
48 — Reinhard  Cases. 


754  TERMINATION    OF   AGENCY. 

as  that  authority  was  derived  from  him.  He  might  well  prohibit  the 
plaintiff  from  maintaining  the  suit  for  his  proportion  of  the  loss ; 
but  the  policy  was  in  the  name  of  the  plaintiff.  The  action  is  brought 
by  him  for  the  benefit  of  himself  and  the  other  owners ;  and  it  would 
be  manifestly  unjust  that  one  owner,  having  received  payment  for 
his  part  of  the  loss,  having  compromised  with  the  underwriters,  or 
being  unwilling  to  litigate  the  claim,  should  have  the  power  to  defeat 
the  legal  rights  of  the  others.  Bright  might  well  revoke  the  power 
which  he  had  given  to  the  plaintiff  to  prosecute  for  his  benefit,  but 
he  could  not  annul  the  authority  which  the  other  owners  had  given 
to  sue  for  them,  much  less  the  right  which  he  had  to  maintain  the 
action  in  his  own  name  for  his  own  benefit.  We  are  therefore  well 
satisfied,  that  the  plaintiff  is  entitled  to  judgment  for  his  own  quarter 
and  those  of  Seaver  and  Porter  &  Greene,  and  the  verdict  must 
be  amended  accordingly. 

After  this  opinion  was  delivered,  Fletcher  insisted  that  the  declara- 
tion was  insufficient.  The  plaintiff,  being  the  agent  in  a  joint  con- 
tract for  four,  the  action  brought  by  him  must  be  to  enforce  the 
whole  contract.  Besides,  there  is  no  count  alleging  the  interest  to  be 
in  three  only,  and  the  counts  in  which  the  whole  interest  is  averred 
to  be  in  some  one  of  the  three,  are  not  supported  by  the  evidence. 

But  Per  Curiam. — We  were  inclined  to  think  the  first  count  suffi- 
cient to  sustain  a  judgment  for  three-quarters  of  the  sum  insured ; 
that  as  it  stated  correctly  the  interest  of  all  the  parties  for  whose 
benefit  the  suit  was  originally  brought,  the  revocation  by  Bright  of 
the  authority  to  prosecute  any  further  on  his  behalf,  ought  not  to 
be  allowed  to  prejudice  the  other  parties  concerned;  but  it  is  not 
necessary  to  determine  this,  as  we  are  of  opinion  that  judgment  may 
be  rendered  for  the  plaintiff  upon  the  other  counts.^ 

"^ Accord:    Morgan  v.  Stell,  s  Binn.   (Pa.)  305. 

In  Rowe  v.  Rand,  11 1  Ind.  206,  it  was  held  that  when  two  principals  jointly 
appoint  an  agent  to  take  charge  of  some  matter  in  which  they  are  jointly  in- 
terested, and  a  severance  of  their  joint  interests  afterwards  occurs,  the  sever- 
ance revokes  the  agency. 

Revocation  by  letter  is  complete  when  the  letter  is  received  by  the  agent 
and  not  when  it  was  mailed.   Robertson  v.  Cloud,  47  Miss.  208. 

In  Rees  v.  Fellow,  97  Fed.  Rep.  167,  a  letter  revoking  an  agent's  authority 
was  addressed  to  the  agent's  place  of  business  and  delivered  there.  The  agent 
was  absent  at  the  time,  and  did  not  receive  the  letter  till  several  weeks  later. 
It  was  held  that  the  agency  was  revoked  from  the  date  of  the  delivery  of  the 
letter.    See  discussion  of  this  case  in  13  Harv.  Law  Rev.  523. 


of  a  contract  ft  ,'<: 
came  the  : 
the  term  v. 
agreed  to  work  ex 

He  was  al"^"  '   ■  '■■ 
and  relial 
sohciting  v:- •!•: 
to  be  on  thf-  }■.■■•. 
As  CO 

35  P^'' 
after  rha- 
and   m  r. 
were  i 


the  dulies  of  the  i 
March,  1872,  at  \\1 
in  IlUnois.  nr.'i  f.:ii!. 


ana  / 
there* 


for  the  di: 
on  acconi ' 
able  to  o 
the  24th  ■■ 
the  St.  Lr 
sanctionc  ' 
and  about 
its  busines-^  n 
entirely  to  tl 
24th  of  April, 

It  was  an  uii 
was  tried  bef^ 
found  for  the  ; 
eral  term  this 
appeal  to  thi? 

There  are  ]> 


754 


;ibit  the 
'le.  loss ; 


as  that  authority  was  denved  from  hi. 
plaintiti"  from  maintaining  the  suit  io 

l>ut  the  policy  was  in  the  name  of  the  pi  ri  is  brought 

ijv  him  for  the  benefit  of  himself  and  th.  nd  it  would 

be  manifestly  unjust  that  one  owner,  havi  nent  for 

his  part  of  the  loss,  having  compromi.sed  wm:  iters,  or 

being  unwilling  to  litigate  the  claim,  should  ha\  io  defeat 

the  legal  rights  of  the  ot'  'gT'it  might  well  ;  >  'wer 

which  he  had  given  to  tl  i  to  prosecute  fu,  ,  bu.f 

he  could  not  annul  the  a.  vhich  the  other  own..  iven 

to  sue  for  them,  much  It  .;ht  which  he  had  to  '  t'lc 

action  in  his  own  name  lor  h.is  own  benefit.    We  are  there 
satisfied,  that  the  plaintiff  !•-  • '    •  ''^d  to  judgment  for  his  own  .,  ■..      . 
and  those  of  Seaver  an*:  &  Greene,  and  the  verdict  must 

be  amended  accor^^ 

elivered,  Fletcher  insisted  that  the  declara- 

ihe  plaintiff,  being  the  agent  in  a  joint  con- 

vtion  brought  by  him  must  be  to  enforce  the 

les.  there  is  no  count  alleging  the  interest  to  be 

« oimts  in  which  the  whole  interest  is  averred 

ree,  are  not  supported  by  the  evidence. 

•  -e  inclined  to  think  the  first  count  suffi- 

•  r  three-quarters  of  the  sum  insured; 

f  of  all  the  parties  for  whose 

=  ;,  the  revocation  by  Bright  of 

rther  on  his  behalf,  ought  not  to 

"  parties  concerned;  but  it  is  not 

are  of  opinion  that  judgment  may 

-ii  the  other  --."-'ii^  '' 


After  this  opir 
tion  was  ins"   ' 
tract  for  f*^' 
who 

in  t; 

to  In 


the  authority  lo 
be  allowed  to  pr<  . 
necessary  to  determir. 
be  rendered  for  the  pi 


'Pa.)  305. 

-  held  that  when  two  principals  jointly 

■ic  matter  in  which  they  are  jointly,  in- 

oint  interests  afterwards  occurs,  the  sever- 


^  Accord:    Morgan  v.  ' 

In  Rowe  v.  Rand,  ii] 
appoint  an  agent  to  tak; 
terested,  and  a  severanc 
ance  revokes  the  agency. 

Revocation  by  letter  is  c^.ii.v/.n.te  when  the  letter  is  receive 
and  not  when  it  was  mailed.   Robertson  v.  Cloud,  47  Miss.  208 

In  Rees  v.  Fellow,  97  Fed.  R'.-p.  167,  a  letter  revoking  ;ii 
was  addressed  to  the  agent's  plact"  of  business  and  deliver, 
was  absent  at  the  time,  and  '"   '  ceive  the  letter  till 

It  was  held  that  the  agency  ^  J  from  the  date  of 


BY    REVOCATION    OF   AUTHORITY.  755 

LEWIS  V.  ATLAS  MUTUAL  LIFE  INS.  CO. 
1876.     Supreme  Court  of  Missouri.     6i  "Slo.  534. 

Wagner,  J. — This  was  an  action  to  recover  damages  for  breach 
of  a  contract  of  agency.  By  virtue  of  the  contract  the  plaintiff  be- 
came the  general  agent  of  the  defendant  for  the  state  of  Illinois,  for 
the  term  of  five  years.  By  the  provisions  of  the  contract  the  plaintiff 
agreed  to  work  exclusively  for  the  company  during  its  continuance. 
He  was  also  bound  to  work  the  territory  with  a  full  corps  of  energetic 
and  reliable  agents.  He  had  all  the  authority  of  a  general  agent  in 
soliciting  insurance  and  collecting  premiums.  His  remittances  were 
to  be  on  the  loth  of  each  month,  at  the  time  of  his  monthly  reports. 
As  compensation  for  his  services  and  expenditures,  he  was  to  have 
35  per  cent,  on  first  premiums,  prior  to  July  i,  1870,  and  30  per  cent, 
after  that,  10  per  cent,  on  term  insurance  and  paid  up  policies, 
and  10  per  cent,  on  all  renewals.  These  premiums  on  renewals 
were  to  be  paid  to  him  and  his  heirs  after  the  expiration  of  the  five 
years,  provided  he  continue  to  be  the  agent  of  the  company  for  that 
term,  and  performed  the  conditions  of  the  contract  required  of  him. 
He  was  also  to  have  $250  per  year,  for  rent  of  office  at  Springfield, 
Illinois.  It  is  averred  in  the  petition  that  the  plaintiff  discharged 
the  duties  of  the  contract  devolving  upon  him,  until  the  2d  day  of 
]\Iarch,  1872,  at  which  time  the  defendant  discontinued  its  business 
in  Illinois,  and  failed  and  refused  to  permit  plaintiff  to  further  prose- 
cute the  duties  as  agent  there ;  that  on  the  24th  of  April,  1872,  the 
defendant  voluntarily  sold  and  transferred  the  whole  of  its  business 
and  its  assets  to  the  St.  Louis  Mutual  Life  Insurance  Company, 
thereby  discontinuing  its  business  and  depriving  itself  of  the  power 
to  keep  and  perform  its  part  of  the  contract. 

The  answer  denies  the  breaches,  and  also  sets  out,  as  an  excuse 
for  the  discontinuance  of  its  business  in  Illinois  and  elsewhere,  that 
on  account  of  the  insufficiency  of  its  assets  and  property,  it  was  un- 
able to  comply  with  the  laws  of  Illinois  and  Missouri,  and  that  on 
the  24th  of  April,  1872.  it  caused  all  its  policies  to  be  re-insured  in 
the  St.  Louis  Mutual  Life  Insurance  Company,  and  that  the  plaintiff 
sanctioned  the  re-insurance.  The  evidence  showed  conclusively, 
and  about  that  there  is  no  question,  that  the  defendant  discontinued 
its  business  in  Illinois  on  the  2d  of  March,  1872,  and  that  it  sold  out 
entirely  to  the  St.  Louis  ]\Iutual  Life  Insurance  Company  on  the 
24th  of  April,  1872. 

It  was  an  unqualified  sale  of  all  its  property  and  rights.  The  cause 
was  tried  before  the  circuit  court  with  a  jury,  and  a  verdict  was 
found  for  the  plaintiff,  upon  which  judgment  was  rendered.  At  gen- 
eral term  this  judgment  was  reversed,  and  plaintiff  prosecuted  his 
appeal  to  this  court. 

There  are  but  two  questions  arising  on  the  record  of  any  import- 


756  TERMINATION    OF   AGENCY. 

ance,  and  the  first  is,  whether  the  insolvency  and  inabihty  of  the  com- 
pany to  carry  on  its  business,  is  any  legal  excuse  for  the  breaches  of 
the  contract ;  and  the  second  relates  to  the  measure  of  damages.  The 
court  held,  by  its  instructions,  that  the  inability  of  the  defendant  to 
continue  its  business,  was  no  excuse  for  its  breach  of  contract  with 
the  plaintiff. 

It  appeared  at  the  trial  that  the  plaintiff  was  only  permitted  to  con- 
duct his  agency  about  half  the  time  agreed  upon  by  the  stipulation. 
During  that  time  he  procured  a  large  number  of  policies  and  the  an- 
nual renewals  were  shown  to  be  very  valuable. 

It  is  now  argued  on  behalf  of  the  defendant,  that  by  the  terms  of 
the  contract  sued  on,  the  plaintiff  was  merely  appointed  agent  for  the 
company,  for  the  period  of  five  years,  and,  as  the  company  did  not 
expressly  bind  itself  to  continue  in  business  for  that  length  of  time, 
that  its  inability  to  act  and  execute  the  whole  stipulation  on  its  part, 
constituted  no  breach.  It  is  true,  there  was  no  positive  and  direct 
covenant  on  the  part  of  the  company  to  carry  on  the  business  for  any 
definite  time.  But  the  plaintiff  agreed  to  act  exclusively  for  the  com- 
pany for  the  term  of  five  years,  and  had  he  neglected  or  failed,  he 
would  have  been  liable  in  damages.  If  he  was  bound  for  that  length 
of  time,  it  necessarily  follows  that  the  company  must  also  have  been 
bound ;  for  mutuality  was  essential  to  the  validity  of  the  agreement. 

It  very  frequently  happens  that  contracts  on  their  face  and  by 
their  express  terms  appear  to  be  obligatory  on  one  party  only ;  but  in 
such  cases,  if  it  be  manifest  that  it  was  the  intention  of  the  parties, 
and  the  consideration  upon  which  one  party  assumed  an  express  obli- 
gation, that  there  should  be  a  corresponding  and  correlative  obliga- 
tion on  the  other  party,  such  corresponding  and  correlative  obliga- 
tion will  be  implied.  As,  if  the  act  to  be  done  by  the  party  binding 
himself  can  only  be  done  upon  a  corresponding  act  being  done  or 
allowed  by  the  other  party,  an  obligation  by  the  latter  to  do  or  allow 
to  be  done  the  act  or  things  necessary  for  the  completion  of  the 
contract,  will  be  necessarily  implied.  (Pordage  v.  Cole,  i  Wm. 
Saund.  319;  Churchward  v.  The  Queen,  6  B.  &  S.  807;  Black  v. 
Woodrow,  39  Md.  194.)  When  the  plaintiff  bound  himself  to  give 
his  exclusive  services  to  the  defendant  for  the  period  of  five  years, 
there  was  a  correlative  and  corresponding  obligation  upon  the  part  of 
the  defendant,  to  give  him  employment  and  allow  him  to  pursue  and 
execute  the  terms  of  the  contract.  This  was  manifestly  the  intention 
of  the  parties.  The  defendant's  insolvency  or  inability  furnished  no 
excuse  for  its  breach  of  the  contract.  Had  it  desired  to  be  exempted 
from  liability  in  such  an  event,  it  should  have  stipulated  for  the  ex- 
emption upon  the  happening  of  the  contingency.^     *     *     * 

Judgment  affirmed.^ 

^  A  portion  of  the  opinion  dealing  with  the  measure  of  damages  is  omitted. 
^  Regarding  renunciation  of  the  agency  by  the  agent  see  Stoddart  v.  Key,  62 
How.  Pr.  (N.  Y.)  137. 


FELLOWS    AND   ANOTl! 


LKKC!Ki   Llj.'    <v-. 


derailed  >-l 
The  quest' 
fact.    In  t. 

n^ert  ri  ''■ 

i.  V   <„v.\,i  ! 

'  ' 

s  are  a 

were 

under 

steamers 

its  close  in  *b 
been  . 
board 
to  pa- 


had  i- 
were  - 
and  tlv 
ants,  a 
the  spi i 
ployed  ->i 
special  au 

'o    'the  X 
during  th;! 
plies,  ft".1 
the  CO 
propo:-'. 
vi-;v,:.i:s  an 
to  boar    . 
such  c 
take  the  pay  tii' 


••R^MT>T 


'  the  first  :.-.  V, ...,  u>.vi  ,,.^ 
arry  on  its  business,  is  ai 
act;  and  the  '-':-■. 

:~\,  by  its  ins 

its  Ijusiness,  was  iiO  cx-cuse 
.•iff. 
It  appeared  at  the  trial  ' 

duct  his  agency  about  !.; 

During  that  time  he  < 

nual  renewals  were  si 
It  is  now  argiied  c- 

the  contract  sued  on, 

company,  for  the  pe  . 

texpressly  bind  itself  to  C' 

that  its. inability  to  act  an 

constituted  no  breach.     J 

covenant  on  the  ]•  '•'     *  ' 

definite  time.    B 


.  ._  ci>ni- 

iches  of 

-    The 

:•      to 

A'ith 


ge  number  <  :  ;.'i- 

ry  valuable. 

le  defendant,  tha-  >  >f 

as  merely  appointed 
cars,  and,  as  the  con; 
business  for  that  length  oi  utuc, 
the  whole  stipulation  on  its  part, 
there  was  no  positive  and  direct 
*  •  ,.,  .iiy  to  carry  on  the  business  for  any 

agreed  to  act  exclusively  for  the  com- 
md  had  he  neglected  or  failed,  he 
If  he  was  bound  for  that"  length 
•    .  must  also  have  h'    ■: 
iity  of  the  agreen.i:  i;:. 
Happens  that  contrncts  on  their  face  and  by 
:•■    r  1  I  be  obligatory  on  one  party  only  ;  but  in 
lat  it  was  the  intention  of  the  parties, 
ich  one  party  assumed  an  express  obli- 
corresponding  and  correlative  obliga- 
•       "        ind  correlative  oLl' 
,;  by  the  party  bin  , 
v-oiiespoiuiuig  act  being  done  or 
t;  tion  by  the  latter  to  do  or  allow 
y  for  the  completion  of  the 
....     (Pordage  v.  Cole,   i   Wm. 
Queen,  6  B.  &  S.  807;  Black  v 
•laintiff  bound  hir       -"*      '' 
,  tor  the  period 


gallon,  ' 

lion  on  tho  oiLici   pa 
tion  will  be  implied, 
himself  can  only  be 
allowed  by  the  other  ' 
to  be  done  the  act  - 
contract,  will  be  ne 
Saund.  319;  Church 
Woodrow,  39  Md.  194., 
his  exclusive  services  to 
there  was  a  correlativ 
the  defendant,  to  giv> 

execute  the  terms  of  the  contract,     inis  was  manin 
of  the  parties.    The  defendant's  insolvency  or  inal' 
excuse  for  its  breach  of  the  contract.    Had  it  desir. 
from  liability  in  such  an  event,  it  should  n-    -    '^^■• 
emption  upon  the  happening  of  the  contiii 
'  ■  '     .    I  '  affirmed  " 


'•■on  uc.iljiig  \Mti-!  ine  iTi' 
->n  of  the  agency  by  the 


BY    REVOCATION    OF    AUTHORITY.  757 

FELLOWS  AND  ANOTHER  V.  HARTFORD  &  NEW  YORK 
STEAMBOAT  CO. 

1871.     Supreme  Court  OF  Errors  OF  Connecticut.     38  Conn.  197. 

Seymour,  J. — This  is  an  action  of  assumpsit  on  the  common 
counts,  and  comes  before  us  by  reservation  for  our  advice  on  a  very 
detailed  statement  of  facts  found  by  the  court  of  common  pleas. 
The  questions  discussed  at  the  bar  are  mixed  questions  of  law  and 
fact.  In  order  to  a  full  understanding  of  the  case  the  entire  state- 
ment of  facts  is  needed,  and  is  as  follows : 

The  plaintiffs  are  a  co-partnership,  doing  business  in  Hartford, 
and  sold  the  goods  described  in  their  bill  of  particulars,  which  were 
delivered  by  the  plaintiffs  on  board  the  boats  of  the  defendants,  and 
were  used  thereon.  The  defendants  were  a  corporation,  organized 
under  a  charter  of  the  state  of  Connecticut,  and  engaged  in  running 
steamers  which  carried  passengers  and  freight  between  New  York 
and  Hartford.  Two  of  the  steamers  so  used  were  severallv  named 
"The  City  of  Hartford,"  and  "The  State  of  New  York."  'The  de- 
fendants had  been  so  engaged  in  business  for  several  years,  and  em- 
ploying said  boats  (among  others  which  they  were  accustomed  to 
run  on  said  route)  each  season  from  the  opening  of  navigation  till 
its  close  in  the  fall.  Prior  to  the  spring  of  1868  the  defendants  had 
been  accustomed  to  furnish  their  own  provisions  and  supplies,  to 
board  their  own  officers  and  crews  on  said  boats,  and  supply  meals 
to  passengers  thereon,  and  had  required  and  employed  stewards,  or 
persons  acting  in  that  capacity,  on  each  of  them. 

Up  to  this  time  the  president  of  the  company,  or  some  person 
specially  authorized  b}'  him,  or  under  his  direction,  had  purchased 
the  greater  part  of  the  provisions  used  on  said  boats,  but  the  stevv'ards 
had  been  allowed  to  purchase  from  time  to  time  such  supplies  as 
were  deficient,  in  the  name  of  the  defendants  and  on  their  credit, 
and  the  bills  so  made  had  always  been  paid  or  allowed  by  the  defend- 
ants, and  usually  settled  for  at  the  end  of  the  trip,  or  soon  after.  In 
the  spring  of  1867,  and  during  that  season,  the  defendants  had  em- 
ployed Mr.  Knox  as  keeper  of  their  store  of  provisions,  and  he  by 
special  authority  purchased  a  large  portion  of  the  supplies  for  pro- 
visioning the  boats,  some  of  them  of  the  plaintiffs,  who  charged  them 
to  "the  New  York  Steamboat  Company."  And  from  time  to  time 
during  that  season  the  plaintiffs  presented  their  bills  for  such  sup- 
plies, endorsed  by  Knox  as  correct,  for  payment  to  the  treasurer  of 
the  company,  who  paid  them.  In  the  spring  of  1868  the  defendants 
proposed  to  make  a  change,  by  ceasing  to  furnish  their  own  pro- 
visions and  supplies  for  their  boats,  and  to  contract  with  some  party 
to  board  the  officers  and  crew  of  each  boat  at  a  certain  price  per  week, 
such  contractor  also  to  provide  meals  and  supplies  for  passengers,  and 
take  the  pay  therefor,  and  the  defendants  advertised  in  newspapers  in 


758  TERMINATION    OF   AGENCY. 

Hartford  for  written  proposals  for  such  contracts.  None  of  the  writ- 
ten proposals  received  were  accepted,  but  the  defendants  entered  into 
a  contract  with  U.  T.  Smith,  of  Hartford,  to  board  the  officers  of  the 
''State  of  New  York"  at  $7  per  week,  and  the  crew  at  $6  per  week, 
Smith  to  have  the  right  to  supply  the  passengers  with  meals,  and  to 
have  the  use  of  the  bar  on  the  boat,  he  furnishing  his  own  supplies 
and  provisions.  The  defendants  also  made  a  contract  with  one 
Silloway,  of  Hartford,  to  board  the  officers  and  crew  of  the  "City 
of  Hartford,"  on  the  same  terms  as  Smith  had  contracted  for  the 
"State  of  New  York."  Smith  and  Silloway  each  went  on  their  re- 
spective boats,  and  accompanied  them  on  their  several  trips,  dis- 
charging the  duties  which  had  previously  been  performed  by  the 
stewards  of  the  boats,  and  severally  purchased  all  the  supplies,  and 
procured  them  to  be  delivered  upon  their  respective  boats.  Smith 
had,  for  several  years  prior  to  entering  into  the  aforesaid  contract 
for  provisioning  the  boat,  been  steward  of  the  "State  of  New  York," 
and  had  while  so  acting  made  purchases  of  the  plaintiffs  of  goods 
to  be  used  on  said  boat,  upon  the  credit  of  the  defendants,  which 
were  paid  for  by  the  defendants,  as  aforesaid.  Silloway  had  never 
been  in  the  employ  of  the  defendants  in  any  capacity.  During 
the  season  of  1868  Smith  and  Silloway  presented  to  the  defendants 
their  bills  for  the  board  of  the  officers  and  men,  which  were  paid 
in  full,  weekly.  During  the  boating  season  of  1868  Smith  procured 
of  the  plaintiffs  goods  for  which  there  remains  due  a  balance  of 
$13,  which  were  by  his  directions,  delivered  on  board  the  "State  of 
New  York,"  and  used  thereon,  and  were  charged  by  direction  of 
Smith  on  the  plaintiffs'  books  to  the  "State  of  New  York."  And 
Silloway  made  similar  purchases  of  the  plaintiffs,  which  were  by 
his  direction  charged  to  the  steamer  "City  of  Hartford,"  and  de- 
livered upon  said  boat,  and  for  which  there  is  now  a  balance  due. 
It  appeared  that  the  plaintiffs  were  not  aware  of  the  contracts  that 
had  been  made  between  the  defendants  and  Smith  and  Silloway,  and 
charged  the  goods  as  directed  supposing  they  were  selling  to  the 
Hartford  and  New  York  Steamboat  Company,  and  would  not  have 
given  credit  to  either  Smith  or  Silloway,  who  were  pecuniarily  irre- 
sponsible. The  plaintiffs  had,  the  year  previous,  by  direction  of  the 
stewards  or  other  persons  purchasing  for  the  boats,  charged  the 
goods  to  the  "New  York  Steamboat  Co."  The  defendants  did  not 
give  special  notice  to  the  plaintiffs  of  any  change  in  their  mode  of 
victualling  their  boats,  nor  did  they  advertise  the  same  in  the  news- 
papers, or  otherwise,  except  the  before-mentioned  advertisement  for 
proposals.  The  defendants  gave  no  express  authority  to  either  Sillo- 
way or  Smith  to  contract  any  bills  in  their  name,  and  had  no  knowl- 
edge that  they  had  done  so  until  after  the  bills  had  been  contracted. 
We  think  the  defendants  are  liable  for  the  goods  purchased  by 
Smith.  It  appears  that  he  had  been  their  steward,  and  had  on  their 
credit  purchased  goods  of  the  plaintiffs  to  be  used  on  the  boat,  and 


The  L 


ihorizea  to 
one  wbe'-' 
ties,  unl 

defendiiK 
differer  :c: 

I 

CO: 


liav 


auti 

^inv' 
an  'i  ■ 


trii- 

ace;  L. .: . 
years, 
drawal 
mereh    ' 
Ev- 

cepted 
notice 
short  ci 
We  n 
^oods  i; 
curred.- 


go. 


a  r' 


758 


TERMINATION    OF  AGENCY. 


Hartford  for  written  proposals  for  such  co 
ten  Is  received  were  accepted,  but  ' 

a  c«;  ith  U.  T.  Smith,  of  Hartford, 

"Stale  ui  New  York"  at  $7  per  week,  an^ 
Smith  to  have  the  right  to  supply  the  pas- 
have  the  use  of  the  bar  >m  the  boat,  he  fumi,- 
and  provisions.     The  defendants  also  made  „ 
Silloway,  of  Hartford,  to  board  the  officers  and  • 
of  Hartford,"  on  the  t^arae  terms  as  Smith  had  c.»i.: 

Smith  and  Silloway  each  wei! 
■,   them  on  their  sevc 


the  writ- 


"State  of  New  York/ 
spective  boats,  and 
charging  the  duties- 
stewards  of  the  boati>, 
procured  them  to  hie 


dc- 


treviously  been  perfwi 
lly  purchased  all  the  suj[i 
.pon  their  respective  boat 


had,  for  several  ye<'irs  prior  to  entering  into  the  aforesaid  contra' 


for  provisior^ 
and  had  w] 


in 
of 

$!■■ 

Nfc 

Smitii  on  uie  ;: 
Silloway  mad^e 
his  direction  charged  t 
livered  upon  said  boat, 
It  appeared  that  the  pla; 
had  been  made  betwe  • 
charged  the  goods  . 
Hartford*  and  New 
given  credit  to  eithc 
sponsible.   The  plair, 
stewards  or  other  {_ 
goods,  to  the  "New  Yoi 
give  special  notice  to  tl: 
victualling  their  boats,  v 
papers,  or  otherwise,  exccj 


n  steward  of  the  "State  of  New  York,' 
ie  purchases  of  the  plaintiffs  of  gooc 
lie  credit  of  the  defendants,  whic^ 
a'i  aforesaid.    Silloway  had  neve 
Us   in   any   capacity.    During 
y  presented  to  the  defendants 
■he  oriicers  and  men,  which  were  paid 
•oating  season  of  1868  Smith  procured 
>>hich  there  remains  due  a  balance  of 
iions,  delivered  on  board  the  "State  of 
m.  and  were  charged  by  direction  of 
.  the  "State  of  New  York."    And. 
of  the  plaintiffs,  which  were  by 
imer  "'City  of  Hartford,"  and  de- 
svhich  there  is  now  a  balance  due. 
re  not  aware  of  the  contracts  that 
:lants  and  Smith  and  Silloway,  and 
apposing  they  were  selling  to  the 
oat  Company,  and  would  not  have 
Uoway,  who  were  pecuniarily  irre- 
tiic  year  previous,  by  di' 
irchasing  for  the  boats. 

oat  Co."    The  defendanis  did  not 

!s  of  any  change  in  their  mode  of 

ey  advertise  the  same  in  the  news- 

!c  before-mentioned  adv^-*'    - "^  *" '•• 


proposals.  The  defendants  gave  no  express  authority  \ 

way  or  Smith  to  contract  any  bills  in  their  name,  and 

edge  that  they  had  done  so  until  after  the  bills  had  b< 

We  think  the  defendants  are  liable  for  i\u 
Smith.  It  appears  that  he  had  been  their  stew 
.  '  ftdit  purchased  goods  of  the  plaintiffs  to  be  use^ 


t^oat,  and 


BY    REVOCATION    OF    AUTHORITY.  759 

that  the  defendants  had  paid  for  the  goods  thus  purchased,  without 
objection.  The  goods,  for  the  price  of  which  this  action  is  brought, 
were  charged  to  the  defendants,  the  plaintiffs  supposing  they  were 
seUing  them  to  the  defendants,  and  credit  would  not  have  been 
given  to  Smith,  he  being  pecuniarily  irresponsible.  The  defendants 
then  had  treated  Smith  as  their  servant,  and  represented  him  as  au- 
thorized to  make  purchases  on  their  credit.  The  case  is  the  common 
one  where  the  liability  of  the  master  is  established  by  the  authori- 
ties, unless  it  can  in  some  important  particular  be  distinguished.  The 
defendants  rely  on  several  circumstances  as  sufficient  to  create  a 
difference ;  before  considering  which  we  will  briefly  notice  some 
principles  and  rules  which  have  been  adopted  in  this  class  of  cases. 

It  is  well  settled  that  where  a  general  authority  has  once  been 
conferred,  its  revocation  takes  effect  as  to  third  persons  only  after 
it  becomes  known  to  them,  unless  indeed  the  principal  has  done  his 
full  duty  in  making  it  known ;  and  where  an  authority  is  revoked, 
it  is  in  general  the  duty  of  the  principal  to  notify  those  persons  who 
have  had  dealings  with  the  agent  as  such;  the  rules  on  this  subject 
being  substantially  the  same  as  those  relating  to  the  dissolution  of 
a  co-partnership,  and  the  power  of  a  partner  after  dissolution  to  bind 
the  firm.    Story  Agency.  ^§  470,  471.    i  Parsons  Contracts,  59,  60. 

Now  in  regard  to  Smith,  it  appears  that  he  for  several  seasons  was 
authorized  to  bind  the  defendants  by  contracts  with  the  plaintiffs 
similar  to  that  on  which  this  suit  is  brought,  and  that  the  defend- 
ants have  done  nothing  to  notify  the  public  in  general,  or  these 
plaintiffs  in  particular,  of  any  revocation  of  authority,  and  that  the 
plaintiffs  were  not  in  fact  aware  of  a  revocation. 

The  defendants,  however  insist  that  there  were  circumstances 
which  ought  to  have  put  the  plaintiffs  on  inquiry,  and  it  is  certainly 
true  that  the  manner  of  dealing  under  which  the  account  in  suit 
accrued  was  somewhat  different  from  what  it  had  been  in  previous 
years.  But  we  see  nothing  at  all  equivalent  to  notice  of  the  with- 
drawal of  Smith's  authority.  The  advertisement  relied  upon  was 
merely  for  proposals  for  letting  the  stewardship  out  upon  contract. 
Even  if  the  plaintiffs  had  seen  the  advertisement,  they  could  not 
know  that  any  proposals  were  made,  or  that  if  made  they  were  ac- 
cepted or  acted  upon.  The  advertisement  was  not  intended  as  a 
notice  of  authority  withdrawn,  and  in  our  judgment  it  falls  far 
short  of  such  a  notice  as  was  necessary.^     :;:     *     * 

We  advise  that  judgment  be  rendered  for  the  plaintiffs  for  the 
goods  delivered  to  Smith.  In  this  opinion  the  other  judges  con- 
curred.- 

^  A  portion  of  the  opinion  dealing  with  the  liability  of  the  defendants  for  the 
goods  purchased  by  Silloway  is  omitted. 

""A  person  who  has  dealt  with  an  agent  in  a  matter  within  his  authority,  has 
a  right  to  assume,  if  not  otherwise  informed,  that  the  authority  continues,  and 
when  the   dealing  continues   after  the  authority  is   revoked,  the  principal   is 


760  TERMINATION    OF    AGENCY. 

Section  3. — By  Operation  of  Law. 

DAVIS,  ADMINISTRATOR  OF  WARDNER  v.  THE 
WINDSOR  SAVINGS  BANK. 

1873.     Supreme  Court  of  Vermont,     46  Vt.  728. 

PiERPONT,  Ch.  J. — The  only  question  presented  by  the  bill  of  ex- 
ceptions is,  whether  the  defendant  bank  was  justified  in  paying-  the 
money  which  it  held  to  the  credit  of  the  deceased,  to  Mrs.  Dudley, 
his  sister,  who  deposited  the  money  as  his  agent,  such  payment  being 
made  after  the  revocation  of  her  agency  by  the  death  of  her  princi- 
pal, said  bank  having  no  knowledge  of  such  death,  and  paid  the 
money  in  good  faith.  That  the  death  of  the  principal  terminates  the 
agency,  all  the  authorities  agree ;  but  the  effect  of  such  death  upon 
the  acts  of  those  who  in  good  faith  deal  with  the  agent  without 
knowledge  of  the  death,  is  a  subject  upon  which  there  is  some  di- 
versity of  decision.  But  the  weight  of  authority  seems  to  be  decid- 
edly in  favor  of  the  principle,  that  the  death  of  the  principal  instantly 
terminates  the  power  of  the  agent,  and  that  all  dealings  with  the  agent 
subsequent  to  that  event,  are  void  and  of  no  effect,  even  though  the 
parties  were  ignorant  of  that  fact.  Kent  lays  down  the  rule,  that  "the 
authority  of  an  agent  determines  by  the  death  of  his  principal.  By 
the  civil  law,  the  acts  of  an  agent  done  bona  fide  after  the  death  of 
the  principal,  and  before  notice  of  his  death,  are  valid  and  binding 
on  his  representatives.  But  this  equitable  principle  does  not  prevail 
in  the  English  law,  and  the  death  of  the  principal  is  an  instantaneous 
revocation  of  the  authority  of  the  agent,  unless  the  power  be  coupled 
with  an  interest."  2  Kent  Com.  646.  Story  lays  down  the  same 
doctrine,  and  says :  "As  the  act  of  the  agent  must,  if  done  at  all,  be 
done  in  the  name  of  the  principal,  it  is  impossible  that  it  can  prop- 
erly be  done,  since  a  dead  man  can  do  no  act,  and  we  have  already 
seen  that  every  authority  executed  for  another  person,  presupposes 
that  the  party  could  at  the  time,  by  his  personal  execution  of  it,  have 
made  the  act  valid  ;"  and  numerous  authorities,  both  English  and 
American,  are  referred  to  in  support  of  the  position.  This  principle 
was  expressly  held  in  Bank  v.  The  Estate  of  Leavenworth,  28  Vt. 
209,  and  also  in  Mich.  Ins.  Co.  v.  Leavenworth,  30  Vt.  11.  In  the 
latter  case,  Judge  Bennett,  in  delivering  the  opinion,  says : 
"Though  it  may  be  true  that  when  a  power  is  revoked  by  the  act  of 
the  party,  notice  may  be  necessary,  yet  when  revoked  by  his  death, 
the  revocation  at  once  takes  effect ;  and  if  an  act  is  subsequently  done 
under  the  power,  though  without  notice  of  the  death  of  the  party, 

nevertheless  bound,  unless  notice  of  the  revocation  is  brought  home  to  the 
other  party."  Andrews,  J.,  in  McNeilly  v.  Continental  Life  Ins.  Co.,  66  N. 
Y.  23,  28. 


of  the  rule,  but  I  c 


■i.luiiJJg  tuvj  ; 
Indeed  it  i^ 
is  no  prii'' 
terest  cot- 
discussed 
made  up. 

Judgmen,  r>:\r 


!.M-'. 


betwe 
Field 

(I  VI  est' 


priricn 


have  I 
they  1' 
loriou 
Thu>, 


iciiigau 


Weber 


TERMIN 

Section  3 — By  Operation  of  Law 


XDMINISTRATOK  Ut 

^^^^NI)soR  saving; 


]'iERPoi\i\  L-if.  j. —  i  ■  'On  preseutCi 

oeption.s  is,  whether  the  ;i;.nk  was  jusir  , 

mouev  which  it  held  to  tiic  credit  of  the  deceased,  tc. 


his  sister,  who  depositee! 
made  after  the  revocati 
pal,  said  bank  havii 
money  in  good  fail! 
agency,  all  the  ; 
the  acts  of  th'. 
knowledge 
versitv  <"■''  • 

termmaits 


■  ••   T?  his  agent,  such  p... 
iicy  by  the  death  of  ' 
■  of  such  death,  and  pc'u  \ 
i  of  the  principal  terminates  tlu: 
but  the  effect  of  such  death  upon 
jaith  deal  with  the  agent  without 
■)iect  upon-  which  there  is  some  di 
't"  of  authority  seems  to.  be  decid 
death  of  the  principal  instantly 
)Nd  that  all  dealings  with  the  agent 
i  ^nd  of  no  effect,  even  though  the 
"  lown  the  rule,  that  "the 

ill  of  his  principal.     By 
'c  done  bona  fide  after  the  death  of 
'f  his  death,  are  valid  and  binding 
equitable  principle  does  not  prevail 
-  .1,  .  --nncipal  is  an  instantaneou"^ 
nless  the  power  be  couple'. 
.  u^D.     Story  lays  down  the  same 
>i  the  agent  must,  if  done  at  all.  ^ 
is  impossible  that  it  can 
io  no  act,  and.  we  have  a 


iii< 

the  1... 

on  his 

in  the  t-i;^;l  -^M  j.'W  ,  anf 

revocation  of  the  author 

with  an  intercj-' 

doctrine,  and  sa 

done  in  the  name  oi  the  pri 

erly  be  done,  .since  a  dead  n' 

s'.en  that  every  authority  executed  for  another  person,  presu; 

that  the  party  could  at  the  time,  by  his  personal  execution  of  it,  ..av 

made  the  act  valid ;"  and  numerous  authorities,  both  Enjrlish  an 

Vnuricnn,  ,ire  referred  +  i)Ort  of  the  position.    Thi- 

was  oxiuessly  held  in  11  ^  he  Estate  of  Leavenwor. 

209,  and  also  in  Mich.  Ins.  avenworth,  30  Vt.  u. 

latter    case,    Judge    Benni:  Jelivering    the    opinion, 

'!'hough  it  may  be  true  that  when  a  power  is  revoked  by  the 
lUe  party,  notice  may  be  necessary,  yet  when  revoked  i'-  '"'^ 
the  revocation  at  once  takes  effect ;  and  if  an  act  is  sub- 
under  the  power,  though  without  notice  of  the  deati 


r,evertheles.s  bound,  unless  notice  of  the  revocation  is  V 
other  party.'"    Andrews,  J.,  in  McNeilly  v.  Continental 


BY    OPERATION    OF    LAW.  761 

the  act  is  void."  ]^Iany  other  cases  might  be  referred  to  in  support 
of  the  rule,  but  I  do  not  deem  it  necessary.^ 

A  different  doctrine  was  held  in  Cassidy  v.  McKenzie,  4  Watts  & 
Sergt.  2?>2 ;  but  as  is  said  in  a  note  to  2  Kent  Com.  873,  "It  is  sub- 
stituting the  rule  of  the  civil  for  the  rule  of  the  common  law." 

Indeed  it  is  difficult  to  see  how  there  can  be  an  agent  when  there 
is  no  principal.  The  question  whether  in  this  case  there  was  an  in- 
terest coupled  with  the  agency,  and  some  other  questions  that  were 
discussed  in  the  argument,  do  not  arise  upon  the  exceptions  as 
made  up. 

Judgment  reversed  and  cause  remanded. 


CASSIDY  V.  AI'KENZIE. 

1842.     Supreme  Court  of  Pennsylvania.     4  W.  &  S.  282. 

Rogers,  J.- —  *  *  =:=  But,  finally,  it  is  contended  that  a  pay- 
ment, after  the  death  of  the  principal,  is  not  good.  It  is  conceded 
that  the  death  of  the  principal  is  ipso  facto  a  revocation  of  a  letter 
of  attorney.  But  does  it  avoid  all  acts  of  the  attorney  intermediate 
between  the  death  of  the  principal  and  notice  of  it?  In  Salte  v. 
Field  (5  Term.  214),  Mr.  Justice  Buller  observes:  "It  has  been 
questioned  with  respect  to  an  agent  acting  under  a  power  of  at- 
torney, whether  acts  done  by  him  before  he  knows  of  the  revocation 
of  his  warrant,  are  good  against  the  principal ;  and  it  seems  that  the 
principal  in  such  case  could  not  avoid  the  acts  of  his  agent,  done 
bona  ftde,  if  they  were  to  his  disadvantage,  though  he  might  consent 
to  avoid  such  as  were  for  his  benefit."  And  in  Hazard  v.  Treadwell 
(Str.  506)  ;  12  Mod.  346,  it  is  ruled,  that  the  credit  arising  from  an 
ostensible  employment  continues  at  least  with  regard  to  those  who 
have  been  accustomed  to  deal  on  the  faith  of  that  employment  until 
they  have  notice  of  its  being  at  an  end,  or  till  its  termination  is  no- 
torious. And  these  are  principles  founded  on  most  obvious  justice. 
Thus,  if  a  man  is  the  notorious  agent  for  another  to  collect  debts, 

^  "No  principle  is  better  settled  than  that  the  powers  of  an  agent  cease  on 
the  death  of  his  principal.  If  an  act  of  agency  be  done  subsequent  to  the 
decease  of  the  principal,  though  his  death  be  unknown  to  the  agent,  the  act  is 
void."     M'Lean,  J.,  in  Gait  v.  Galloway,  4  Pet.  (U.  S.)  332,  344. 

"The  reason  of  that  rule  is,  that  upon  the  death  of  the  principal  his  estate 
belongs  to  his  heirs,  devisees,  or  creditors ;  and  their  rights  cannot  be  im- 
paired by  any  act  of  one  who  was  not  their  agent,  and  who  had  no  control 
over  their  property."  Isham,  J.,  in  ^lichigan  State  Bank  v.  Estate  of  Leaven- 
worth, 28  Vt.  209,  216. 

"There  can  be  no  agent  where  there  is  no  principal."  Danforth,  J.,  in 
Weber  v.  Bridgman,  113  N.  Y.  600,  605. 

'A  portion  of  the  opinion  is  omitted. 


762  TERMINATION    OF   AGENCY. 

it  is  but  reasonable  that  debtors  should  be  protected  in  payments  to 
the  agent  until  they  are  informed  that  the  agency  has  terminated. 
But  this,  it  is  said,  is  only  true  of  an  agency  terminated  by  express 
revocation,  and  does  not  hold,  of  an  implied  revocation  by  the  death 
of  the  principal.  It  would  puzzle  the  most  acute  man  to  give  any 
reason  why  it  should  be  a  mispayment  when  revoked  by  death,  and 
a  good  payment  when  expressly  revoked  by  the  party  in  his  lifetime. 

In  Watson  v.  King  (4  Camp.  272),  however,  it  is  ruled:  "That 
a  power  of  attorney,  though  coupled  with  an  interest,  is  instantly 
revoked  by  the  death  of  the  grantor ;  and  an  act  afterwards  bona  fide 
done  under  it  by  the  grantee  before  notice  of  the  death  of  the  grantor 
is  a  nullity.  Lord  EUenborough  says,  a  power  coupled  with  an  in- 
terest cannot  be  revoked  by  the  person  granting  it ;  but  it  is  neces- 
sarily revoked  by  his  death.  How  can  a  valid  act  be  done  in  the  name 
of  a  dead  man?"  It  will  be  observed  that  the  reason  is  purely  tech- 
nical. How  can  a  valid  act  be  done  in  the  name  of  a  dead  man? 
And  it  might  with  as  much  propriety  be  asked,  how  can  a  valid  act 
be  done  by  an  agent  whose  authority  is  revoked  by  his  principal  ? 

But,  notwithstanding  the  opinion  thus  confidently  expressed,  it  is 
now  an  admitted  exception  that  where  the  power  or  authority  is 
coupled  with  an  interest  in  the  thing  actually  vested  in  the  agent, 
then  an  act  done  by  him  after  the  death  of  his  principal  is  good. 
And  the  reason  given  by  Chief  Justice  Marshall  in  Hunt  v.  Rous- 
manier  (8  Wheat.  174),  is,  that  the  agent,  having  the  legal  title  in 
the  property,  is  capable  of  transferring  it  in  his  own  name,  not- 
withstanding the  death  of  the  principal ;  and  the  death  of  the  prin- 
cipal has  no  operation  upon  his  act.  The  power  given  by  the  prin- 
cipal is,  under  such  circumstances,  rather  an  assent  or  agreement 
that  the  agent  may  transfer  the  property  vested  in  him,  free  from 
all  equities  of  the  principal,  than  strictly  a  power  to  transfer.  The 
whole  reasoning  of  the  court,  in  Hunt  v.  Rousmanier,  shows  their 
anxiety  to  rid  themselves  of  the  absurdity  into  which  a  strict  adher- 
ence to  the  principle  that  death  is  a  revocation  of  a  power,  would 
lead  them.  Why  not  place  it  on  the  rational  ground,  that  although 
the  conveyance  would  be  bad  at. law,  yet  it  would  be  good  in  equity 
when  made  bona  fide  without  any  notice  whatever  of  the  death  of 
the  principal.  But  be  this  as  it  may,  the  principle  does  not  apply 
here.  There  is  no  act  to  be  done.  This  money  has  been  paid  by  the 
debtor,  and  received  by  the  agent  in  good  faith ;  and  why  should 
it  not  be  good  when  the  authority  is  revoked  by  death,  as  it  con- 
fessedly is  when  expressly  revoked  by  the  principal  in  his  lifetime? 
Here  the  precise  point  is,  whether  a  payment  to  an  agent  when  the 
parties  are  ignorant  of  the  death  is  a  good  payment.  In  addition  to 
the  case  in  Campbell  before  cited,  the  same  judge,  Lord  Ellen- 
borough,  had  decided  in  5  Esp.  117,  the  general  question  that  a  pay- 
ment after  the  death  of  principal  is  not  good.  Thus,  a  payment  of 
sailor's  wages  to  a  person  having  a  power  of  attorney  to  receive 


them,  has  been  lield 

of  payment.   If,  by  i 

eral  proposition  that 

a  revocation  of  the  p  . .  . .  ^ 

it.  But  if  it  is  intended  to  sa\ 

was  no  r--—   -f  death,     ■ 

mitted  i-  from  ir 

In  ad' : 
Tate  V. 
given  I) 
time.  . 

he  .  received  th<: 

'' •  .1  the  testate) 

->  inclined  to  thi; 
;l  ir.,.ji  tviji- 
made  to  «" 
But,  i  — 


and  tr. 


ample,  has  it  be^ 

[i  I : •:- 1  i  (.  \  L;c:iiion  of  author  ' 

have  occurred"  and  it  woi 

formed  that  thi; 

of  his  principal  i 

ant,  and  of  which  i.. 

that  till-  Li.Tt 'v  i-v   .. 

prii, 

soU 

froi 


rec 

to-! 

cip„ 
laiow 
In  the 

of  t!- 
h.-  ■ 


coi ' 
trial. 


a.  IS  but  reasonable  that  debtors  slioul' 
The  agent  until  they  are  informed  tha^ 
But  this,  it  is  said,  is  only  true  of  an  < 
revocation,  and  does  not  hold,  of  an  inij  ... 
of  the  principal.    It  would  puzzle  the  mos 


lents  to 
iinated. 


;ith 
inv 


hy  it  should 
.ivment  when 
la  V\  atson  v.  King 
a  power  of  attorney, 
revoked  by  the  death  ■ 
done  under  it  by  ^^'-i:' 
is  a  nullity.   Lori' 
terest  cannot  be  -> 
sarily  revoked  by 
of  a  dead  man?"   it  . 
nical.    How  can  a  v 
And  it  might  wit' 
be   loric  b\  an  ■?.  : 


iiia.! 

the 

cipal  is,  under  such 
that  the  agent  may  i 
all  equities  of  the  pr 
whole  reasoning  of  t 
anxiety  to  rid  themst 
ence  to  the  principle 
lead  them.    Why-  not 
the  conveyance  wouL 
when  made  bona  Me  •<.'.. 
the  principal.    But  be  thi? 
is  no  act  to  ■ 
tcceived  by 
it  not  be  good  when  the 


■     "-  nient  when  v  .ncl 

■  oked  by  the  -. 

i_4  Caiijp.  2y2),  however,  ii  :    "ihat 

thoT.gh  ry-npled  with  an  intv  nstantly 

:  ;  and  an  act  aft*. .  ,';./(' 

notice  of  the  dealt;  '.ii.r 

^ys,  a  power  coupled  ti- 

■  rson  granting  it;  bui  n  i.^  ^.^ces- 
an  a  valid  act  be  done  in  the  name 
ed  that  the  reason  is  purely  tech- 
ne  in  the  name  of  a  dead  man? 
oty  be  asked,  how  can  a  valid  act 
!  ty  is  revoked  by  his  principal  ? 
e  opinion  thus  confidently  expressed,  it  is 
,M.ion  that  where  the  power  or  authority  is 
.est  in  the  thing  actually  vested  in  the  agent, 
.  '  .r  the  death  of  his  principal  is  good. 
f  ruf;tice  Marshall  in  Hunt  v.  Rous- 
■rcnt.  having  the  legal  title  in 
.  ig  it  in  his  own  name,  not- 
principal;  and  the  death  of  the  prin- 
15  act.   The  power  given  by  the  prin- 
mces,  rather  an  assent  or  agreemenv 
nroperty  vested  in  him,  free  fror  ■ 
strictly  a  power  to  transfer.     !  :• 
Munt  V.  Rousmanier,  shows  tlv_ 
surdit^'  into  which  a  strict  nd'    • 
ation  of  a  powe 

_:.  I  .lal  ground,  thai 

at  iaw,  yet  it  would  be  g 
'ui.  any  notice  whatever  of  n.v     .,<- l. 
as  it  may,  the  principle  does  not  aiS' 
Tliis  money  has  ' 
!  in  good  faith  : 
.   is  revoked  by  dcaLJi,  ^ 
(1  by  the  princip'i'  "n  '"■"-" 


fessedly  is  when  express; 
Here  the  precise  point  is,  whether  a  payment 
parties  are  ignorant  of  the  death  is  a  good  '  - 
the  case  in  Campbell  before  cited,  the 
borough,  had  decided  in  5  Esp.  117,  the  g- 
'^■«<^nt  after  the  death  of  principal  is  not  r 
wages  to  a  person  having  a 


BY    OPERATION    OF   LAW.  763 

them,  has  been  held  void  when  the  principal  was  dead  at  the  time 
of  payment.  If,  by  this  case,  it  is  meant  merely  to  decide  the  gen- 
eral proposition  that  by  operation  of  law  the  death  of  the  principal  is 
a  revocation  of  the  powers  of  attorney,  no  objection  can  be  taken  to 
it.  But  if  it  is  intended  to  say  that  this  principle  applies  where  there 
was  no  notice  of  death,  or  opportunity  of  notice,  I  must  be  per- 
mitted to  dissent  from  it. 

In  addition,  it  is  contrary  to  the  opinion  of  Lord  Loughborough  in 
Tate  V.  Hilbert  (2  Yez.  Jun.),  where,  on  a  question  whether  a  check 
given  by  a  dying  person  to  a  relation,  but  not  presented  in  his  life- 
time, could  be  enforced  as  donatio  causa  mortis  against  the  executor, 
he  said,  if  the  donee  had  received  the  money  upon  the  check  imme- 
diately after  the  death  of  the  testator,  and  before  the  cashier  was 
apprised  of  it,  he  was  inclined  to  think  no  court  would  have  taken 
it  from  him.  And  what  would  he  have  said  if  the  attempt  had  been 
made  to  subject  the  banker,  when  he  was  ignorant  of  the  death? 
But,  if  this  doctrine  applies,  why  does  it  not  apply  to  the  case  of 
factors,  foreign  or  domestic,  to  commission  merchants,  to  super- 
cargoes, and  masters  of  ships,  and  to  various  other  agencies  which 
the  necessities  of  commerce  may  require.  In  the  case  of  a  foreign 
factor,  for  example,  has  it  been  supposed  that  his  acts,  after  this  im- 
plied revocation  of  authority  are  void  ?  Cases  of  this  kind  must  often 
have  occurred  and  it  would  astonish  the  mercantile  world  to  be  in- 
formed that  the  factor  was  liable  on  a  contract  made  in  the  name 
of  his  principal  because  he  was  dead,  a  fact  of  which  he  was  ignor- 
ant, and  of  which  he  could  not  by  any  possibility  be  informed,  or 
that  the  merchant  who  was  trusting  his  goods  on  the  credit  of  the 
principal  was  to  be  cast  on  him  who  may  have  been  of  doubtful 
solvency,  for  payment.  Can  it  be,  that  a  payment  made  to  an  agent 
from  a  foreign  country,  and  from  one  of  our  cities  to  the  Western 
States,  employed  for  the  special  purpose  of  collecting  debts,  is  void 
because  his  principal  may  have  died  the  very  day  before  the  actual 
receipt  of  the  money?  That  a  payment  may  be  good  to-day  or  bad 
to-morrow  from  the  accidental  circumstance  of  the  death  of  the  prin- 
cipal, which  he  did  not  know,  and  which  by  no  possibility  could  he 
know?  It  would  be  unjust  to  the  agent  and  unjust  to  the  debtor. 
In  the  civil  law,  the  acts  of  the  agent,  done  bona  fide  in  ignorance 
of  the  death  of  his  principal,  are  held  valid  and  binding  upon  the 
heirs  of  the  latter.  The  same  rule  holds  in  the  Scottish  law,  and  I 
cannot  believe  the  common  law  is  so  unreasonable,  notwithstanding 
the  doubts  expressed  by  Chancellor  Kent  in  the  second  volume  of  his 
Commentaries  646. 

These  principles  dispose  of  all  that  will  be  material  on  another 
trial. 

Judgment  reversed,  and  a  venire  de  novo  awarded.^ 

*  "Where  the  act,  notwithstanding  the  death  of  the  principal,  can  and  may  be 


764  TERMINATION    OF    AGENCY. 

CARRIGER'S  ADMINISTRATOR  v.  WHITTINGTON'S 
ADMINISTR.\TOR. 

1858.     Supreme  Court  of  Missouri.     26  Mo.  311. 

This  was  an  action  by  the  administrator  of  Christian  Carriger  to 
recover  certain  sums  of  money  alleged  to  have  been  received  by 
William  W.  Whittington,  defendant's  intestate,  as  the  agent  of  said 
Carriger.  Evidence  was  introduced  that  in  1846  said  Carriger  had 
a  pre-emption  claim ;  that  he  went  to  California  leaving  Whitting- 
ton his  agent ;  that  he  received  the  rents  accruing,  and  also  sold  the 
claim  to  one  De  Witt ;  that  he  received  in  1847  fifty  dollars  for  rent 
of  this  land;  in  1848  twenty  dollars;  that  in  1850  he  received  from 
De  Witt  five  hundred  dollars,  the  purchase  money  agreed  to  be  paid 
for  the  pre-emption  claim ;  that  Carriger  died  in  1846  on  the  way  to 
California.  It  did  not  appear  that  his  death  was  known  to  Whit- 
tington and  De  Witt  at  the  time  of  the  sale.  The  court  instructed 
the  jury  as  follows:  "If  the  jury  believe  from  the  evidence  that 
William  Whittington,  as  the  agent  of  Christian  Carriger,  received 
of  Nefif,  in  the  spring  of  1847,  fifty  dollars,  and  in  the  spring  of 
1848,  of  P'atton,  twenty  dollars,  and  in  the  spring  of  1850,  of  De 
Witt,  five  hundred  dollars,  with  interest,  for  the  price  of  Carriger's 
farm,  and  that  the  plaintifif,  Charles  F.  Holly,  as  public  adminis- 
trator of  Andrew  county,  has  charge  of  said  Carriger's  estate,  they 
will  find  for  the  plaintiff  the  amount  so  received  by  said  Whit- 
tington." 

The  court  refused  the  following  instructions,  among  others,  asked 
by  defendant:  "i.  Unless  the  jury  believe  from  the  evidence  that 
Christian  Carriger  was  alive  at  the  time  William  Whittington  made 
the  sale  and  received  the  money  in  evidence,  they  will  find  for  de- 
done  in  the  name  of  the  agent,  there  seems  to  be  a  sound  reason  why  his  death 
should  not  be  deemed  to  be  a  positive  revocation  under  all  circumstances,  and 
that  a  subsequent  execution  of  it  may  be  valid."  Story  on  Agency,  §  495.  This 
statement  has  the  basis  of  decision  in  Dick  v.  Page,  17  Mo.  234,  and  Lenz  v. 
Brown,  41  Wis.  172. 

See  the  able  and  elaborate  discussion  of  the  various  views  and  authorities 
on  the  subject  of  revocation  by  death  in  Ish  v.  Crane,  8  Ohio  St.  520,  and  13 
Ohio  St.  574.  On  page  540  of  8  Ohio  St.  Sutlifif,  J.,  says :  "Now  upon  what 
principle  does  the  obligation,  imposed  by  the  acts  of  the  agent  after  his  au- 
thority has  terminated,  really  rest?  It  seems  to  me  the  true  answer  is,  public 
policy.  The  great  and  practical  purposes  and  interests  of  trade  and  com- 
merce, and  the  imperious  necessity  of  confidence  in  the  social  and  commer- 
cial relations  of  men,  require  that  an  agency,  when  constituted,  should  con- 
tinue to  be  duly  accredited.  To  secure  this  confidence,  and  consequent  facility 
and  aid  to  the  purposes  and  interests  of  commerce,  it  is  admitted  that  an 
agency,  in  cases  of  actual  revocation,  is  still  to  be  regarded  as  continuing,  in 
such  cases  as  the  present,  toward  third  persons,  until  actual  or  implied  notice 
of  the  revocation.  And  I  admit  that  I  can  perceive  no  reason  why  the  rule 
should  be  held  differently  in  cases  of  revocation  by  mere  operation  of  law." 
Quoted  with  approval  in  Deweese  v.  Muff,  57  Neb.  17,  and  Meinhardt  v.  New- 
man, 71  Neb.  532.    See  note  in  12  Harv.  Law  Rev.  563. 


money  was  derr 


6.    If  tn 

ized  Wil  ; 

the  land  n;e:  evidence,  t 

said  Whi^-'''  •^"'  further  a.  , 

if  he  wa-  'me  of  said  - 

the  :'     ' 

does  not  ^r»pear  in 

of  tt  :ie  pr-e-c 

deal  i'dpal,  C 

c  that  at  tl 


his  hein, 
equitabli^ 
merce  av: 


no  c 
prin 


sen  I. 


170. 


CARRIGliR'S  AD. 


N'S 


;^-;S.     Supreme  Coi^i^t  ny  ■Missout 


1  action  ' 
r.  r  • .  er  certain  sums  ' 
\\  i;'-p.n  \V    Whittingl. 
ience  w." 
ti  jM t  citii^iin-'ii  claim;  t, 
ton  his  agent;  that  he  • 
claim  to  one  De  W 
of  this  land  ■  in  t^ 
De  Witt  fi- 
for  ilie  prr 

nia.    it 
,...,,^,i-.,a  an']  T" 
the  jury  <• 
William  \ 
.;.r  Neff,  i. 


-,v;'l    u 


geU   Lo  lia\  '   ■ 

s  intestate,  :  ! 

that  in' 184/ 
,,;.  ("■-jlifornia  ..,; 

ruing,  a  I  e 

■i.U  in    1847  fifty  aou:.  it 

that  in  1850  he  rec  -Jt 

rchase  money  agreed  to  be  paid 

.  iger  died  in  1846  on  the  way  to 

iiat  his  death  was  known  to  Whit- 

e  of  the  sale.   The  court  instructed 

Liry  believe  from  the  evidence  that 

;ent  of  Christian  Carriger,  received 

fifty  dollars,  and  in  the  spring  of 

■     the  spring  of  1850,  of  De 

for  the  price  of  Carriger's 

Holly,  as  public  adminis- 

■   said  Ci^rri-'^r'-   <:>i:i'v.  lliev 


by  ucieaaaut ■ 
Christian  Can 


he 

able  ar 

d  elaborate  > 

■■'■■ct  of 

revr-r-^''^^ 

.,,   :-. 

pi-.. 

*li/-  -  If,,     'n  -, 

..    On 

.  -^  ill, 

pa; 

1  ■  :'    '    .         'I 

: 

■  oa^ 

ncci 

fpfi 

lire 

ag  instructions,  among  others,  asked 
believe  from  th         '  '       e  that 
'ime  Willi ^'n  Wi  made 

evidenci  iil  lind  for  de 

.  to  be  a  soLiuU  ioason  why  his  death , 
•cation  under  all  circumstances,  and 
"  '  "   Storj'  on  Agency,  §  495-    i'hj.s 
Page,  17  Mo.  234,  and  Lenz  •■■. 

lous  views  and  authoriti  - 
,.  .  -  .aae,  8  Ohi.^  '"-  ='■,■  ■-,,■  , 
Suthtl,  J.,  says:  .■< 

*h-   aclr-  uf  the  a-  : 


)^C    111    li' 

when   r. 


ocation  by  n'- 
■      ■  ^  -   *W  57  Ncl:..  ;-.     ■ 

532.   See  note  in  la  Harv.  Law  : 


BY    OPERATION    OF    LAW.  765 

fendant.  2.  If  the  said  William  Whittington  was  the  agent  of  Chris- 
tian Carriger,  deceased,  and  received  the  money  in  evidence  as  such 
agent,  then  the  jury  will  find  for  the  defendant,  unless  the  plaintiff 
has  proved  that  said  money  was  demanded  before  the  commence- 
ment of  this  suit.  5.  If  more  than  five  years  have  elapsed  since  said 
money  was  received  and  before  suit,  they  will  find  for  defendant. 
6.  If  the  jury  find  from  the  evidence  that  Carriger  merely  author- 
ized William  W.  Whittington  to  sell  for  him,  the  said  Carriger, 
the  land  mentioned  in  evidence,  then  so  soon  as  said  Carriger  died 
said  Whittington  had  no  further  authority  to  act  as  such  agent ;  and 
if  he  was  so  dead  at  the  time  of  said  sale  then  the  jury  will  find  for 
the  defendant." 

Napton,  J. — It  does  not  appear  in  this  case  whether  at  the  time 
of  the  sale  of  the  pre-emption  by  Whittington  to  De  Witt  the 
death  of  the  principal,  Carriger,  was  known  to  the  parties  or  not. 
It  is  inferable  that  at  the  time  of  the  payment  of  the  purchase 
money  to  the  agent,  in  1850,  Carriger's  death  was  known  to  both 
parties.  It  is  probable  that  when  the  contract  was  made  in  1847, 
Carriger's  death,  which  took  place  in  the  previous  summer  on  his 
way  to  California,  was  not  known  to  either. 

Although  by  the  common  law  an  agency  terminated  by  the  death 
of  the  principal,  and  all  subsequent  acts  of  the  agent  cease  to  bind 
his  heirs  or  executors,  yet  judicial  tribunals,  especially  those  having 
equitable  jurisdiction,  have,  for  the  convenience  of  trade  and  com- 
merce and  in  accordance  with  the  principals  of  natural  justice,  very 
much  modified  this  doctrine.  When  the  death  of  the  principal  is  un- 
known to  both  parties  at  the  time  the  contract  is  made,  so  that  there 
is  no  binding  contract  on  him  or  his  representatives,  the  agent  is  not 
personally  responsible.  (Smout  v.  Ilbery,  10  Mees.  &  Wels.  i  ;  Story 
on  Agency,  §  265;  Blader  v.  Free,  9  Barn.  &  Cress.  167.)  In  Cas- 
siday  v.  McKenzie,  4  Watts  &  Serg.  282,  the  supreme  court  of 
Pennsylvania  declared  in  good  sense  and  sound  reason  there  was 
no  difference  between  a  revocation  of  an  agency  by  the  act  of  the 
principal  and  2i.  revocation  by  his  death,  which  was  the  act  of  God, 
and  that  in  either  case,  where  the  parties  dealing  were  acting  in 
good  faith  and  ignorant  of  the  revocation,  the  principal  or  his  repre- 
sentatives ought  to  be  bound.  In  neither  case  did  the  court  suppose 
the  agent  would  be ;  and  they  repudiate  the  opinion  of  Lord  Ellen- 
borough,  in  Watson  v.  King,  4  Camp.  5  Esp.  117,  and  of  Lord 
Loughborough,  in  Tate  v.  Hilbert,  2  Ves.  Jr.  — ,  where  a  power 
of  attorney,  though  coupled  with  an  interest,  was  held  to  be  in- 
stantly revoked  by  the  death  of  the  grantor.^  *  *  *  ^he  other 
judges  concurring,  judgment  affirmed. - 

*  A  portion  of  the  opinion  is  omitted. 

^  Death  of  the  agent  terminates  the  agency.  Adriance  v.  Rutherford,  57  Mich. 
170. 

In  Jackson  Insurance  Co.  v.  Partee,  9  Heisk.   (Tenn.)  296,  a  factor  trans- 


766  TERMINATION    OF    AGENCY. 

DAVIS  V.  LANE. 
1839.     Superior  Court  of  New  Hampshire.     10  N.  H.  156. 

Assumpsit,  upon  a  promissor)-  note. 

It  appeared  in  evidence  that  Foss,  the  plaintiff's  intestate,  for 
some  time  previous  to  his  death,  which  happened  in  October,  1833, 
held  a  note  against  the  defendant,  for  $50 ;  and  on  the  day  of  his 
decease,  and  when  he  was  entirely  senseless,  and  no  hopes  were 
entertained  of  his  recovery,  one  Jeremiah  Prescott,  to  whom  Foss 
was  indebted  in  the  sum  of  about  $46,  came,  in  company  with  the 
plaintiff,  to  the  house  of  Foss ;  and,  after  some  conversation,  it  was 
suggested  to  the  wife  of  Foss,  that  she  had  better  give  up  to  Pres- 
cott the  note  her  husband  had  against  the  defendant,  and  pay  the 
debt  due  him,  which  after  some  hesitation  she  concluded  to  do ;  upon 
which  the  amount  due  Prescott  was  deducted  from  the  amount  of  the 
note  against  the  defendant,  and  a  note  for  $4  or  $5  was  given  by 
Prescott,  payable  to  Foss,  as  a  balance.  The  defendant  afterwards 
paid  Prescott  the  amount  of  his  note.  This  suit  was  brought  to  re- 
cover the  amount  of  the  note,  on  the  ground  that  the  wife  of  Foss 
had  no  authority  to  deliver  up  the  note  to  Prescott  and  have  it  ap- 
plied in  the  manner  before  mentioned. 

There  was  evidence,  on  the  part  of  the  defendant,  tending  to  show 
that  for  several  years  previous  to  this  transaction  Foss's  wife  had 
been  his  general  agent  for  transacting  all  his  business,  and  that  she 
was  authorized  to  settle  this  concern  in  the  manner  she  did ;  but 
the  plaintiff  insisted  that  if  she  had  been  agent,  the  situation  of  Foss 
at  the  time  of  the  transaction,  which  was  well  known  to  her  and  the 
others  concerned,  operated  in  law  as  a  revocation  of  her  agency. 

The  court  charged  the  jury,  that  if  they  were  satisfied  that  the 
wife  had  been  the  general  agent  of  her  husband  for  several  years 
previous,  the  situation  in  which  he  was  placed  when  said  business 
was  transacted,  although  well  known  to  her  and  Prescott,  did  not 
operate  in  law  as  a  revocation  of  her  agency.  The  jury  returned  a 
verdict  for  the  defendant,  and  the  plaintiff  moved  for  a  new  trial. 

Parker,  C.  J. — There  is  no  pretense  that  a  wife,  as  such,  has  any 
authority  to  dispose  of  the  husband's  goods,  or  adjust  his  affairs,  by 
reason  of  his  incapacity  to  transact  business. 

But  it  is  contended,  in  this  case,  that  the  wife  having  had  a  gen- 
eral power  to  transact  business  for  her  husband  previous  to  his  ill- 
ness, nothing  but  an  express  revocation  of  that  power,  or  some  oc- 

mitted  goods  of  his  principal  to  a  sub-agent  for  sale.  The  factor  died,  and  his 
administrator  collected  from  the  sub-agent  the  proceeds  from  the  sale  of 
the  goods.  It  was  held  that  the  death  of  the  factor  terminated  his  agency; 
hence,  the  administrator  in  receiving  the  proceeds  did  not  receive  them  as  ad- 
ministrator, but  by  the  act  of  collection  made  himself  agent  for  the  principal. 


CurrtiKT    wiuc.d 


bankruptcy,  will  terminate  her  authorit 
husband,  and 


in  question,  n 
inca})ab]e  of  oi 

'jr  ,  and  iin< 

to  Prescott.  i' 
ued  in  thai 

The  autlr.i 
the  authorit  V,  ■ 
may  be  e^ 

1  it.  Hnd  no: 

v€r  is  C(                :th  an  in 

■  of  tiic 

Green  R. 

anier's 

s.  c.  8 
on  Al 
tion : 

v-rs  V.  King,  4  vaUJi...  jy 
i.ptcy,  on  h->  pr;^t.  nT';cr?t 
16  East  R 

in 
not.    1" 

iin 
the 

nver  to  con^. ., 
\'ermore  on  Age^' 
end  is  put  to  the  ; 
oneration  of  law  tr 
to  the  ci 

no  author; 

^en 

OS  are  uik 
cited  or  found  which  will  di 

present  ca 
We  art 

Mon, 

ho\'                at  the  auth 

where  th( 
act  of  Pr 

case  or  ix- 
iient  of  nil  j 

to  act  for 

satisfaclor 

,  les. 

til^  - 

274;  2  l^rvcniivrt 

Ti~  n  rpvoca- 


An  authority  to  do 
poses  a  power  in  tin 
The  act  to  be  dor 

princip' '    '' 

which 


IS  Ills  ; 
But 
revocable, 
present,  :r, 
in  fact  lyir 
t     ' 
t 

on  U 
act 
b 


anoth' 


\\  \   :  \  ■'  irv 


NEW    HaMP^I. 


iSIT,  UpC 

:i.    ti  i'eared   in  cvi. 
sume  tiine  previous  U' 
heUl  a  note  against  t! 
decease,  and  when  h^ 
entertained  of  his  reccver; 
was  indebted  in  the  svnn  ( 
plaintiff,  to  the  house  of  F 
suggested  to  the  . 
cort  tlie  note  her 
'ue  him, 
1  the  anv.' 
3iot€  against  the  ■ 


•Si,   Llie  pla-  Tor 

!iich  happenc.    -  \^3, 

and  ui!  liis 

CSS,  and  -  '"o 

•remiah  Prescott,  to 
...L  $46,  came,  in  compai.v 
and,  after  some  conversation 
that  she  had  better  give  up  1 
against  the  defendant,  and 
hesitation  she  conckided  to  do ;  ufX/.* 
was  deducted  from  the  amount  of  the 
and  a  note  for  $4  or  $5  was  given  by 
. ,  as  a  balance.    The  defendant  afterwards 
:uit  of  his  note.  This  suit  was  brought  to  re- 
"  •      "^n  the  ground  that  the  wife  of  Foss 
ihe  note  to  Prescott  and  have  it  ap- 
■  •d. 

I  f  the  defendant,  tending  to  show 
lu  this  transaction  Foss's  w^ife  had 
^acting  all  his  business,  and  that  she 
oncern  in  the  manner  she  did ;  but 
had  been  agent,  the  situation  of  Foss 
which  was  well  known  to  her  and  the 
s  a  revocation  of  her  agency. 
;l  if  they  were  satisfied  that  the 
>t  her  husband  for  several  years 
•  was  placed  when  said  biTsiness 
Mas  transacted,  althougn  well  known  to  her  and  Prescott,  did  not 
operate  in  law  as  a  rev-  1 ''''''  '  ^ler  agency.  The  jury  1,.  i-  ,,  1  1 
verdict  for  the  defend  laintifT  moved  for  a 

Parker,  C.  J. — Ther-,-  ■     >  ■  j'ltense  that  a  wife,  as  sv  1 

authority  to  dispose  of  the  fiusband's  goods,  or  adjust  h  i. , 

reason  of  his  incapacity  to  business. 

But  it  is  contended,  in  ;  that  the  wife  havinp"  had  n  gen- 

eral power  to  transact  bu,-  her  husband  pr(  11- 

iiC':->.  niching  but  an  exprt- .ation  of  that  po^A    .,  oc- 


was  ; 

tlie  pi.^Miwii  II -1---.  i  .11.1. 
at  the  time  of  the  transact;; 
others  concerned,  ■ 
The  court  chai  , 
wife  had  been  thi 
previous,  the  situ. 


'■3  of  his  principal  to  a  sub-agent  for  sale.    Tl. 
atiminisLrator  collected  from   the  sub-agent  the  proc' 
•he  eroods.     It  was  held  that  the  death  of  the  factor 
the  administrator  in  receiving  the  proceeds  did 
rator,  but  by  the  act  of  collection  made  himself 


nctr.T 


and  his 

of 


BY   OPERATION    OF    LAW.  '/6'J 

currence  which  divests  and  transmits  the  property,  as  death  or 
bankruptcy,  will  terminate  her  authority  to  act  as  the  agent  of  her 
husband,  and  that  she  therefore  might  well  dispose  of  the  note 
in  question,  notwithstanding  her  husband  was  utterly  insensible  and 
incapable  of  any  volition  whatever ;  and  this  well  known  to  her,  and 
to  Prescott,  to  whom  she  passed  it,  and  notwithstanding  he  contin- 
ued in  that  state  until  his  decease. 

The  authorities  show  that  the  death  of  the  constituent  terminates 
the  authority,  unless  the  power  is  coupled  with  an  interest  so  that  it 
may  be  executed  in  the  name  of  the  agent :  Harper  v.  Little,  2 
Green  R.  18;  Hunt  v.  Rousmanier's  Admr.,  2  Mason's  R.  244; 
s.  c.  8  Wheat.  R.  174;  Waters  v.  King,  4  Camp.  274;  2  Livermore 
on  Agency  302.  So  bankruptcy,  on  his  part,  operates  as  a  revoca- 
tion :  Parker  v.  Smith,  16  East  R.  386.  So  marriage  of  a  single 
woman  terminates  a  power  to  confess  a  judgment  in  her  behalf; 
Anon,  I  Salk.  399 ;  2  Livermore  on  Agency  307. 

In  all  these  cases  an  end  is  put  to  the  power  of  the  principal  to 
act,  and,  moreover,  the  operation  of  law  transfers  the  estate,  upon 
which  the  power  might  operate  to  the  custody  and  control  of  others. 
In  this  latter  respect  these  cases  are  unlike  the  one  before  us,  and 
no  authority  has  been  cited  or  found  which  will  directly  settle  the 
present  case. 

We  are  of  opinion,  however,  that  the  authority  of  the  agent, 
where  the  agency  is  revocable,  must  cease  or  be  suspended  by  an 
act  of  Providence  depriving  the  constituent  of  all  mind  and  ability 
to  act  for  himself,  and  that  this  doctrine  can  be  sustained  by  very 
satisfactory  principles. 

An  authority  to  do  an  act  for  and  in  the  name  of  another  presup- 
poses a  power  in  the  individual  to  do  the  act  himself,  if  present. 
The  act  to  be  done  is  not  the  act  of  the  agent,  but  the  act  of  the 
principal,  and  the  agent  can  do  no  act  in  the  name  of  the  principal 
which  the  principal  might  not  himself  do,  if  he  were  personally 
present.  The  principal  is  present  by  his  representative,  and  the 
making  or  execution  of  the  contract,  or  acknowledgment  of  a  deed, 
is  his  act  or  acknowledgment. 

But  it  would  be  preposterous,  where  the  power  is  in  its  nature 
revocable,  to  hold  that  the  principal  was  in  contemplation  of  law, 
present,  making  a  contract,  or  acknowledging  a  deed,  when  he  was 
in  fact  lying  insensible  upon  his  death  bed,  and  this  fact  well  known 
to  those  who  undertook  to  act  with  and  for  him.  The  act  done  by 
the  agent,  under  a  revocable  power,  implies  the  existence  of  volition 
on  the  part  of  the  principal.  He  makes  the  contract — he  does  the 
act.  It  is  done  through  the  more  active  instrumentality  of  another, 
but  the  latter  represents  his  person  and  uses  his  name. 

Farther,  upon  the  constitution  of  an  agent  or  attorney  to  act  for 
another,  where  the  authority  is  not  coupled  with  an  interest  and  not 
irrevocable,  there  exists  at  all  times  a  right  of  supervision  in  the 


768  TERMINATION    OF   AGENCY. 

principal  and  power  to  terminate  the  authority  of  the  agent  at  the 
pleasure  of  the  principal.  The  law  secures  to  the  principal  the  right 
of  judging  how  long  he  will  be  represented  by  the  agent  and  suffer 
him  to  act  in  his  name.  So  long  as,  having  the  power,  he  does  not 
exercise  the  will  to  revoke,  the  authority  continues. 

When,  then,  an  act  of  Providence  deprives  the  principal  of  the 
power  to  exercise  any  judgment  or  will  on  the  subject,  the  authority 
of  the  agent  to  act  should  thereby  be  suspended  for  the  time  being; 
otherwise  the  right  of  the  agent  would  be  continued  beyond  the 
period  when  all  evidence  that  the  principal  chose  to  continue  the  au- 
thority had  ceased ;  for  after  the  principal  was  deprived  of  the  power 
to  exercise  any  will  upon  the  subject,  there  could  be  no  assent,  or 
acquiescence,  or  evidence  of  any  kind  to  show  that  he  consented  that 
the  agency  should  continue  to  exist.  And,  moreover,  a  confirmed 
insanity  would  render  wholly  irrevocable  an  authority,  which,  by  the 
original  nature  of  its  constitution,  it  was  to  be  in  the  power  of  the 
principal  at  any  time  to  revoke. 

It  is  for  these  reasons  that  we  are  of  opinion  that  the  insanity  of 
the  principal,  or  his  incapacity  to  exercise  any  volition  upon  the  sub- 
ject, by  reason  of  an  entire  loss  of  mental  power,  operates  as  a 
revocation,  or  suspension  for  the  time  being,  of  the  authority  of  an 
agent  acting  under  a  revocable  power.  If,  on  the  recovery  of  the 
principal,  he  manifests  no  will  to  terminate  the  authority,  it  may  be 
considered  as  a  mere  suspension.  And  his  assent  to  acts  done  dur- 
ing the  suspension  may  be  inferred  from  his  forbearing  to  express 
dissent  when  they  came  to  his  knowledge :  i  Livermore  on  Agency, 
300;  Cairnes  v.  Bleecker. 

The  act  of  the  agent  in  the  execution  of  the  power,  however,  may 
not  in  all  cases  be  avoided  on  account  of  the  incapacity.  If  the  prin- 
cipal has  enabled  the  agent  to  hold  himself  out  as  having  authority, 
by  a  written  letter  of  attorney,  or  by  a  previous  employment,  and 
the  incapacity  of  the  principal  is  not  known  to  those  who  deal 
with  the  agent,  within  the  scope  of  the  authority  he  appears  to 
possess,  the  transactions  may  be  held  valid  and  binding  upon  the 
principal.  Such  case  forms  an  exception  to  the  rule,  and  the  prin- 
cipal and  those  claiming  under  him  may  be  precluded  from  set- 
ting up  his  insanity  as  a  revocation,  because  he  had  given  the  agent 
power  to  hold  himself  out  as  having  authority  and  because  the  other 
party  had  acted  upon  the  faith  of  it  and  in  ignorance  of  any  termina- 
tion of  it.  They  would  be  so  precluded  in  the  case  of  an  express 
revocation,  which  was  unknown  to  the  other  party :  2  Livermore  on 
;Agency  310;  Salte  v.  Field,  5  D.  &  E.  215;  2  Greenleaf's  R.  18. 
And  a  revocation  by  operation  of  law,  on  account  of  the  insanity  of 
the  principal,  cannot  have  a  greater  effect  than  the  express  revoca- 
tion of  the  party  himself.  But  this  case  is  not  of  that  character. 
Here  there  was  full  knowledge  of  the  situation  of  the  plaintiff's 
intestate,  by  Prescott,  when  he  received  the  note. 


where  the  power 


security,  or  <  v  ;> 
i"erms  or  n;;U:'  ■:  ir; 
:ind  as  a  ]->':'V\cr  ■ 

4  Camp.  ^7-?  i,  n.  -i.  ;•;--  - 

Such  a  ovnver  ojw  hv  the  pr 


continue  J  (2  Live 
the  case.  Some  > 
to,  v.' 


UT 


■ne  in  his  name, 
not  exist  where 
t  in  such  case  be  , 
{  the  act,  on  in<i 
'"e  if  ?nne,  and  ; 


rK;i(i 

It- 

not  (.' 

be  atu.  i.-  :     .'- 

&  Bea.  3<  But  tJv 

I.     '  'aters  \ 

Tohns 


have  ,  It  to  be  cor 

tore:-' 

W'Jlll 

sale 


the  pa' 


principal  and  power  to  terminate  tne   ,  -        ■  at  the 

pleasure  of  the  principal.     The  law  secv  ?  T-'ght 

of  judg'ing  how  long  he  will  be  repres*  Ter 

him  to  act  in  his  name.     So  long  as,  ha  MOt 

exercise  the  will  to  revoke,  the  authority  co; 

When,  then,  an  act  of  Providence  depiiv..  lin.ii.nl  nf  the 

power  to  exercise  any  judgment  or  will  on  the  l  ity 

of  the  agent  to  act  should  ;'•      '     be  suspended  jv.         .  '-^'^i.-^  ; 

otherwise  the  right  of  ih  .vould  be  contiii  ond  the 

period  when  all  evider  i  incipal  chose  to  ■  the  au- 

thority had  ceased;  fo'  ncipal  was  depri.  power 

to  exercise  any  will  upon  'Jic  i.ubject,  there  could  be  n  or 

acquiescence,  or  evidence  of  any  kind  to  show  that  he  co:  nai 

the  agency  should  continue  to  exist.  And,  moreover,  a  conhrmed 
insanity  would  render  wholly  irrevocable  an  authority,  which,  by  the 
original  nature  of  its  constitution,  it  was  to  be  in  the  power  of  tlie 
principal  at  any  time  to  revoke. 

It  is  for  these  r«^?t«;on<;  that  we  are  of  opinion  that  the  insanity  of 

the  p  .ercise  any  volition  upon  the  sub- 

;:.»  of  mental  power,  operates  as  a 

:on  tor  the  time  being,  of  the  authority  of  an 

•/■M  .-,r  J>!e  power.     If,  on  the  recovery  of  the 

j  ro  terminate  the  authority,  it  may  be 

•n.     And  his  assent  to  acts  done  dur- 
rred  from  his  forbearing  to  express 
disi:u.:u  V,  nowledge:     i  Livermore  on  Agency, 

300;  Caii 

The  act  ot  the  agent  m  ition  of  the  power,  however,  may 

not  in  all  cases  be  avoided mt  of  the  incapacity.     If  the  prin- 
cipal has  enabled  the  agent  to  hold  himself  out  as  having  authority, 
by  a  written  letter  of  attorney,  or  by  a  previous  employment,  and 
the  incapacity  of  the  principal   is  not  known  to  those  who  deal 
with  the  agent,  within  the  scope  of  the  authority  he  appears  to 
possess,  the  transactions  rnay  be  held  valid  and  binding  upon  the 
principal.     Suclij  case                 :  exception  to  the  rule,  and  the  prin- 
cipal and  those  claiii:      .  r  "him  may  be  precluded   f^nm   set 
ting  up  his  insanity  as  a  revocation,  because  he  had  giv.  ■.  i-t 
power  to  hold  himself  out  as  having  authority  and  becai:^.    . 
party  had  acted  upon  the  faith  of  it  and  in  ignorance  of  any 
tion  of  it.     They  would  be  so  precluded  in  the  case  of  an 
revocation,  which  was  unknown  to  the  other  party  :     2  Liver  ■ 
.Vgency  310;  Salte  v.  Field.  5  D.  &  E.  215:  2  G         * 
And  a  revocation  by  operation  of  law,  on  account  ( 
the  principal,  cannot  have  a  greater  effect  than 
tion  of  the  party  himself.     But  this  case  is  ri' 
TIere  there  was  full  knowledge  of  the  situaticm  of  the  plaintiff's 
•  *    fate,  by  Prescott,  when  he  rece'^"'^  ^^^^  '^'  ■  ' 


BY    OPERATION    OF    LAW.  769 

The  principle  that  insanity  operates  as  a  revocation  cannot  apply 
where  the  power  is  coupled  with  an  interest,  so  that  it  can  be  exer- 
cised in  the  name  of  the  agent,  for  such  case  does  not  presuppose  any 
volition  of  the  principal  at  the  time,  or  require  any  act  to  be  done  in 
his  name,  and  is  not  revoked  by  his  death. 

Whether  it  is  applicable  to  the  case  of  a  power  which  is  part  of  a 
security,  or  executed  for  a  valuable  consideration,  and  thus  is  by  its 
terms  or  nature  irrevocable,  and  which  seems  to  be  regarded  in  Eng- 
land as  a  power  coupled  with  an  interest  (lo  Barn.  &  Cres.  731; 
4  Camp.  272),  may  be  a  question  of  more  doubt:  2  Mason  249. 
Such  a  power  could  not  be  revoked  by  the  principal,  if  his  sanity  was 
continued  (2  Livermore  308),  and  any  volition  of  his  could  not  alter 
the  case.  Some  of  the  reasons,  therefore,  V\'hich  have  been  adverted 
to,  would  not  exist  in  a  case  of  that  character.  But  a  power  of  that 
kind  is  to  be  executed  in  the  name  of  the  principal ;  and  it  was  held, 
in  Hunt  v.  Rousmanier's  Administrator,  before  cited,  that  the  death 
of  the  principal  operates  as  a  revocation  of  it,  for  the  reason  that 
after  that  event  no  act  can  be  done  in  his  name,  as  if  he  himself  per- 
formed it.  This  reason  would  not  exist  where  he  was  still  living; 
and  perhaps  he  and  others  might  in  such  case  be  precluded  from  set- 
ting up  his  insanity  in  avoidance  of  the  act,  on  the  ground  that  he 
would  have  had  no  right  to  interfere  if  sane,  and  had  therefore  no 
right  to  insist  on  his  insanity  as  an  objection. 

It  has  been  held,  in  England,  that  the  insanity  of  one  partner  does 
not  operate  as  a  dissolution  of  the  partnership,  but  that  object  must 
be  attained  through  a  court  of  equity  :  Sayer  v.  Bennet,  cited  2  Ves. 
&  Bea.  303;  Gow  on  Part.  (272).  But  the  soundness  of  the  prin- 
ciple may  perhaps  be  doubted :  Waters  v.  Taylor,  2  Ves.  &  Bea. 
303;  Groswold  V.  Waddington,  15  Johns.  R.  57,  82.  It  certainly 
could  not  have  been  applied  here  prior  to  1832,  as  we  had  before  that 
time  no  court  through  whose  decree  in  equity  a  dissolution  could 
have  been  effected.  Admitting  it  to  be  correct  in  its  fullest  extent, 
however,  it  would  not  affect  this  case,  for  each  partner  has  an  in- 
terest, by  the  partnership  contract,  and  the  interest  of  one  partner 
would  not  be  terminated  by  the  insanity  of  another.  In  making  a 
sale  or  contract  he  does  not  act  as  agent,  but  in  his  own  right,  and 
the  partnership  name  may  be  used  by  one  without  any  supposition 
that  another  acts  individually  or  has  any  knowledge  or  volition  in 
relation  to  the  matter.  But  so  long  as  the  partnership  continues, 
the  act  of  the  one  binds  the  others ;  and  as  it  is,  in  its  effect,  the  act 
of  all  the  partners,  it  may  deserve  great  consideration  whether  the 
insanity  of  one,  in  the  absence  of  any  stipulation  to  the  contrary,  does 
not  operate  ipso  facto  as  a  dissolution  of  the  partnership  itself. 

The  result  of  the  view  we  have  taken  is  that  the  wife  of  the  in- 
testate had  at  the  time  no  authority  to  dispose  of  this  note  to  Pres- 
cott,  and  that  he  acquired  no  title  to  it,  and  had  no  right  to  receive 
49 — Reixhard  Cases. 


770  TERMINATION    OF    AGENCY.  ■    • 

the  money.  We  have  already  held,  on  a  former  case,  in  this  suit, 
that  a  payment  to  him,  by  the  defendant,  under  such  circumstances, 
could  not  operate  to  discharge  the  note:  8  N.  H.  224.  The  in- 
structions to  the  jury  were  erroneous,  but  there  is  no  agreement  in 
the  case  by  which  we  are  authorized  to  enter  judgment  for  the  plain- 
tiff, and  the  action  must,  therefore,  be  transferred  to  the  Common 
Pleas  for  a  new  trial,  if  there  is  anything  further  in  controversy  be- 
tween the  parties.^ 


Section  4. — Irrevocable  Agencies. 

HUNT  V.  ROUSMANIER'S  ADMINISTRATORS. 
1823.     Supreme  Court  of  the  United  States.     8  Wheat.  174. 

Appeal  from  the  Circuit  Court  of  Rhode  Island. 

The  original  bill,  filed  by  the  appellant,  Hunt,  stated  that  Lewis 
Rousmanier,  the  intestate  of  the  defendants,  applied  to  the  plaintiff 
in  January,  1820,  for  the  loan  of  $1,450,  offering  to  give,  in  addition 
to  his  notes,  a  bill  of  sale,  or  a  mortgage  of  his  interest  in  the  brig 
Nereus,  then  at  sea,  as  collateral  security  for  the  repayment  of  the 
money.  The  sum  requested  was  lent;  and  on  the  nth  of  January, 
the  said  Rousmanier  executed  two  notes  for  the  amount ;  and  on  the 
15th  of  the  same  month,  he  executed  a  power  of  attorney,  authoriz- 
ing the  plaintiff  to  make  and  execute  a  bill  of  sale  of  three-fourths 
of  the  said  vessel  to  himself,  or  tO'  any  other  person ;  and  in  the  event 
of  the  said  vessel,  or  her  freight,  being  lost,  to  collect  the  money 
which  should  become  due  on  a  policy  by  which  the  vessel  and  freight 
were  insured.  This  instrument  contained,  also,  a  proviso,  reciting 
that  the  power  was  given  for  collateral  security  for  the  payment  of 
the  notes  already  mentioned,  and  was  to  be  void  on  their  payment ; 
on  the  failure  to  do  which,  the  plaintiff  was  to  pay  the  amount  there- 

^  Accord:   Drew  v.  Nunn,  L.  R.  4  Q.  B.  D.  661. 

"Notwithstanding  the  declaration  of  Chancellor  Kent  (2  Kent  Com.  645) 
'that  the  better  opinion  would  seem  to  be  that  the  fact  of  the  existence  of  the 
lunacy  must  have  been  previously  established  by  inquisition,  before  it  could 
control  the  operation  of  the  power,'  the  weight  of  authority,  as  well  as  sound 
reasoning  lead  to  the  conclusion  that  the  after-occurring  insanity  of  the  prin- 
cipal operates,  per  se,  as  a  revocation  or  suspension  of  the  agency,  except  in 
cases  where  a  consideration  has  previously  been  advanced  in  the  transaction 
which  was  the  subject-matter  of  the  agency,  so  that  the  power  become  coupled 
with  an  interest;  or  where  a  consideration  of  value  is  given  by  a  third  person, 
trusting  to  an  apparent  authority  in,  ignorance  of  the  principal's  incapacity." 
Depue,  J.,  in  M.  &  W.  Refining  Co.  v.  McMahon,  38  N.  J.  L.  536,  546. 

Bankruptcy  of  the  agent  terminates  the  agency.  Hudson  v.  Granger,  5  B.  & 
A.  27;  Audenried  v.  Betteley,  8  Allen   (Mass.)  302. 

Regarding  the  effect  of  the  bankruptcy  of  the  principal  see  Ex  parte  Snow- 
ball, L.  R.  7  Ch.  App.  534. 


the  said  I 
said  notes 
turn  ot  ti^ 


t, 

tir 

as  lUji 
The  b- 

of  ■' 

t'f 


hi. 


that  ;. 


aim,  by  the  defendar 

cu'cumstances, 

■       '  .  '-   - ■,-  note. 

'Hie  in- 

IS.  but  ! 

■ent  in 

^11    vv  >-    • 

■  ~>]n- 

ction  tr^ 

■  in 

tor  a  new  tri                                Lhing  ti 

']<■  n.-iriics.' 

Section  4. — Irrevocable  Ag'^ 


TiT-VT  V    t:>OT'' 


DMTNTSTRATORS. 


The  or 


said  vessel,  or 


ited  that  I^^wis 

■iicd  to  the  plaintiff 

to  .cive,  in  addition 

>r  a  mc  in  the  brig 

-  i.^r:,'  s,  ...u  :-^,;.i;nent  of  the 

>n  the  nth  of  January, 

w  IK.'.:   :.u  the  amount;  and  on  the 

cuted  a  power  of  attorney,  authoriz- 

xecute  a  bill  of  sale  of  three-fourths 

o  any  oflier  person ;  and  in  the  event 

t,  to  collect  the  money 

h  the  ve<?sel  and  freight 

.ilso,  a  proviso,  reciting 

rity  for  the  payn'--'!  '-^ 

void  on  their  p: 

"^■e  amour. 


'Nc 


Kent   (3  Kent  O 


;  rat  ion  1. 

■■matter  • 


X\i    tiuV-i 

.  that  th< 


effect  oi 


IRREVOCABLE   AGENCIES.  771 

of.  ?.nd  all  expenses,  out  of  the  ]:)roceeds  of  tlic  said  property,  and  to 
return  the  residue  to  the  said  Rousmanier.  The  bill  furtlier  stated 
that  on  the  21st  of  March,  1820,  the  plaintiff  lent  to  the  said  Rous- 
manier the  additional  sum  of  $700,  taking  his  note  for  payment,  and 
a  similar  power  to  dispose  of  his  interest  in  the  schooner  Industry, 
then  also  at  sea.  The  bill  then  charged  that  on  the  6th  of  May,  1820, 
the  said  Rousmanier  died  insolvent,  having  paid  only  $200  on  the 
said  notes.  The  plaintiff  gave  notice  of  his  claim ;  and,  on  the  re- 
turn of  the  Nereus  and  Industry,  took  possession  of  them,  and  of- 
fered the  intestate's  interest  in  them  for  sale.  The  defendants  for- 
bade the  sale;  and  this  bill  was  brought  to  compel  them  to  join  in  it. 
The  defendants  demurred  generally,  and  the  court  sustained  the  de- 
murrer, but  gave  the  plaintiff  leave  to  amend  his  bill. 

The  amended  bill  stated  that  it  was  expressly  agreed  between  the 
parties,  that  Rousmanier  was  to  give  specific  security  on  the  Nereus 
and  Industry,  and  that  he  oft'ered  to  execute  a  mortgage  on  them. 
That  counsel  was  consulted  on  the  subject,  who  advised  that  a  power 
of  attorney,  such  as  was  actually  executed,  should  be  taken  in  prefer- 
ence to  a  mortgage,  because  it  was  equally  valid  and  effectual  as  a 
security,  and  would  prevent  the  necessity  of  changing  the  papers  of 
the  vessels,  or  of  taking  possession  of  them  on  their  arrival  in  port. 
The  powers  were,  accordingly,  executed,  with  the  full  belief  that 
they  would,  and  with  the  intention  that  they  should,  give  the  plaintiff 
as  full  and  perfect  security  as  would  be  given  by  a  deed  of  mortgage. 
The  bill  prayed  that  the  defendants  might  be  decreed  to  join  in  a  sale 
of  the  interests  of  their  intestate  in  the  Nereus  and  Industry,  or  to 
sell  the  same  themselves,  and  pay  out  of  the  proceeds  the  debt  due  to 
the  plaintiff.  To  this  amended  bill,  also,  the  defendants  demurred, 
and  on  argument  the  demurrer  was  sustained,  and  the  bill  dismissed. 
From  this  decree  the  plaintiff  appealed  to  this  court. 

Marshall,  Ch.  J. — The  counsel  for  the  appellant  objects  to  the 
decree  of  the  circuit  court  on  two  grounds.  He  contends:  i.  That 
this  power  of  attorney  does,  by  its  own  operation,  entitle  the  plaintiff, 
for  the  satisfaction  of  his  debt,  to  the  interest  of  Rousmanier  in  the 
Nereus  and  the  Industry.  2.  Or,  if  this  be  not  so,  that  a  court  of 
chancery  will,  the  conveyance  being  defective,  lend  its  aid  to  carry 
the  contract  into  execution,  according  to  the  intention  of  the  parties. 

We  will  consider:  i.  The  effect  of  the  power  of  attorney.  This 
instrument  contains  no  words  of  conveyance  or  of  assignment,  but 
is  a  simple  power  to  sell  and  convey.  As  the  power  of  one  man  to 
act  for  another  depends  on  the  will  and  license  of  that  other,  the 
power  ceases  when  the  will,  or  this  permission,  is  withdrawn.  The 
general  rule,  therefore,  is  that  a  letter  of  attorney  may,  at  any  time, 
be  revoked  by  the  party  who  makes  it ;  and  is  revoked  by  his  death. 
But  this  general  rule,  which  results  from  the  nature  of  the  act,  has 
sustained  some  modification.  Where  a  letter  of  attorney  forms  a 
part  of  a  contract,  and  is  a  security  for  money,  or  for  the  perform- 


772  TERMINATION    OF   AGENCY. 

ance  of  any  act  which  is  deemed  valuable,  it  is  generally  made  irrev- 
ocable in  terms,  or  if  not  so,  is  deemed  irrevocable  in  law.  Although 
a  letter  of  attorney  depends,  from  its  nature,  on  the  will  of  the  person 
making  it,  and  may,  in  general,  be  recalled  at  his  will,  yet,  if  he  binds 
himself  for  a  consideration,  in  terms,  or  by  the  nature  of  his  contract, 
not  to  change  his  will,  the  law  will  not  permit  him  to  change  it. 
Rousmanier,  therefore,  could  not,  during  his  life,  by  any  act  of  his 
own,  have  revoked  this  letter  of  attorney.  But  does  it  retain  its 
efficacy  after  his  death?  We  think  it  does  not.  We  think  it  well 
settled,  that  a  power  of  attorney,  though  irrevocable  during  the  life 
of  the  party,  becomes  extinct  by  his  death. 

This  principle  is  asserted  in  Littleton  (§  66),  by  Lord  Coke,  in 
his  commentary  on  that  section  (52b),  and  in  Willes'  Reports  (105, 
note,  and  565).  The  legal  reason  of  the  rule  is  a  plain  one.  It 
seems  founded  on  the  presumption  that  the  substitute  acts  by  virtue 
of  the  authority  of  his  principal,  existing  at  the  time  the  act  is  per- 
formed ;  and  on  the  manner  in  which  he  must  execute  his  authority, 
as  stated  in  Combes'  Case,  9  Co.  766.  In  that  case  it  was  resolved 
that  "when  any  has  authority  as  attorney  to  do  any  act,  he  ought  to 
do  it  in  his  name  who  gave  the  authority."  The  reason  of  this  res- 
olution is  obvious.  The  title  can,  regularly,  pass  out  of  the  person 
in  whom  it  is  vested,  only  by  a  conveyance  in  his  own  name;  and 
this  cannot  be  executed  by  another  for  him,  when  it  could  not,  in 
law,  be  executed  by  himself.  A  conveyance  in  the  name  of  a  person 
who  was  dead  at  the  time,  would  be  a  manifest  absurdity. 

This  general  doctrine,  that  a  power  must  be  executed  in  the  name 
of  a  person  who  gives  it,  a  doctrine  founded  on  the  nature  of  the 
transaction,  is  most  usually  engrafted  in  the  power  itself.  Its  usual 
language  is,  that  the  substitute  shall  do  that  which  he  is  empowered 
to  do  in  the  name  of  his  principal.  He  is  put  in  the  place  and  stead 
of  his  principal,  and  is  to  act  in  his  name.  This  accustomed  form  is 
observed  in  the  instrument  under  consideration.  Hunt  is  constituted 
the  attorney,  and  is  authorized  to  make,  and  execute,  a  regular  bill 
of  sale  in  the  name  of  Rousmanier.  Now,  as  an  authority  must  be 
pursued,  in  order  to  make  the  act  of  the  substitute  the  act  of  the 
principal,  it  is  necessary  that  this  bill  of  sale  should  be  in  the  name  of 
Rousmanier ;  and  it  would  be  a  gross  absurdity  that  a  deed  should 
purport  to  be  executed  by  him,  even  by  attorney,  after  his  death ;  for 
the  attorney  is  in  the  place  of  the  principal,  capable  of  doing  that 
alone  which  the  principal  might  do. 

This  general  rule,  that  a  power  ceases  with  the  life  of  the  person 
giving  it,  admits  of  one  exception.  If  a  power  be  coupled  with  an 
"interest,"  it  survives  the  person  giving  it,  and  may  be  executed  after 
his  death.  As  this  proposition  is  laid  down  too  positively  in  the 
books  to  be  controverted,  it  becomes  necessary  to  inquire  what  is 
meant  by  the  expression,  "a  power  coupled  with  an  interest."  Is  it 
an  interest  in  the  subject  on  Avhich  the  power  is  to  be  exercised,  or  is 


,    n  ri  1  n  *.••-■■ .    ^  ,       , . 

It  to  be 

.    ■ic-uh  0+    :■ 
■  .    itself, 
efiate  in   / 
this  me'ir:' 


stand  by 
ducecl  If 
powt' 


511    -^X' 


//^ 

ance  of  any  act  which  is  deemed  > 

ocable  in  terms,  or  if  not  so,  is  dc 

a  letter  of  attorney  depends,  from  its  natur.  ' :  i  .i 

making  it,  and  may,  in  general,  be  recalled  ....  '  ' 

himself  for  a  consideration,  in  terms,  or  by  the 

not  to  change  his  will,  the  law  will  not  per- 

Rousmanier,  therefore,  couid  not,  during  his  • 

own,  have  revoked  tliis  letter  of  attorney.     But 

etticacy  after  his  death"     We  think  it  does  not. 

settled,  that  a  power  ;ey,  though  irrevocable  durmg  \h> 

of  the  party,  becnnn  _  by  his  death. 

This  principle  -ed  in  Littleton  (§  66),  by  Lord 

liis  commentary  u.i  .^  ..,  ;,ection  (52b),  and  in  Willes'  Repo;... 
note,  and  565).     The  legal  reason  of  the  rule  is  a  plain  one 
'ed  on  thi  iption  that  the  substitute  acts  by  v 

rity  of  1  al,  existing  at  the  time  the  act  is  , 

1  which  he  n^  ute  his  authority, 

Co.  766.    Ir;  ■■■■:  it  was  resolved 

as  attorney  to  do  any  act,  he  ought  t' 
;  t'ority."    The  reason  of  this  res 
ularly,  pass  out  of  the  person 
•  ■iveyance  in  his  own  name;  and 
er  for  him,  when  it  could  not,  in 
juveyance  in  the  name  of  a  person 
1  be  a  manifest  absurdity. 
i  a  power  must  be  executed  in  • 

of  :..  ,  .,-      -    ..  -  :-,  't- trine  founded  on  the  natu   _ 

transaction,  is  most  -  fted  in  the  power  itself,     its  usual 

language  is,  that  the  dl  do  that  which  he  is  empowered 

to  do  in  tlie  name  of  He  is  put  in  the  place  and  stead 

of  his  principal,  ^^  name.     This  accustomo.' 

obsen'ed  i"  the  i  onsideration.     Hunt  is  c 

the  .  and  it  .  make,  and  execute,  a  r. 

of  -  e  name  •  -r.     Now,  as  an  authont\ 

pursued,  m  order  to  maKe  the  act  of  the  substitute  the  act  01  the 
principal,  it  is  necessary  that  this  bill  of  sale  should  be  iv'  ^y-    ;;.'  if^  of 
Rousmanier;  and  it  would  be  a  gross  absurdity  that   • 
purport  to  be  executed  by  him,  even  by  attorney,  after 
the  attorney  is  in  the  place  of  the  principal,  capable 
alo: 

vith  the 
givj'ii^  ii:.  auiii('.b  u;  m.     If  a  power  b 

■■interest/'  it  survive  ^  .giving  it,  and  ma 

his  death.     As  this  proposition  is  laid  down  toe  y  in  the 

books  to  be  controverted,  it  becomes  necessary  t  what  is 

meant  by  the  expression,  "a  power  coupled  with  ^  ;;.''     Is  it 

'  ia  the  subject  on  which  the  power  b:  ^  ■  "  '     •'  '" 


IRREVOCABLE   AGENCIES.  773 

it  an  interest  in  that  which  is  produced  by  the  exercise  of  the  power  ? 
We  hold  it  to  be  clear  that  the  interest  which  can  protect  a  power 
after  death  of  a  person  who  creates  it,  must  be  an  interest  in  the 
thing  itself.  In  other  words,  the  power  must  be  engrafted  on  an 
estate  in  the  thing.  The  words  themselves  w^ould  seem  to  import 
this  meaning.  "A  power  coupled  with  an  interest"  is  a  power  which 
accompanies,  or  is  connected  with  an  interest.  The  power  and  the 
interest  are  united  in  the  same  person.  But  if  we  are  to  under- 
stand by  the  word  "interest,"  an  interest  in  that  which  is  to  be  pro- 
duced by  the  exercise  of  the  power,  then  they  are  never  united.  The 
power,  to  produce  the  interest,  must  be  exercised,  and  by  its  exercise, 
is  extinguished.  The  power  ceases  when  the  interest  commences, 
and,  therefore,  cannot,  in  accurate  law  language,  be  said  to  be 
"coupled"  with  it. 

But  the  substantial  basis  of  the  opinion  of  the  court  on  this  point, 
is  found  in  the  legal  reason  of  the  principle.  The  interest  or  title  in 
the  thing  being  vested  in  the  person  who  gives  the  power,  remains  in 
him,  unless  it  be  conveyed  with  the  power,  and  can  pass  out  of  him 
only  by  a  regular  act  in  his  own  name.  The  act  of  the  substitute, 
therefore,  which,  in  such  a  case,  is  the  act  of  the  principal,  to  be 
legally  effectual,  must  be  in  his  name,  must  be  such  an  act  as  the 
principal  himself  would  be  capable  of  performing,  and  which  would 
be  valid  if  performed  by  him.  Such  a  power  necessarily  ceases  with 
the  life  of  the  person  making  it.  But  if  the  interest,  or  estate,  passes 
with  the  power,  and  vests  in  the  person  by  whom  the  power  is  to  be 
exercised,  such  person  acts  in  his  own  name.  The  estate,  being  in 
him,  passes  from  him  by  a  conveyance  in  his  own  name.  He  is  no 
longer  a  substitute,  acting  in  the  place  and  name  of  another,  but  is  a 
principal  acting  in  his  own  name,  in  pursuance  of  powers  which  limit 
his  estate.  The  legal  reason  which  limits  a  power  to  the  life  of  the 
person  giving  it,  exists  no  longer,  and  the  rule  ceases  with  the  reason 
on  which  it  is  founded.  The  intention  of  the  instrument  may  be 
effected  without  violating  any  legal  principle. 

This  idea  may  be  in  some  degree  illustrated  by  examples  of  cases 
in  which  the  law  is  clear,  and  which  are  incompatible  with  any  other 
exposition  of  the  -term  "power  coupled  with  an  interest."  If  the 
word  "interest,"  thus  used,  indicated  a  title  to  the  proceeds  of  the 
sale,  and  not  a  title  to  the  thing  to  be  sold,  then  a  power  to  A  to  sell 
for  his  own  benefit,  would  be  a  power  coupled  with  an  interest ;  but 
a  power  to  A  to  sell  for  the  benefit  of  B,  would  be  a  naked  power, 
which  could  be  executed  only  in  the  life  of  the  person  who  gave  it. 
Yet,  for  this  distinction,  no  legal  reason  can  be  assigned.  Nor  is 
there  any  reason  for  it  in  justice;  for,  a  power  to  A,  to  sell  for  the 
benefit  of  B,  may  be  as  much  a  part  of  thie  contract  on  which  B  ad- 
vances his  money  as  if  the  power  had  been  made  to  himself.  If  this 
were  the  true  exposition  of  the  term,  then  a  power  to  A  to  sell  for 
the  use  of  B,  inserted  in  a  conveyance  to  A,  of  the  thing  to  be  sold. 


774  TERMINATION    OF   AGENCY. 

would  not  be  a  power  coupled  with  an  interest,  and,  consequently, 
could  not  be  exercised  after  the  death  of  the  person  making  it ;  while 
a  power  to  A  to  sell  and  pay  a  debt  to  himself,  though  not  accom- 
panied with  any  conveyance  which  might  vest  the  title  in  him,  would 
enable  him  to  make  the  conveyance,  and  to  pass  a  title  not  in  him, 
even  after  the  vivifying  principle  of  the  power  had  become  extinct. 
But  every  day's  experience  teaches  us  that  the  law  is  not  as  the  first 
case  put  would  suppose.  We  know  that  a  power  to  A  to  sell  for  the 
benefit  of  B,  engrafted  on  an  estate  conveyed  to  A,  may  be  exercised 
at  any  time,  and  is  not  affected  by  the  death  of  the  person  who  cre- 
ated it.  It  is,  then,  a  power  coupled  with  an  interest,  although  the 
person  to  whom  it  is  given  has  no  interest  in  its  exercise.  His 
power  is  coupled  with  an  interest  in  the  thing  which  enables  him  to 
execute  it  in  his  own  name,  and  is,  therefore,  not  dependent  on  the 
life  of  the  person  who  created  it. 

The  general  rule,  that  a  power  of  attorney,  though  irrevocable  by 
the  party  during  his  life,  is  extinguished  by  his  death,  is  not  affected 
by  the  circumstance  that  testamentary  powers  are  executed  after  the 
death  of  the  testator.  The  law,  in  allowing  a  testamentary  disposi- 
tion of  property,  not  only  permits  a  will  to  be  considered  as  a  con- 
veyance, but  gives  it  an  operation  which  is  not  allowed  to  deeds 
which  have  their  effect  during  the  life  of  the  person  who  executes 
them.  An  estate  given  by  will  may  take  effect  at  a  future  time  or 
on  a  future  contingency,  and,  in  the  meantime,  descends  to  the  heir. 
The  power  is,  necessarily,  to  be  executed  after  the  death  of  the  per- 
son who  makes  it,  and  cannot  exist  during  his  life.  It  is  the  inten- 
tion that  it  shall  be  executed  after  his  death.  The  conveyance  made 
by  the  person  to  whom  it  is  given,  takes  effect  by  virtue  of  the  will, 
and  the  purchaser  holds  his  title  under  it.  Every  case  of  a  power 
given  in  a  will  is  considered  in  a  court  of  chancery  as  a  trust,  for  the 
benefit  of  the  person  for  whose  use  the  power  is  made,  and  as  a  de- 
vise or  bequest  to  that  person. 

It  is,  then,  deemed  perfectly  clear  that  the  power  given  in  this  case 
is  a  naked  power,  not  coupled  with  an  interest,  which,  though  irrev- 
ocable by  Rousmanier  himself,  expired  on  his  death.^    *    *    *  2 

^A  portion  of  the  opinion  not  dealing  with  the  question  of  irrevocability  is 
omitted.  The  court  reversed  the  decree  of  the  circuit  court,  and  remanded  the 
cause  to  that  court,  with  directions  to  permit  the  defendants  to  withdraw  their 
demurrer,  and  to  answer  the  bill  of  the  complainants. 

"  "A  power  coupled  with  an  interest  cannot  be  revoked  by  the  person  grant- 
ing it;  but  it  is  necessarily  revoked  by  his  death.  How  can  a  valid  act  be 
done  in  the  name  of  a  dead  man?"  Lord  Ellenborough  in  Watson  v.  King, 
4  Camp.  272,  274.   Followed  in  Frederick's  Appeal,  52  Pa.  St.  338. 

"Where  an  authority  or  power  is  given  for  a  valuable  consideration,  or  is 
coupled  with  an  interest,  or  is  part  of  a  security  for  the  payment  of  money 
or  the  performance  of  some  other  lawful  act,  it  is  irrevocable,  whether  so  ex- 
pressed upon  its  face  or  not."    Searls,  C,  in  Frink  v.  Roe,  70  Cal.  296,  309. 

See  Terwilliger  v.  Ontario,  etc.,  R.  R.  Co.,  149  N.  Y.  86. 


iJ.. 
1 866.    SuPR! 

Appeal  from 
Hartk)'  ■{-■'■ 

Hann 
ley  .'     • 
and 
povv- 
"the- 
se:- 
est. 

re  11  ■ 


lo  i 
att-:. 
a.lM 


rr.R:\iTNATifv>:  or  Atn-:N\-\ 


V'.  >.iiu'.i  Tiui    ixr  ci  power  Cl.lUp■e^J    U'uii   ;•. 

could  not  be  exercised  after  the  deaths 
vver  to  A  to  sell  and'  pay  a  debt  X< 
J  with  any  conveyance  which  mis,: 
v>  him  to  make  the  conveyance,  aud  to  p^ 
after  the  vivifying  principle  of  the  power 


juenny, 
;  while 

:.;ccom- 
would 
1 1  him, 

■.,xtinct. 


But  every  day's  experience  teaches  us  that  the  law  is  not  as  the  first 


case  put  would  suppose.     \^" 
benefit  of  B,  engrafted  on 
at  any  time,  and  is  not  aft'e' 
ated  it.     It  is,  then,  a  power 
"1  to  whom  it  iS  glvcti 


'  that  a  power  to 
conveyed  to  A,  r 
"}  the  death  of  the  ■■ 
coupled  with  an  inters 
lias  no  interest  in  its 


iiw 


ex 


the 
His 
'  r  is  coupled  with  riv.  ^-'^-rest  in  the  thing  which  en.  i  to 

execute  it  in  his  own  d  is,  therefore,  not  dependent  on  the 

life  of  the  person  who  .   it. 

The  general  rule,  that  a  power  of  attorney,  though  irrevocable  by 


the  party  duri- 
(>v  the  circuiri 


tion  that  it  shall  be  ex 
by  the  person  to  whom  it 
and  tlie  purchaser  holds  ) 
given  in  a  will  is  cons: 
benefit  of  the  person  i 
vise  or  bequest  to  that  pei 
It  is,  then,  deemed  perf< 
is  a  naked  power,  not  con 
ocable  bv  Rousmaniet-  ' 


extinguished  by  his  death,  is  not  affected 

;stameiitary  powers  are  executed  after  the 

I  ne  law,  in  allowing  a  testamentary  disposi- 

!ilv  permits  a  will  to  be  considered  as  a  con- 

ition  which  is  not  allowed  to  deeds 

_;  the  life  of  the  person  who  executes 

i  may  take  effect  at  a  future  time  or 

n  the  meantime,  descends  to  the  heir. 

e  executed  after  the  death  of  the  per- 

exist  during  his  life.     It  is  the  inten- 

'^^ter  his  death.   The  conveyance  made 

.]iven,  takes  effect  by  virtue  of  the  will, 

title  under  it.     Every  case  of  a  power 

art  of  chancery  as  a  trust,  for  the 

t^.t  DOwer  is  made,  and  a?  a  de- 


.....  w,o  power  givci,  ...  .....    .  ..v 

an  interest,  which,  though  irrev- 
ired  on, his  death.'     -'    ''    "  ' 


the  question  ai  i- 
circuit  court,  aiui 
,,>  /i.r-^ndants  to  v.. 


^A  portion  of  thr     - 
omitted.  The  court 

'  -  •■  to  that  court,  ■.  ..  .    ......     ■     ...  ; 

'■rer,  and  to  answer  the  bill  of  the 
.\  power  coupled  with  an  interest  c  sd  by  the 

ing  it;  but  it  is  necessarily  revoked  by  nis  death.  Ho.w  can  a 
done  in  the  name  of  a  dead  mar;'"  I>ord  Ellcnborough  in  W-i 
4  Camp.  272,  274.   Followed  it-  "s  Appeal,  52  Pa.  Si 

"Where  an  authority  or  p'.^.  en  for  a  valuahle 

coupled  with  an  interest,  or  is  p,iu  ^1  a  security  for 
or  the  performance  of  some  other  lawful  act,  it  is  irr. 
pressed  upon  its  face  or  not.'*   Searls,  C,  in  Friiik  v.  K"- 

See  Terwilliger  v.  Ontario,  etc.,  R,  R.  Co.,  149  N.  Y.  86 


persi>n 

V'llid 


grant- 
act  be 
King, 


inoiiey 
so  ex- 


IRREVOCABLE    AGENCIES.  775 

HARTLEY  and  MINOR'S  APPEAL. 
1866.     Supreme  Court  of  Pennsylvania.     53  Pa.  St.  212. 

Appeal  from  the  Orphans'  Court  of  Greene  County,  by  Samuel 
Hartley  and  John  Minor. 

Hannah  D.  Gallion,  on  the  30th  day  of  June,  1866,  made  to  Hart- 
ley and  Minor  a  power  of  attorney  to  collect  and  receive  all  money 
and  property  coming  to  her  as  heir  of  John  Douglass,  deceased,  with 
power  to  convey  her  interest  in  the  real  estate  of  the  decedent,  etc., 
"the  said  Hartley  and  Minor  to  receive  as  compensation  for  their 
services  herein  one-half  of  the  net  proceeds  of  my  interest  in  said 
estate  which  may  be  collected  or  received  by  them  as  my  attorneys, 
after  paying  all  costs  and  expenses,  they  to  receive  no  further  com- 
pensation for  any  service  they  may  render  or  expenses  they  may  in- 
cur or  pay  as  my  attorneys." 

On  the  20th  of  July,  1866,  she  gave  another  power  of  attorney  to 
Livingston  Howland  for  the  same  purpose,  and  in  it  revoked  that  to 
Hartley  and  Minor.  On  the  29th  of  September,  1866,  Hartley  and 
Minor,  as  attorneys  of  Hannah  Gallion,  petitioned  the  Orphans' 
Court  of  Greene  county  for  a  citation  to  the  administrator,  etc.,  of 
Douglass  to  settle  his  account.  This  was  objected  to  because  of  the 
power  of  attorney  to  Howland.  On  this  ground  the  court  refused  to 
award  the  citation,  and  dismissed  the  petition.  Hartley  and  Minor 
appealed  from  this  decree,  and  assigned  it  for  error. 

Thompson,  J. — There  was  no  error  committed  by  the  court  below 
in  holding  the  power  of  attorney  of  Hannah  Gallion  to  the  appellants 
to  be  revocable.  It  was  an  ordinary  agency,  constituted  by  letter  of 
attorney,  to  act  for  her  to  enforce  a  settlement  of  his  accounts  by  the 
administrator  of  her  father's  estate,  in  which  she  was  interested,  and 
to  collect  any  moneys  or  property  that  might  belong,  or  be  coming 
to  her.  For  these  services  the  attorneys  were  to  have  one-half  of  the 
net  proceeds  of  what  they  might  receive  or  recover  for  her.  The 
plaintiffs  in  error  suppose  that  this  clause  rendered  the  power  ir- 
revocable by  their  principal,  under  the  idea  that  it  was  a  power  cou- 
pled with  an  interest.  This  was  a  mistake,  as  all  the  authorities  show. 
To  impart  an  irrevocable  quality  to  a  power  of  attorney  in  the  ab- 
sence of  any  express  stipulation,  and  as  the  result  of  legal  principles 
alone,  there  must  co-exist  with  the  power  an  interest  in  the  thing  or 
estate  to  be  disposed  of  or  managed  under  the  power.  An  instance 
of  frequent  occurrence  in  practice  may  be  given  of  the  assignment  of 
vessels  at  sea,  with  a  power  to  sell  for  the  benefit  of  the  holder  of  the 
power,  or  of  anybodv  else  who  may  have  advanced  money  and  who 
it  was  agreed  should  be  secured  in  that  way.  So  where  securities 
have  been  transferred  with  a  power  to  sell,  and  generally,  I  presume, 
in  all  cases  of  property  pledged  for  the  security  of  money  where 
there  is  an  accompanying  authority  to  sell  to  reimburse  the  lender 


J'/d  TERAIINATION    OF    AGENCY. 

or  creditor.  In  Hunt  v.  Rousmanier,  8  Wheat.  174,  this  doctrine  is 
clearly  and  fully  elucidated  in  the  opinion  of  Marshall,  C.  J.  In  Ban- 
croft V.  Ashhurst,  2  Grant  513,  a  case  tried  at  nisi  priiis  before  me, 
at  which  my  brethren  sat  as  adsessors,  there  is  a  pretty  full  examina- 
tion of  the  question  herein  involved,  and  all  the  authorities  referred 
to,  and  the  conclusion  is  fully  in  accordance  with  Hunt  v.  Rous- 
manier, and  sustains  the  above  view  of  a  power  coupled  with  an 
interest. 

In  the  case  in  hand  the  power  and  the  interest  could  not  co-exist. 
The  interest  the  appellants  would  have  would  be  in  the  net  pro- 
ceeds collected  under  the  power,  and  the  exercise  of  the  power  to 
collect  the  proceeds  would  ipso  facto  extinguish  it  entirely,  or  so  far 
as  exercised.  Hence  the  appellants'  interest  would  properly  begin 
when  the  power  ended.  This  distinction  is  noticed  in  Hunt  v.  Rous- 
manier ;  but  neither  by  this  test,  nor  any  other,  was  the  power  of 
attorney  in  question  irrevocable,  and  this  judgment  must  be  affirmed. 

Judgment  affirmed.^ 


KNAPP  V.  ALVORD. 

1843.     Court  of  Chancery  of  New  York.     10  Paige  205. 

This  case  came  before  the  court  upon  exceptions  to  the  report 
of  a  master  to  whom  it  was  referred  to  take  and  state  the  account 
of  the  defendant  as  the  administratrix  of  W.  Alvord,  deceased,  and 
to  report  the  amount  due  to  the  complainant  and  to  the  other  cred- 
itors of  the  decedent ;  and  the  only  question  was  as  to  the  right  of 
J.  Meads  to  retain,  out  of  the  estate,  of  the  decedent,  the  amount 
of  two  notes  upon  which  he  was  endorser,  the  estate  of  the 
decedent  being  insufficient  to  pay  all  his  debts.  The  master 
decided  in  favor  of  the  right  of  Meads  to  retain,  and 
allowed  to  the  administratrix  the  amount  retained  by  Meads 
out  of  the  proceeds  of  the  property  of  the  decedent,  and  which 
had  been  so  retained  with  her  assent.  Rathbone  and  Smith,  two 
of  the  creditors  who  had  come  in  and  proved  their  debts  under 
the  decree,  excepted  to  that  part  of  the  report.  The  facts  on 
which  the  question  arose  were  as  follows :  The  decedent,  W.  Alvord, 
for  some  time  previous  to  his  death,  carried  on  the  business  of  a 
cabinet-maker  in  the  city  of  Albany.  In  the  fall  of  1837,  Alvord  be- 
ing in  bad  health.  Meads,  who  had  formerly  been  his  co-partner, 
consented  to  assist  him  gratuitously  in  the  care  and  management  of 
his  business.  In  the  latter  part  of  November  in  that  year,  the  de- 
cedent having  determined  to  spend  the  winter  at  the  south,  on  ac- 

^  The  authority  of  an  agent  to  whom  a  negotiable  promissory  note  has  been 
endorsed  for  collection  is  not  revoked  by  the  death  of  the  owner,  as  the  en- 
dorsement passes  the  legal  title  to  the  note.   Moore  v.  Hall,  48  Mich.  143. 


IRREVOCABLE   AGENCIES.  '/JJ 

count  of  his  health,  applied  to  Meads  to  take  the  general  charge 
of  his  business  during  his  absence;  to  which  Meads  consented.  At 
that  time  a  note  of  $i,8oo,  drawn  by  Alvord  and  endorsed  by  Whit- 
ney and  Van  Vechten  as  his  sureties,  was  held  by  the  Mechanics'  & 
Farmers'  Bank,  and  was  payable  December  9.  Alvord  also  owed 
another  note  to  H.  Rector,  for  $428.34,  endorsed  by  Meads,  and 
which  was  payable  December  12,  1837.  To  provide  for  the  pay- 
ment of  these  notes,  or  others  w4iich  might  be  given  in  renewal 
thereof,  and  to  enable  Meads  the  better  to  manage  his  business  dur- 
ing his  anticipated  absence,  Alvord  executed  an  instrument,  bearing 
date  November  22,  1837,  constituting  j\Ieads  his  agent  and  attorney 
to  carry  on,  conduct,  and  manage  his  business  as  a  cabinet-maker, 
in  his  absence ;  to  purchase  and  procure  stock  and  materials  ;  to  hire, 
pay  and  discharge  workmen ;  to  collect  and  receive  moneys,  etc.,  and 
to  apply  the  same  in  his  said  business ;  or  to  the  support  of  the  de- 
cedent's family,  or  to  the  payment  or  security  of  his  debts  and  lia- 
bilities. That  instrument  or  power  also  contained  the  following 
clause :  "And  I  hereby  expressly  authorize  and  empower  the  said 
Meads  to  sell,  assign,  transfer,  and  dispose  of,  at  any  time,  or  in 
any  manner  which  he  may  deem  necessary  or  advisable,  all  or  any 
furniture,  stock,  property,  notes,  claims,  or  other  effects  whatsoever, 
which  now  are  or  may  at  any  time  be  in  his  hands,  belonging  to  me, 
and  to  apply  the  same  and  the  proceeds  thereof  to  the  security  or 
payment  in  whole  or  in  part,  of  a  certain  note  for  about  the  sum  of 
$1,800,  drawn  by  me  and  endorsed  by  S.  Whitney  and  J.  T.  B.  Van 
Vechten,  and  discounted  at  the  Mechanics'  &  Farmers'  Bank ;  or  any 
note  or  notes  which  may  be  given  in  lieu  or  renewal  thereof  or  of 
any  part  thereof ;  and  to  the  payment  or  security  of  any  note  or 
notes  drawn  by  me,  and  endorsed,  or  which  may  have  been  en- 
dorsed, by  the  said  Aleads,  or  for  which  he  may  become  respon- 
sible." The  day  after  the  execution  of  this  instrument  the  decedent 
attended  at  his  shop  and  delivered  over  his  account  books,  etc.,  to 
Meads,  and  put  him  into  actual  possession,  and  charge  of  the  shop 
and  business,  and  the  property  therein  and  Aleads  then  opened,  or 
caused  to  be  opened,  a  new  cash-book  in  the  presence  of  Alvord.  On 
the  same  day  Alvord  gave  to  Whitney,  one  of  the  endorsers  upon  the 
$1,800  note,  a  mortgage  upon  the  furniture,  lumber,  and  stock  in 
trade  of  the  said  cabinet-maker's  business,  to  secure  him  as  the  en- 
dorser of  that  note  or  of  any  other  note  which  might  be  given  in  lieu 
or  renewal  of  it ;  which  mortgage  was  filed  in  the  clerk's  office  De- 
cember 26  thereafter.  Alvord  left  for  the  south  a  day  or  two  after 
the  date  of  these  instruments,  having  left  his  signatures  in  blank 
with  Meads,  to  enable  him  to  renew  the  notes  if  necessary ;  and  he 
died  at  Savannah,  in  Georgia,  December  18,  1837. 

When  the  $1,800  note  became  due,  December  9.  Meads  wrote  a 
new  note  for  the  same  amount  over  one  of  the  blank  signatures, 
payable  in  ninety  days,  which  was  also  endorsed  by  Whitney  and 


778  TERMINATION    OF   AGENCY. 

Van  Vechten,  and  given  to  the  bank  in  renewal  of  the  note.  And 
as  the  bank  required  further  security,  Meads  put  his  name  upon  the 
note  as  a  subsequent  endorser.  December  12,  when  the  note  of 
Rector  became  due,  Meads  filled  up  another  note  over  one  of  Al- 
vord's  blank  signatures,  and  endorsed  the  same  himself  and  gave  it 
in  renewal  of  the  old  note ;  which  note  was  also  made  payable  in 
ninety  days.  Both  of  these  renewal  notes  were  duly  protested  for 
non-payment,  and  were  afterwards  taken  up  by  Meads  as  endorser. 
After  the  death  of  Alvord,  Meads  claimed  a  lien  upon  the  property 
and  assets  of  the  cabinet-making  business  in  his  hands,  for  all  re- 
sponsibilities which  he  had  incurred,  as  endorser  upon  these  notes 
or  otherwise;  and  he  continued  in  the  possession  and  control  of  the 
property,  with  the  assent  of  the  administratrix,  until  April,  1838, 
when  the  property  was  sold  at  auction,  under  his  direction,  and  with 
her  assent.  The  amount  of  the  notes  was  retained  by  him  out  of  the 
proceeds  of  the  sale,  and  the  residue  of  the  proceeds  was  accounted 
for  to  the  administratrix. 

The  Chancellor. — The  personal  mortgage  to  Whitney  not  being 
filed  till  after  the  death  of  Alvord,  and  not  being  accompanied  by  an 
immediate  delivery  and  continued  possession  of  the  property,  it  may 
be  doubtful  whether  it  was  sufficient  to  give  Whitney,  who  was 
liable  to  Meads  as  the  last  endorser  of  the  note  of  $1,800,  a  prefer- 
ence in  payment  over  the  other  creditors  of  Alvord.  This  case, 
however,  does  not  turn  upon  that  question ;  as  I  am  satisfied  that  an 
equitable  lien  upon  the  property  was  created  by  the  special  clause  in 
the  power  in  reference  to  the  $1,800  note  and  to  notes  drawn  by 
Alvord  and  endorsed  by  Meads.  And  as  that  instrument  was  accom- 
panied by  an  actual  delivery  and  continued  change  of  possession  of 
the  property  until  it  was  converted  into  money  and  applied  in  pay- 
ment of  two  several  notes,  it  was  not  necessary  that  the  instrument 
which  created  that  lien  should  be  recorded,  under  the  act  of  1833.  It 
is  the  duty  of  the  court  to  give  such  a  construction  to  the  language 
of  a  written  instrument  as  to  carry  into  effect  the  intention  of  the 
parties,  so  far  as  that  intention  can  be  collected  from  the  whole  in- 
strument and  the  situation  of  the  parties  at  the  time  the  writing  was 
executed.  And  I  think  no  one  who  reads  this  special  clause,  in  con- 
nection with  the  evidence,  or  rather  the  admissions,  of  extrinsic 
facts  which  are  proper  to  be  taken  into  consideration,  can  believe  that 
Alvord  did  not  intend  to  give  to  the  endorsers  of  the  $1,800  note, 
and  to  Meads,  as  the  endorser  of  the  Rector  note  and  other  notes 
which  he  might  thereafter  endorse,  a  beneficial  interest  in  the  execu- 
tion of  this  power,  for  their  security  and  indemnity.  It  clearly  shows 
that  Alvord  anticipated  that  it  would  probably  be  necessary  for  Meads 
to  incur  further  responsibility  as  his  endorser,  in  the  discharge  of 
the  duties  of  his  agency,  and  that  something  more  than  an  ordi- 
nary power  of  attorney  was  necessary  to  protect  him  from  loss.  And 
as  the  possession  of  the  property  was  delivered  to  Mead,  in  connec- 


I 


.""EVnCAEr.E    -^.GENCTES.  77^5 


l'c''l'i  i '.    ' -^    :;'.'<%<::     \.j    iii?j;';m^    ty  i     ii.,    j '  u     i  i    ;j;.".'.^-.  ■  ;■  -ii 

o.  !  If  and  the  other  endorsers,  the  i  •:  be  consid- 


!'    sarvivev 

.    ,.:ire,  i^   ^ 
the  Unit ' 
actual  pl^ 
execute.''! 

Rousmanier,  8 
■rty.    But  a  ''" 
laintiff  to  ti- 

manier.   i : 
Chief  Tiistict 

r'lvery  ot 

;  ■               iti  thnr 

^    ■   -d,   a,    ;. 

-  power 

-.    And  . 

rent  if  i 

tiie  vessels  ^ 

case  the  cot; 

i:ree  of  the  v- 

■.st  a  mi. 

re  t.^  in 

•..':C 

X.h<:  i  'X--:  -  ''■■ 

:-^.i]     il.'iblluil  ■ 

;•    ver  of  att> 

'■'ive  to  i 
to  hi<;  ]< 

\Vli 

of  • 


ter:m  ; 


Vaa  Vechten,  and  given  to  the  bank  :  .\    And 

a.s  the  bank  required  further  security,  T.  :  on  the 

note  as  a  subsequent  endorser.    Decembej  lote  of 

Rector  became  due,  Meads  filled  up  anotke.  '^  Al- 

vord's  blank  signatures,  and  endorsed  the  same  e  li, 

in  renewal  of  the  old  note ;  which  note  was  a'i  in 

ninety  days.    Both  of  these  renewal  notes  were  r  >r 

non~payment,  and  wer       '  taken  up  b}'  -•'-<'■ 

After  the  death  of  Al'  daimed  a  hti  rtv 

and  assets  of  .the  cabinet-  -usiness  in  his  ii.  i  e- 

sponsibilities  which  he  ha:  .  -d,  as  endorser  U'^^-  '.es 

or  otherwise;  and  he  contiriued  in  the  possession  and  ct  .iie 

prop)erty,  "wath  the  assent  of  the  administratrix,  until  /x^.i...  .iijS, 
when  the  property  was  sold  at  auction,  under  his  direction,  and  with 
her  assent.  The  amount  of  the  notes  was  retained  by  him  out  of  the 
proceeds  of  the  pale,  and  the  residue  of  the  proceeds  was  accounted 
for  to  the  adm  -n:. 

The  Chak  The  personal  mortgage  to  Whitney  not  being 

filed  till  after  \lvord,  and  not  being  accompanied  by  an 

immediate  de-  ^,v^;itin'' -'  '■-• --session  of  the  property,  it  may 

be  doubtful  it  was  >  to  give  Whitney,  who  was 

"      '         '  '  '-     '■  endor.ic;i-  (.)[  the  note  of  $i,8oo,  a  prefer- 

other  creditors  of  Alvord.  This  case, 
uestion;  as  I  am  satisfied  that  an 
IS  created  by  the  special  clause  in 
$t,8oo  note  and  to  notes  drawn  by 
And  as  that  instrument  was  accom- 
:id  continued  change  of  possession  of 
■■':']  into  money  and  applied  in  pay- 
•!0t  necessary  that  the  instrument 
■corded,  under  the  act  of  1833.  It 
h  a  construction  to  the  language 
N  into  effect  the  intention  of  the 
A  be  collected  from  the  whole  in- 
.le  parties  at  the  time  the  wridng  was 
'  '^o  reads  this  special  clause  •  ■  ■^^- 
'ner  the  admissions,  of 
"deration,  cai.  ' 
."sers  of  the  to. 


zhe  power  m 
Alvord  and  en  .  .,,.  . 
panied  by  an  actual  d^ 
the  property  until  it  wa:^  ■ 
ment  of  two  several  note^ 
which  created  that  lien  sh 
is  the  duty  of  the  cotirt  ♦"• . 
of  a  written  instr 
parties,  so  far  as  . 
strument  and  the  situo 
executed.  And  I  think  ... 
nection  with  the  evidenc 
facts  which  are  proper  to  ! 
Alvord  did  not  intend  to 
and  '  '.  as  the  endor.si/L  ol  the  Ivector  note 

whic:  lit  thereafter  enddrse,  a  beneficial  intet 

tion  of  this  power,  for  their  security  and  indemnity, 
that  Alvord  anticipated  that  it  would  probably  be  nee 
to  incur  further  responsibiHty  as  his. endorser,  in 
the  duties  of  his  agency,  and  that  something  ■"" 
nary  power  of  attorney  was  necessarv  to  protec 
'  e  possession  of  the  proper  'elivered 


.  snows 
'  Meads 
iirge  of 
.1  an  ordi- 
11  loss.  And 
oonnec- 


I 


IRREVOCABLE   AGENCIES.  779 

tion  with  this  power  to  dispose  of  it,  for  the  security  and  protection 
of  himself  and  the  other  endorsers,  the  property  must  be  consid- 
ered as  pledged  to  him  for  that  purpose.  The  power  to  sell,  there- 
fore, was  coupled  with  an  interest  in  the  property  thus  pledged, 
and  survived.  Bergen  v.  Bennett,  i  Cai.  Cas.  in  Err.  i  ;  Raymond  v. 
Squire,  ii  Johns.  53.  In  the  case  decided  by  the  supreme  court  of 
the  United  States  (Hunt  v.  Rousmanier,  8  Wheat.  174)  there  was  no 
actual  pledge  of  the  property.  But  a  mere  power  of  attorney  was 
executed  authorizing  the  plaintiff  to  transfer  it  in  the  name  of  Rous- 
manier. It  was  upon  that  ground,  as  I  understand  the  case,  that 
Chief  Justice  Marshall  held  that  the  power  was  not  coupled  with  any 
interest  in  the  vessels.  And  I  presume  his  opinion  upon  that  point 
would  have  been  different  if  the  power  had  been  accompanied  by  an 
actual  delivery  of  the  vessels  as  a  pledge  for  the  payment  of  the  debt. 
But  even  in  that  case  the  court  protected  the  rights  of  Hunt  as  an 
equitable  mortgagee  of  the  vessels,  though  the  decision  was  placed 
on  the  debatable  ground  that  a  party  may  be  relieved  in  equity 
against  a  mistake  of  law  merely. 

Being  satisfied  that  Meads  had  a  lien  upon  the  property  in  his 
hands,  and  a  right  to  retain  for  the  amount  of  these  notes,  under 
the  special  clause  in  the  written  power  executed  by  Alvord,  it  is 
not  necessary  to  inquire  whether  he  is  not  also  to  be  considered  as 
the  factor  of  Alvord  so  as  to  entitle  him  to  retain  for  his  advances 
and  liabilities,  entirely  independent  of  this  special  provision  in  the 
power  of  attorney  to  him.  If  the  arrangement  between  Alvord  and 
Meads  gave  to  the  latter  the  character  of  a  factor,  there  can  be  no 
doubt  as  to  his  lien  upon  the  property  in  his  hands,  and  his  right  to 
retain  for  all  his  advances  and  responsibilities  in  the  business  with 
which  he  was  entrusted  by  his  principal.  Although  it  was  doubted 
previous  to  the  case  of  Kruger  v.  Wilcox,  Amb.  252,  it  is  now  well 
settled  that  a  factor  has  a  lien  and  may  retain  for  a  general  balance, 
including  responsibilities  incurred  in  the  execution  of  his  agency. 
Whit.  Lien  103;  2  Kent.  Com.  640;  Story  Ag.,  §  34.  And  the  case 
of  Foxcraft  v.  Wood,  4  Russ.  487,  was  probably  decided  upon  the 
ground  that  the  arrangement  under  which  the  business  at  Birming- 
ham was  carried  on  constituted  Foxcraft  the  factor  of  Lanning,  al- 
though he  received  a  fixed  salary  instead  of  the  usual  mercantile  com- 
mission for  his  services. 

The  decision  of  the  master  was  right  in  allowing  to  the  adminis- 
tratrix the  amount  retained  by  Meads  for  the  two  notes.  The  excep- 
tions are  therefore  overruled,  with  costs,  and  the  report  of  the  mas- 
ter is  confirmed.^ 

^  A  power  of  attorney  read :  "For  value  received,  we  hereby  sell,  assign,  and 
transfer  to  A  the  shares  of  stock  within  mentioned,  and  hereby  authorize  him 
to  make  the  necessary  transfer  on  the  books  of  the  corporation."  It  was  held 
that  this  power  was  coupled  with  an  interest,  and  could  not  be  revoked  by  the 
donor  of  the  power.   Skinner  v.  Fort  Wayne,  etc.,  R.  R.,  58  Fed.  Rep.  55. 


78o 


TERMINATION    OF   AGENCY. 


In  an  agreement  giving  to  an  agent  the  exclusive  power  to  sell  certain  land 
it  v^^as  stipulated  that  he  was  to  receive  as  compensation  for  his  services  "an 
undivided  one-fourth  interest  in  the  proceeds  of  sale  when  sold  as  aforesaid." 
It  was  held  that  this  agency  may  be  revoked  by  the  principal.  Chambers  v. 
Seay,  TT,  Ala.  Z7^-  In  page  378,  Somerville,  J.,  said:  "To  be  irrevocable,  it 
seems  now  well  settled,  that  the  power  conferred  must  create  an  interest  in 
the  thing  itself,  or  in  the  property  which  is  the  subject  of  the  power.  In  other 
words  'the  power  and  estate  must  be  united  and  co-existent,'  and,  possibly, 
of  such  a  nature  that  the  power  would  survive  the  principal  in  the  event  of  the 
latter's  death,  so  as  to  be  capable  of  execution  in  the  name  of  the  agent." 


ACCEPTANCE, 


AC'. 


ACKi\C 


AO 


TFPMIXATT-r 


OF   AGENi 


th 


•!S  to  receive  : 
.    .,.,,.  ,       .Lcit  in  the  •procc-  .. 
'hat  this  agency  may  be  revoked  by  < 
1.  372.    In  page  378.  Somerville,  J.,  sai 
..ell  settled,  that  the  power  conferred  mui-. 
.If,  or  in  the  property  which  is  the  subject  > 
rdi    Uic  power  and  estate  must  be  united  and  co-e 
such  a  nature  that  the  power  would  survive  the  princi 
tor's  death,  so  as  to  be  capable  of  execution  in  the  name 


INDEX 

[References  are  to  Pages.] 

A 
ACCEPTANCE, 

delegation  of  authority  to  accept  negotiable  paper,  173. 

of  authority  by  agent,  101. 

of  negotiable  paper,  authority  to  make,  114. 

ACCOUNTING, 

as  affected  by  receipt  of  money  on  illegal  contract,  723. 
demand  as  condition  precedent,  726. 
duty  of  agent,  723,  726. 

ACKNOWLEDGMENT, 
by  corporation,  49. 

ACQUIESCENCE, 

ratification  of  unauthorized  negotiable  paper,  361. 

ACTIONS, 

accounting,  demand  as  condition  precedent,  726. 

against  carrier  when  consignor  and  consignee  are  one,  494. 

by  agent  against  third  persons,  494,  499,  503,  506,  508. 

by  undisclosed  principal  in  his  own  name,  449. 

by  undisclosed  principal  on  negotiable  paper,  441,  442. 

by  undisclosed  principal  on  sealed  instrument,  440. 

by  undisclosed  principal  on  simple  contract,  442,  471. 

demand    as    condition    precedent    to,    for    property    lost    by   gratuitous 

bailee,  733. 
for  breach  of  contract  as  bar  to  action  for  wages,  537. 
on  the  case  for  deceit  to  enforce  personal  liability  of  agent,  406. 
on  the  case  on  implied  promise  to  indemnify  agent,  559. 
ratification  by  bringing  assumpsit  on  contract,  349. 
trover  by  principal  against  agent,  677,  686. 

ACT  OF  GOD, 

compensation  of  agent  following  breach    of    contract    of    employment, 
545,  550,  553. 

781 


782  INDEX. 

[References  arc  to  PagesA 

ACTS, 

of  agent,  effect  of  statutory  provisions,  53. 
what  can  be  done  by  agent,  53,  56,  57,  60. 

ADMISSIONS, 

See  Declarations  and  Admissions  of  Agent. 

ADOPTION, 

acts  of  agent  by  parol,  82. 

by  principal  of  tort  of  agent,  Z27. 

contract  by  corporation,  84. 

criminal  act,  334. 

of  forged  instrument,  effect,  331. 

AFFREIGHTMENT, 

contract  as  binding  upon  foreign  principal,  388. 

AGENCY, 

as  differing  from  service,  7. 

assumption  by  one  contracting  party  for  other,  56. 

assumption  of  risk  of  revocation,  751. 

burden  of  proving,  95,  113. 

by  estoppel,  102,  103,  219,  228. 

by  implication,  3. 

common-law  doctrine  as  applied  to  partnerships,  82. 

compensaiion  of  agent  upon  revocation,  746. 

construction  of,  as  being  coupled  with  interest,  77?>. 

coupled  with  interest  as  being  irrevocable,  770,  776. 

creation,  acceptance  by  agent,  101. 

creation  by  express  authority,  88,  90,  91. 

creation  by  implied  authority,  95,  97,  99. 

creation,  in  general,  75,  81,  85,  88,  90,  95,  97,  99,  101,  102,  103. 

creation,  necessity  of  consent  of  agent,  101. 

creation  of  exclusive,  92. 

creation,  to  execute  sealed  instruments,  75,  81,  85. 

death  of  principal  as  revocation,  760,  761,  764,  767,  771. 

death  of  principal  as  revoking  irrevocable,  770. 

delegation,  in  general,  164,  166,  169,  172,  173,  175,  177,  178. 

duty  of  agent  to  disclose  if  he  would  avoid  personal  liability,  519. 

effect  and  scope  of  written,  as  question  for  court,  108. 

effect  of  undiscovered,  213. 

establishment  by  declarations  of  agent,  190. 

evidence  as  to  notice  of  revocation,  759. 

evidence  as  to  revocation,  750. 

evidence  insufficient  to  establish,  477. 

evidence  to  establish,  42,  96. 


INDEX.  783 

{References  are  to  Pages.^ 

AGENCY— Continued. 

executed  by  sub-agent,  171. 

form  and  requisites  of  revocation,  749. 

for  single  woman  as  terminated  by  marriage,  767. 

knowledge  of  agent  of  revocation,  761. 

liability  of  principal  to  agent  upon  revocation,  755. 

liability   of  principal  to   third  persons   for   act  of  agent   following 

revocation,  750,  757,  760,  761,  764. 
mutuality  of  contract  as  essential  to  non-revocability,  748. 
nature  and  kinds,  1,  5,  11. 
notice  of  revocation,  747,  750,  757. 
operation  and  effect  of  revocation,  751. 
parol  revocation,  749. 
ratification,  337. 

ratification  of  act  of  agent  following  revocation,  752. 
real,  102. 

revival  of  terminated,  prior,  743. 
revocation  as  implied  from  circumstances,  749. 
revoked  by  insanity  of  principal,  768. 
right  to  revoke,  in  general,  744,  771. 
right  to  revoke,  to  sell  land,  746. 
sale  by  principal  as  revocation  of,  to  sell,  748. 
sale  of  property  as  evidence  of  revocation,  750. 
suspension,  766. 

terminated  by  execution  of  power,  776. 

terminated  by  senseless  condition  of  principal  in  extremis,  766. 
to  sell,  right  tO'  revoke  as  affected  by  "exclusive"  or  "irrevocable" 

grant  of  power,  748. 
validity  of  payment  to  agent  after  revocation,  761. 
when  irrevocable,  771,  775. 

AGENT, 

ability  of  principal  to  act  through  agent,  40. 

acceptance  of  authority,  101. 

acts  as  establishing  authority,  96. 

appointment  by  infant,  340. 

as  principal,  40. 

burden  of  proving  character,  108. 

defined,  1. 

distinguished  from  servant,  5,  7,  436. 

general  and  special  defined,  198. 

mere  request  as  not  constituting  person  gratuitous,  736. 

notice  and  knowledge,  293,  296,  299,  300,  304,  307,  310,  313. 

of  seller  as  purchaser  or  agent  of  purchaser,  752. 

one  contracting  party  assuming  to  act  for  the  other,  56. 


784  INDEX. 

[References  are  to  Pages.] 

AGENT — Contimicd. 

one  person  agent  of  both  parties,  708. 

personal  communication  unnecessary  to  make  appointment  illegal,  Z7. 

ratification  of  act  done  following  revocation  of  authority,  752. 

ratification  of  illegal  appointment,  2)7. 

seller  as  agent  of  buyer  following  latter's  default,  100. 

"servant,"  interchangeable  term,  7. 

special,  general,  and  universal,  11. 

what  acts  can  be  done  by,  53,  56,  57,  60. 

who  can  be,  39,  41,  42,  44,  46,  50. 

who  is  an,  3. 

ALIENS, 

as  attorneys  in  fact,  42. 

APPOINTMENT, 

contract  for  illegal  purposes,  61,  66,  71. 

ASSENT, 

to  broker  acting  for  both  parties  to  transaction  as  affecting  ri^ht  to 
compensation,  57. 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS, 
authority  to  execute,  118. 

ASSIGNMENTS, 

ratification  of  invalid  contract,  358. 

ASSUMPSIT, 

against  agent  executing  unauthorized  contract,  396. 
on  implied  promise  to  indemnify  agent,  559. 
ratification  of  act  of  agent  by  bringing,  349. 

ASSUMPTION  OF  RISK, 

by  person  dealing  with  agent,  of  revocation  of  latter's  authority,  751. 
by  servant,  633,  639,  644,  645,  650,  653,  665,  669. 

ATTACHMENT, 

notice  to  attaching  officer  as  notice  to  plaintiff,  302. 

ATTAINTED  PERSONS, 
as  attorneys  in  fact,  42. 

ATTORNEYS, 

.See  Attorneys  at  Law,  Attorneys  in  Fact. 

ATTORNEYS  AT  LAW, 

authority  to  execute  specialty,  83. 


I 


INDEX.  785 

[References  are  to  Pages.] 

ATTORNEYS  AT  LAW— Continued. 

authority  to  prepare,  sign  and  present  liquor  license  remonstrance,  167. 

compensation  of  solicitor  empowered  by  married  woman,  23. 

compensation  under  contract  for  lobbying,  61. 

contract  to   influence  governmental  acts,   70. 

contract  to  place  facts  of  case  before  government  officers,  69. 

duty  to  client  as  to  use  of  diligence  and  skill,  721. 

fee  as  "current  wages,"  526. 

fee  contingent  upon  success  in  influencing  governmental  acts,  70. 

fee  for  voluntary  services,  531. 

fixed  fees  for  influencing  governmental  acts,  70. 

general  authority  from  general  employment,  233. 

implied  representations  as  to  knowledge  and  skill,  721. 

liability  for  mistakes  as  to  law,  721. 

liability  for  want  of  professional  skill  and  diligence,  or  negligent  ad- 
vice, 719,  721. 

power  to  employ  to  prosecute  suit,  by  agents  of  town,  177. 

right  of  client  to  sell  to,  703. 
ATTORNEYS  IN  FACT, 

aliens,  42. 

appointment  by  infant,  340. 

attainted  persons,  42. 

authority  to  sign  liquor  remonstrance,  166. 

corporation  as,  46. 

deed  of,  when  valid,  131. 

husband  for  wife,  75. 

infant,  42. 

modes  and  means  of  executing  authority  to  sell  land,  184. 

personal  liability  in  executing  unauthorized  bond,  392. 

to  execute  negotiable  paper,  122. 

validity  of  deeds,  131. 

AUCTIONS, 

duty  of  purchaser  to  inquire  as  to  seller's  right  to  sell,  216. 

AUTHORITY, 

acceptance  by  agent,  101. 

acts  of  agent  as  establishing,  96. 

administrator  to  make  covenants  in  sale  of  land  under  judicial  decree, 

129. 
agents  of  town  appointed  to  prosecute  a  suit,  177. 
apparent  as  real,  229,  233,  477. 
assumption  of  risk  of  revocation,  751. 
brokers,  181. 
burden  of  proving,  113. 
50 — Reinhard  Cases. 


786  INDEX. 

[References  are  to  Pages.'\ 

AVTHORITY— Continued. 
by  estoppel,  219,  228. 

character  of  agent,  burden  of  proving,  108. 
compensation  of  agent  upon  revocation,  746. 
conferred  by  power  of  attorney,  210. 
consent   of  principal   to    delegation,   178. 
construction  as  being  coupled  v^^ith  interest,  778. 
creation  by  agent,  95. 
creation  of  agency  by  express,  88,  90,  91. 
creation  of  agency  by  implied,  95,  97,  99. 

creation  of  agency  to  execute  sealed  instruments,  75,  81,  85. 
death  of  principal  as  revoking  irrevocable,  770. 
delegation  by  agents  of  town  to  prosecute  suit,  177. 
delegation  by  bank  to  collect  negotiable  paper,  178. 
delegation  in  general,  164,  166,  169,  172,  173,  175,  177,  178. 
delegation  to  accept  negotiable  paper,  173. 
delegation  to  indorse  negotiable  paper,  185. 
delegation  to  sign  liquor  license  remonstrance,   166. 
delegation  with  reference  to  bill  of  exceptions,  169. 
duty,  to  ascertain  in  general,  89,  113,  206. 
duty  to  ascertain  character  and  extent  of  agency,  123. 
duty  to  ascertain  extent  and  limit,  of  agent  under  written  power,  210. 
duty  to  ascertain,  of  agent  acceptor,  116. 
duty  to  ascertain,  of  special  agent,  214,  233,  482. 
duty  to  ascertain  powers  of  married  woman's  agent,  23. 
efifect  of  exceeding,  88. 

effect  of  revocation  as  to  third  persons,  757. 
effect  of  secret  instructions,  222,  226. 

effect  of  undisclosed  limitations,  of  general  freight  agent,  220. 
established  by  declarations  of  agent,  190. 
estoppel  to  deny,  102,  103,  219,  228. 
evidence  as  to  notice  of  revocation,  759. 
evidence  as  to  revocation,  750. 
evidence  to  establish  character,  108. 

evidence  to  establish,  to  execute  accommodation  paper,   110. 
execution  as  to  bills  and  notes,  136. 
execution  as  to  sealed  instruments,  124. 
execution  of  agency  by  corporation  as  delegation,  49. 
extent  under  power  of  attorney,  how  settled,  183. 
factor  to  sell  on  credit,  224. 
following  from  acts  of  principal,  222. 
form  and  requisites  of  revocation,  749. 

from  undisclosed  principal  to  sell  as,  to  receive  payment,  461. 
full,  as  implied  from  custom  of  buying  and  selling,  228. 
general  agent,  as  limited  by  private  instructions,  215. 


INDEX.  787 

[References  are  to  Pages.] 

AUTHORITY— Continued. 

general  agent,  scope,  220. 

general  agent  to  execute  accommodation  paper,  110. 

general  agent  to  make  accommodation  acceptance,  188. 

given  agent  by  parol,  82. 

how  determined,  192. 

implications  as  question  for  jury,  109. 

implications  from  testimony  of  witnesses  as  question  for  jury,  109. 

implications  in  general,  188. 

implied  as  to  special  agent,  188. 

implied,  from  what  deducible,  214. 

implied  general,  98. 

implied,  in  salesman  to  receive  payment,  how  shown,  222. 

implied  of  general  freight  agent  to  promise  cars,  216. 

implied  to  fix  compensation  of  sub-agent,  190. 

implied,  to  receive  payment,  202,  206. 

import  of,  general,  108. 

intention  to  execute,  to  appear  on  face  of  instrument,  134,  140. 

knowledge  as  to  limitations  upon,  as  question  for  jury,  220. 

knowledge  of  agent  of  revocation,  761. 

liability  in  damages  of  principal  to  agent  upon  revocation,  755. 

liability  of  principal   for  act  of  agent  following   revocation,  750,  760. 

761,  764. 
modes  and  means  of  executing,  184. 

mutuality  of  contract  as  essential  to  non-revocability,  748. 
nature  of  express,  88. 
nature  of,  implied,  95. 
notice  of  revocation,  747,  750,  757. 
operation  and  effect  of  revocation,  751. 
parol  revocation,  749. 
parol,  to  execute  deed,  87. 

power  to  delegate,  implied  from  circumstances,  175. 
presumptions  as  to,  to  buy  from,  to  sell,  228. 
railroad  brakeman  to  remove  trespasser,  275. 
railroad  conductor,  in  general,  192. 

railroad  conductor  to  employ  surgical  aid  for  injured  brakeman,  192. 
railroad  conductor  to  remove  trespasser,  277. 
ratification  of  act  of  agent  done  following  revocation,  752. 
revocability,  in  general,  744,  771. 
revocability,  to  sell  land,  746. 
revocation  as  implied  from  circumstances,  749. 
revoked  by  death  of  principal,  760,  761,  764,  767,  771. 
right  of  third  person  to  rely  upon  agent's  apparent,  200. 
rules  of  construction,  114. 
sale  by  principal  as  revocation  of,  to  sell,  748. 


788  INDEX. 

[References  are  to  Pages.] 

AUTHORITY— Continued. 

sale  of  property  as  evidence  of  revocation,  750. 

salesman  to  receive  payment  for  principal,  221. 

special  agent,  effect  of  private  instructions,  215. 

stockholders  to  employ  agents,  190. 

suspension,  766. 

terminated  by  execution  of  power,  776. 

terminated  by  insanity  of  principal,  768. 

terminated  by  senseless  condition  of  principal^  in  extremis,  766. 

to  accept  bills  and  notes,  114. 

to  act  for  single  woman  as  terminated  by  marriage,  767. 

to  bind  municipal  corporation  by  sealed  instrument,  83. 

to  bind  principal  by  instrument  in  writing,  87. 

to  bind  principal  by  sealed  instrument,  83,  392. 

to  collect  debts  as,  to  give  notes,  393. 

to  convey  land,  construction,  121. 

to  draw  bill,  207. 

to  employ  sub-agent,  172,  176. 

to  execute  assignment  for  benefit  of  creditors,  118. 

to  execute  bills  and  notes,  122. 

to  execute  bond,  burden  of  proving,  393. 

to  execute  mortgage  and  mortgage  note,  132. 

to  execute  sealed  instrument,  75,  76,  82. 

to  lease  as,  to  make  representations  regarding  property,  246. 

to  make  contract  for  corporation,  84. 

to  make  covenants  in  sale  of  land,  183. 

to  make  warranties,  how  arising,  245. 

to  sell,  delegation  of,  by  factor,  169. 

to  sell  land,  conferring  of,  91. 

to  sell,  right  to  revoke  as  affected  by  "exclusive"  or  "irrevocable"  grant 

of  power,  748. 
to  subject  principal  to  action  on  collateral  contract  in  regard  to  bill 

drawn  by  agent,  207. 
under  general  employment  in  specific  capacity,  233. 
under  power  of  attorney  to  sign  liquor  license  remonstrance,  166. 
validity  of  pajanent  to  agent  after  revocation,  761. 
what,  can  be  delegated,  172. 
what,  cannot  be  delegated,  164. 

what  constitutes  delegation  of,  to  indorse  bills  and  notes,  186. 
when  implied,  280. 
wife  to  employ  servant  by  contract  under  seal,  84. 


INDEX.  789 

[References  are  to  Pages.l 

B 

BAILMENT, 

burden  of  proving  liability  of  bailee  to  bailor  for  gross  negligence,  732, 
suit  by  undisclosed  bailor  in  his  own  name,  452. 

BANKS  AND  BANKING, 

duty  of  gratuitous  banker  to  client  to  exercise  diligence,  etc.,  730. 
knowledge  of  vice-president  as  knowledge  of  bank,  310. 
liability  of  gratuitous  officers  of  bank  for  negligence,  etc.,  737. 
notice  to  or  knowledge  of  director  or  trustee,  300,  307. 
parol  evidence  to  establish  ownership  in  bank  of  promissory  note  pay- 
able to  cashier,  444. 
right  of  bank  to  delegate  authority  to  collect  negotiable  paper,  178. 

BILL  OF  EXCEPTIONS, 

delegation  by  judge  of  authority  as  regards,  169. 

BILLS  AND  NOTES, 

acceptance  by  procuration,  114. 

action  by  undisclosed  principal,  441,  442. 

authority  of  general  agent  to  execute  accommodation  paper,  110 

authority  to  accept,  114. 

authority  to  collect  debts  as  authority  to  execute,  393. 

authority  to  draw,  207. 

authority  to  execute  mortgage  note,  132. 

authority  to  make  purchase  as  authority  to  execute,  468. 

delegation  of  authority  to  accept,  173. 

delegation  of  authority  to  indorse,  185. 

duty  of  agent  receiving,  for  collection,  710. 

estoppel  of  principal  by  indorsement  of  sub-agent,  186. 

execution  by  agent,  123. 

execution  of  authority  as  to,  136. 

intent  to  execute  authority  must  appear  on  face,  140. 

liability  of  agent  when  intent  to  bind  principal  is  clear,  148. 

liability  of  undisclosed  principal,  465. 

negotiable  paper  in  agent's  name,  138. 

operation  of  unauthorized  paper  in  principal's  name  per  that  of  agent, 

378. 
parol  evidence  as  to  intent  in  signing  negotiable  paper,  142,  149. 
parol  evidence  to  establish  ownership  in  undisclosed  principal,  441,  444. 
power  of  attorney  to  execute,  122. 
power  of  married  women  to  execute,  22. 
presumption  in  regard  to  those  of  married  woman,  22. 
principal  or  agent  liable,  140,  149. 
ratification  by  one  partner  of  paper  executed  in  firm  name  by  other 

partner,  366. 


790  INDEX. 

[References  are  to  Pages.] 

BILLS  AND  NOTES— ConfmM^d. 

ratification  of  forged  signature,  328,  332,  336. 

ratification  of  unauthorized  negotiable  paper  signed  in  principal's  name 

per  that  of  agent,  378. 
ratification  of  unauthorized  signature  by  acquiescence,  361. 
relevancy  of  testimony  as  to  intent  in  signing,  as  being  discretionary 

with  court,  144. 
validity  for  unauthorized  sale  by  agent,  326. 
what  constitutes  delegation  of  authority  to  indorse,  186. 
wife  as  agent  of  husband  in  execution  of  accommodation  paper,  109. 

BILLS  OF  LADING, 

liability  of  railroad  on  fraudulent  and  collusive,  248,  255. 
nature,  252,  256. 

BONDS, 

personal  liability  of  agent  in  executing  unauthorized,  392. 

BROKER, 

apparent  authority  as  real  authority,  229. 

as  middleman,  61,  535. 

authority,  in  general,  181. 

compensation  from  both  parties  to  transaction,  57,  60,  708. 

contract,  529. 

failure  to  obtain  license,  50. 

general  authority  from  general  employment,  233. 

personal  liability  for  purchase  money,  522. 

possession  as  implied  authority  to  pledge,  230. 

to  procure  loan,  when  entitled  to  commission,  534. 

voluntary  broker  as  not  entitled  to  commissions,  528. 

when  entitled  to  commissions,  in  general,  527. 

BURDEN  OF  PROOF, 
agency,  95. 

authority,  in  general,  113. 
authority  to  execute  bond,  393. 
character  of  agent's  authority,  108. 
fairness  of  questioned  sale  by  agent,  702. 
liability  of  gratuitous  bailee  to  bailor  for  negligence,  732. 
liability  of  principal  on  simple  contract  signed  in  agent's  name,  162. 
negligence  on  part  of  master,  641. 
ratification,  in  general,  346. 
that  employe  could  have  obtained  higher  wages  than  he  did  following 

breach  of  contract,  536. 
that  employe  could  not  obtain  employment  after  breach  of  contract,  536. 


INDEX.  ygi 

[References  are  to  Pages.] 

C 
CARRIERS, 

action  against,  when  consignor  and  consignee  are  one,  494. 
liability  on  fraudulent  and  collusive  bill  of  lading,  248,  255. 

CHANCERY, 

bill  signed  by  wife  for  husband,  75. 

CLUBS, 

president  as  personally  liable  for  wrongful  act,  418. 

COLLUSION, 

See  Bills  of  Lading;  Fraud;  Liability  of  Principal  to  Third  Persons. 

COMMISSION  MERCHANTS, 

See  Factors. 
COMMISSIONS, 

See  Compensation  of  Agent. 
out  of  proceeds  of  sale  to  be  made  as  "interest,"  748. 

COMPENSATION  OF  AGENT, 

broker  acting  for  both  parties  to  transaction,  57,  60. 

by  administrator  of  employer  upon  breaching  contract  of  agency,  550. 

contingent  upon  success  in  influencing  governmental  acts,  70. 

death  of  agent  as  barring  recovery  for  services  rendered  under  contract 

of  employment  thereby  breached,  553. 
death  of  principal  as  terminating  right  under  contract  of  employment, 

550. 
duty  of  principal,  in  general,  526,  527,  531,  534. 
failure  of  broker  to  obtain  license,  50. 

fixed,  for  professional  services  in  influencing  governmental  acts,  70. 
following  breach  of  contract  of  employment  by  act  of  God,  545,  550,  553. 
for  influencing  location  of  government  office,  66. 
for  influencing  location  of  railroad  station,  67. 
for  influencing  pardon  of  another,  71. 
for  influencing  those  in  public  service,  68. 
for  lobbying,  61. 

for  placing  facts  of  case  before  government  officers,  69. 
from  both  parties  to  transaction,  708. 

implied  authority  of  agent  to  fix  compensation  of  sub-agent,  190. 
of  attorney  at  law  as  "current  wages,"  526. 
right  of  agent  to  sue  third  person  for,  lost  by  third  person's  breach  of 

contract,  503. 
solicitor  emploj'ed  by  married  woman,  23. 
under  contract  of  doubtful  nature,  93. 
upon  his  breach  of  contract  of  employment,  543. 


792  INDEX. 

[References  are  to  Pages.] 

COMPENSATION  OF  AGE^T— Continued. 

upon  revocation  of  authority  by  principal,  746. 

voluntary  service  as  calling  for,  527,  531. 

when  agency  has  been  prematurely  terminated»  535,  537,  539,  543,  545, 

550,  553. 
when  agent  has  breached  contract  of  employment,  545. 

COMPETENCY, 

of  agent,  39,  41,  42,  44,  46,  50. 

of  principal,  15,  18,  21,  22,  23,  25,  27,  34,  36,  38,  39. 

CONDITION    PRECEDENT. 

See  Actions. 

CONSENT, 

of  agent  necessary  to  creation  of  agency,  101. 

CONSIDERATION, 

of  transaction  with  unauthorized  agent,  408. 

CONSIGNOR  AND  CONSIGNEE, 

action  against  carrier  when  one  person  is  both,  494. 

CONSTRUCTION, 

See  Interpretation  and  Construction. 

CONTINGENT  FEES, 

See  Attorneys   at  Law,  Compensation   of  Agent. 

CONTRACT, 

See  Authority;  Bills  and  Notes;  Liability  of  Agent  to  Principal;  Lia- 
bility of  Agent  to  Third  Persons;   Liability  of  Principal  to  Agent; 
Liability  of  Principal  to  Third  Persons  ;  Sealed  Instruments. 
appointment  for  illegal  purposes,  61,  66,  71. 
capable  of  ratification,  323,  324,  326,  328,  332,  336,  337. 
construction  of  sealed,  as  simple,  462. 
construed  as  agency  rather  than  option,  93. 
execution  of  simple,  157,  158. 

liability  of  undisclosed  principal  upon  written  parol  executory,  465. 
made  by  person  assuming  to  act  as  agent,  validity,  397. 
must  be  ratified  or  repudiated  as  entirety,  349,  364. 
of  agent  as  that  of  principal,  449. 
of  infant  through  agent,  15,  414. 
of  infant,  void  and  voidable,  16-18. 
of  lunatic,  27. 
of  married  woman,  22. 


INDEX.  793 

[References  are  to  Pages.] 

CONTRACT— Continued. 

power  of  married  woman  to  execute  contracts  relating  to  her  busi- 
ness, 25. 

ratification  of  infant's  partner's,  18. 

simple,  burden  of  proving  principal  liable  when  signed  in  agent's 
name,  162. 

simple,  parol  evidence  to  show  intent  of  agent  in  signing  in  his  own 
name,  155. 

simple,  signed  by  agent  in  his  own  name,  137. 

to  assist  property  owner  in  fitting  up  or  purchasing  building  to  be 
given  to  government  for  public  use,  70. 

CONTRIBUTORY  NEGLIGENCE, 

See  Negligence. 

CORPORATIONS, 

acknowledgment,  49. 

acting  impossible  except  by  agents,  49. 

act  of  agent  without  scope  of  authority  as  affecting  liability  for  his 

tort,  275,  279. 
act  of  officers  as  act  of,  49. 
adoption  of  contract,  84. 
as  agent,  48. 
as  attorney  in  fact,  46. 
authority  to  make  contract  for,  84. 
employment  of  surgical  aid   for  injured  employe  as  acknowledgment 

of  liability  to  such  one,  200. 
estoppel  by  acts  of  one  held  out  as  agent,  219. 
execution  of  agency  as  involving  delegation  of  authority,  49. 
general  agent,  as  corporation  itself,  195. 
knowledge  of  officers,  310. 
liability  as  undisclosed  principal,  468. 

liability  for  act  of  agent  held  forth  as  general  agent,  219. 
liability  for  compensation  of  sub-agent  authorized  by  stockholders,  190. 
liability  for  false  representations  of  officers,  241. 
liability  for  fraud  of  agents,  309. 

liability  for  surgical  aid  rendered  injured  employes,  192. 
liability  of  gratuitous  officers  for  negligence,  etc.,  737. 
liability  when  agent  has  colluded  with  third  persons,  313. 
negligence  of  directors,  635. 

noticeto  or  knowledge  of  trustee  or  director,  300. 
parol  evidence  to  establish   ownership  of  promissory  note  payable  to 

officer,  444. 
personal  liability  of  individuals  for  tort  as  not  to  be  predicated  of  their 

being  directors,  officers  or  stockholders  in  domestic,  426. 
power  of  stockholders  to  employ  agents,  190. 


794  INDEX, 

[References  are  to  Pages.^ 

CORPORATIONS— CoH;mM(?J. 
power  to  appoint  agents,  35. 
power  to  make  contracts,  35. 

president  as  personally  liable  for  wrongful  act  of,  418. 
presumption  as  to  power  to  contract,  35. 
ratification  of  unauthorized  contract,  324. 

COURTS, 

delegation  by  judge  of  authority  with  reference  to  bill  of  exceptions, 
169. 

COVENANTS, 

authority  to  make,  in  sale  of  land,  183. 

liability  of  undisclosed  principal  to  third  person,  464. 

CREDIT, 

authority  of  factor  to  give,  224. 

CRIMES, 

ratification,  328,  332,  336. 

CUSTOMS  AND  USAGES, 

affecting  authority  of  factor  to  sell  on  credit,  226. 

affecting  authority  to  make  covenants  in  sale  of  land,  183. 

affecting  course  pursued  by  factors,  682. 

affecting  right  of  undisclosed  principal  to  sue  purchaser  from  fac- 
tor, 460. 

notice  of  bank's,  in  collecting  negotiable  paper,  180. 

of  bank,  upon  whom  binding,  180. 

of  brokers  as  defining  authority  of  broker,  182. 

operation  of  local,  460. 

presumptions  as  to  agent's  full  authority  from  custorq  of  buying  and 
selling,  228. 

D 

DAMAGES, 

measure  for  breach  of  contract  of  employment,  536. 

measure  in  action  by  agent  when  latter  has  breached  contract  of  em- 
ployment, 545. 

measure  in  action  by  railroad  superintendent  for  breached  contract  of 
employment,  539. 

measure  in  action  for  compensation  of  deceased  agent  under  contract 
of  employment,  557. 

reduction,  recoverable  by  employe  for  breached  contract  of  employ- 
ment, 540. 


INDEX.  795 

[References  are  to  PagesA 

DEATH, 

of  agent  as  barring  recovery  for  services  rendered  under  contract  of 

employment  thereby  breached,  553. 
of  principal  as  evidence  of  revocation  of  authority,  750. 
of  principal   as   revocation  of   agency,   in  general,   550,   760,   761,   764, 

767,  771. 
of  principal  as  revoking  irrevocable  power,  770. 
of  principal  as  terminating  agent's  right  to  compensation,  550. 

DECEIT, 

of  agent,  liability  of  principal,  235,  237,  241. 

DECLARATIONS  AND  ADMISSIONS  OF  AGENT  OR  SERVANT, 
as  binding  principal,  190,  200,  317,  319,  322. 
as  establishing  his  right  to  receive  payment,  202,  206. 
as  proving  agency,  95,  190. 

effect  of  unauthorized  representations  of  agent,  222. 
principle  upon  which,  are  evidence  against  principal  or  agent,  319,  322. 

DEEDS, 

authority  of  agent  to  sell  land  as  authority  to  make,  184. 

authority  of  one  partner  to  bind  another  by,  83. 

authority  to  execute,  75,  76,  82,  87. 

manner  of  executing,  so  as  to  bind  principal,  440. 

of  attorneys  in  fact,  when  valid,  131. 

of  lunatic,  27. 

parol  authority  to  fill  blanks,  76. 

parol  ratification  of  filling  blanks,  76. 

signing  by  agent,  125. 

DEFINITIONS, 
agency,  7. 

agent,  1,  3,  5,  7,  436. 
general  agent,  11,  198,  199. 
servant,  5,  7,  436. 
service,  7. 

special  agent,  11,  199. 
universal  agent,  11. 

DELEGATION  OF  AGENCY, 

See  Delegation  of  Authority. 

DELEGATION  OF  AUTHORITY, 

by  agents  of  town  to  prosecute  suit,  177. 

by  bank  to  collect  negotiable  paper,  178. 

by  judge  as  regards  bill  of  exceptions,  169. 


796  INDEX. 

[References  are  to  Pages.} 

DELEGATION  OF  AUTHORITY— Coufinued. 
consent  of  principal,  178. 
execution  of  agency  by  corporation  as,  49. 
in  general,  164,  166,  169,  172,  173,  175,  177,  178. 
power  to  delegate  implied  from  circumstances,  175,  177,  178. 
to  accept  negotiable  paper,  173. 
to  indorse  negotiable  paper,  185. 
to  indorse  negotiable  paper,  what  constitutes,  186. 
to  sell,  by  factor,  169. 
to  sign  liquor  license  remonstrance,  166. 
what  authority  can  be  delegated,  in  general,  172,  173. 
what  authority  cannot  be  delegated,  in  general,  164,  166,  169. 
with  reference  to  policy  of  insurance,  164. 

DEMAND, 

as  condition  precedent  to  action  for  accounting,  726. 
as  condition  precedent  to  action  for  property  lost  by  gratuitous  bailee, 
733. 

DESCRIPTIO  PERSONARUM, 

effect  of  use  of  words,  124,  127,  129,  130,  132,  136,  139,  148,  149,  157,  158, 
162,  440. 

DUTY  OF  AGENT  TO  PRINCIPAL, 

agent  receiving  negotiable  paper  for  collection,  710. 

agent  to  sell  as  having  no  right  to  purchase  for  himself,  701. 

illegality  of  contract  as  absolving  agent  from  duty  of  accounting,  723. 

not  to  accept  retainer  from  other  party  to  transaction,  707. 

of  gratuitous  agent,  728,  730,  732,  734,  736,  737. 

to  account,  723,  726. 

to  communicate  knowledge  of  facts,  688,  695. 

to  obey  instructions,  673,  675,  677,  681,  685,  686. 

to  observe  good  faith,  688,  689,  692,  695,  698,  705,  707. 

to  use  care  and  skill,  710,  716,  719,  720,  721. 

voluntary  agent  not  absolved  from  exercise  of  good  faith,  691. 

DUTY  OF  PRINCIPAL  TO  AGENT, 

See  Master  and  Servant. 

compensation  in  general,  526,  527,  531,  534. 

compensation,  when  agency  has  been  prematurely  terminated,  535,  537, 
539,  543,  545,  550,  553. 

compensation  when  agent  has  himself  breached  his  contract  of  employ- 
ment, 545. 

of  administrator  of  employer  to  compensate  agent  upon  breaching  con- 
tract of  latter,  550. 

to  reimburse  agent,  558,  561. 


INDEX.  797 

[References  are  to  Pages.] 

ELECTION, 

acts  constituting  election  to  hold  agent,  492. 

between  enforcing  liability  of  undisclosed  principal,  and  that  of  agent, 

490. 
time  for  making,  between  enforcing  liability  of  agent  and  undisclosed 

principal,  489,  490. 

EMBEZZLEMENT, 
by  receiver,  1. 

EMERGENCY, 

liability  of  railroad  company  for  surgical  aid  to  employe,  192. 

EMPLOYER  AND  EMPLOYE, 

See  Master  and  Servant. 

ESTOPPEL, 

agent  to  question  principal's  title,  693. 

creation  of  agency,  102,  103,  219,  228. 

husband  to  deny  agency  of  wife,  109. 

one  agent  by  execution  of  power  by  another,  751. 

principal  by  apparent  authority  of  broker,  229. 

principal  by  declarations  and  acts  of  agent,  317,  319,  322. 

principal  by  forgery  of  name,  334. 

principal  by  holding  person  out  as  agent,  219. 

principal  by  indorsement  of  sub-agent,  186. 

principal  by  notice  to  agent,  293,  296,  299,  300,  304,  307,  310,  313,  356. 

principal    by    permitting    another    to    hold    himself   out    as    principal's 

agent,  228. 
principal  by  ratification  of  forged  signature,  336. 
principal  by  representations  of  agent,  237,  241,  243,  255. 
principal  to  allege  subsequent  incapacity,  768. 
principal  to  disaffirm  contract  by  acceptance  of  benefits,  358. 

EVIDENCE, 

delivery  to  agent,  42. 

notice  of  revocation  of  authority,  759. 

ratification  of  act  of  agent  following  revocation  of  authority,  752. 

ratification  of  authority,  42. 

revocation   of   authority,  750. 

sufficiency  of  to  establish  delivery  to  agent,  for  jury,  42. 

to  establish  agency,  42,  96,  477. 

to  establish  authority  to  execute  accommodation  paper,  110. 

to  establish  character  of  agent,   108. 

to  establish  wife  in  business,  as  agent  of  husband,  45. 


798  INDEX. 

[References  are  to  Pagcs.^ 

EXCOMMUNICATED  PERSONS, 
as  attorneys,  42. 

EXECUTION  OF  AUTHORITY, 

See  Authority. 

EXECUTORS  AND  ADMINISTRATORS, 

authority  to  make  covenants  in  sale  of  land  under  judicial  decree,  129. 
construction  of  covenants  in  deed,  129. 

duty  to  compensate  agent  of  deceased  upon  breach  of  contract  of  em- 
ployment by,  550. 
liability  for  covenants  made  in  sale  of  land  under  judicial  decree,  129. 
liability  in  sale  of  decedent's  personal  property,  171. 

EXTENT  OF  AUTHORITY, 

See  Authority. 

F 

FACTORS, 

acts  as  controlled  by  usages  of  trade  in  usual  course  of  dealing,  682. 

as  principal,  171. 

authority  to  sell  on  credit,  224. 

conversion,  679. 

delegation  of  authority  to  sell,  169. 

duty  to  obey  instructions  of  principal,  681. 

general  authority  from  general  employment,  233. 

personal  liability  for  breach  of  warranty  of  goods  sold,  513. 

personal  liability  on  contract  following  but  before  notice  of  death  of 

principal,  763. 
possession  by  as  implied  authority  to  pledge,  230. 
right  to  compromise  debts,  682. 
set-off  against,  as  available  against  undisclosed  principal,  455,  457. 

FALSE  REPRESENTATIONS, 

effect  of  agent's  believing  to  be  true,  247. 
of  agent,  liability  of  principal,  239,  246. 
of  insurance  agent,  personal  liability,  401. 
"representation"  and  "warranty"  as  not  synonymous,  245. 
to  bind  principal,  246. 

FELLOW-SERVANTS, 

basis  of  "department  limitation  or  doctrine  of  consociation,"  581. 

boiler-maker  and  fireman  and  engineer,  642. 

"captain"  of  dredge  and  deck  hand,  624. 

car  inspector  and  brakeman,  572. 

car- repair  foreman  and  car  repairer,  615. 


I 


INDEX.  799 

[References  are  to  Pages.] 

FELLOW-SERVANTS— Continued. 

co-agents  distinguished,  580. 

co-laborer  in  service  of  emploj^er  and  draftsman,  594. 

conductor  and  others  employed  on  train,  627. 

conductor  of  train  and  snow  shoveler  riding  thereon,  631. 

employe  as,  rather  than  passenger  on  railroad  train,  590. 

employe  of  lessor  and  lessee,  586. 

express  agent  and  handler  of  goods,  630. 

foreman  and  other  workmen,  628. 

liability  of  master  for  injuries  caused  by  negligence,  563,  570,  572,  574, 
577,  582,  586,  590,  594,  596,  604,  608. 

mining  or  driving  boss  and  those  working  with  or  under  him,  628. 

motorman  of  interurban  and  laborer  on  construction  work,  582. 

stationary  engineer  in  unloading  coal  and  shoveler,  580. 

superintendent  of  construction  train  and  common  laborer  on  construc- 
tion work,  620. 

switch-engine  driver  and  car  repairer,  571. 

switchman  and  switchman,  579. 

truckman  unloading  coal  and  shoveler,  579. 

vice  principal  as,  630. 

who  are,  in  general,  571,  573,  576,  579,  583,  586,  590,  594,  604,  616,  621, 
624,  628,  630. 

FORGERY, 

adoption  of  forged  instrument,  effect,  331. 

effect  of  attempted  ratification  of  forged  instrument,  328,  332,  336. 

FRAUD, 

collusion  of  agent  with  third  persons,  248,  255,  313. 

false  representations  of  insurance  agent,  401. 

fraudulent  indorsement,  effect  of  attempted  ratification,  323,  328,  332, 
336. 

liability  of  agent  to  third  persons  on  unauthorized  contract  as  depend- 
ent on  injury  to  such  third  person,  399. 

liability  of  principal  to  third  persons  following  judgment  by  latter 
against  agent  for,  487. 

notice  of,  in  negotiable  paper  to  director  as  notice  to  bank,  307. 

of  agent  in  receiving  payment,  202,  206. 

of  agent,  liability  of  principal,  235,  237,  241,  243,  248,  271. 

of  husband  as  that  of  wife,  313. 

principal  retaining  benefit  of  agent's  fraudulent  act,  315. 

ratification  of  forged  signature  on  negotiable  instrument,  328,  332,  336. 

ratification  of  tainted  contract,  328,  332,  336. 

unnecessary  to  impose  liability  on  agent  for  neglecting  to  perform,  717. 

upon  principal,  concealment  of  facts  by  agent,  688. 

what  constitutes  ratification  of  tainted  contract,  323. 


800  INDEX. 

[References  are  to  Pages.] 

G 
GENERAL  AGENT, 

authority  to  execute  accommodation  paper,  110. 

authority  to  make  accommodation  acceptance,  188. 

by  implication,  188. 

clearly  distinguishable  from  universal,  12. 

defined,  11,  108,  198. 

distinguished  from  special,  13,  482. 

liability  of  principal  for  acts,  13. 

of  corporations  as  corporation  itself,  195. 

railroad  conductor,  198. 

scope  of  authority,  220. 

to  be  carefully  distinguished  from  universal,  112. 

to  sell  land,  modes  and  means  of  executing  authority,  184. 

H 
HOMICIDE, 

as  within  line  of  duty  of  agent,  284. 

by  agent,  liability  of  principal,  284. 

HUSBAND, 

agency  of  wiie  in  business  for,  45. 

as  agent  of  wife,  26. 

as  attorney  in  fact  for  wife,  75. 

authority  of  wife  to  employ  servant  by  sealed  instrument,  84. 

business  of  wife  as  that  of,  45. 

estoppel  to  deny  agency  of  wife,  109. 

fraud  of,  as  fraud  of  wife,  313. 

liability  of  capital  advanced  by  wife  for  trade  debts,  26. 

liability  on  contracts  made  by  wife  in  her  business,  45. 

presumption  as  to  agency  of  wife,  44. 

tertnination  of  general  agency  of  wife,  766. 

wife  as  agent  in  executing  accommodation  paper,  109. 

wife  as  agent  in  purchase  of  necessaries,  45. 

wife  as  surety,  80. 

I 

IDENTITY  OF  PRINCIPAL  AND  AGENT, 
agent  as  principal,  40. 
of  principal  and  factor,  171. 

ILLEGAL  AGENCY, 

assisting  property  owner  in  fitting  up  or  purchasing  building  to  be  given 

government  for  public  use,  70. 
influencing  governmental  acts,  70. 


INDEX.  8oi 

[References  are  to  Pages.^ 

ILLEGAL  AGENCY— Continued. 

influencing  location  of  government  office,  66. 
influencing  location  of  railroad  station,  67. 
influencing  pardon  of  another,  71. 
influencing  those  in  public  service,  68. 
lobbying,  6L 

ILLEGAL  CONTRACT, 

accounting  for  money  received  on,  723. 

contract  by  agent  of  state  unauthorized  and  impliedly  prohibited  by 

statute,  327. 
of  appointment,  61,  66,  71. 
ratification,  327,  331,  334. 

ILLEGAL  PURPOSES, 

See  Illegal  Contracts. 
IMBECILES, 

See  Insanity. 

IMMORAL  CONTRACTS, 

contract  by  agent  of  state  unauthorized  and  impliedly  prohibited  by 

statute,  327. 
of  agency,  influencing  pardon  of  another,  71. 
of  agency,  lobbying,  61. 
ratification,  331,  334 

IMPLIED  AUTHORITY, 

See   Agency;   Authority;    Presumptions  and   Implications. 

INDEMNITY, 

between  wrong-doers,  560. 

INFANT, 

as  agent,  40,  43. 

as  attorney  in  fact,  42. 

infancy  as  personal  privilege,  414. 

power  to  appoint  agent  for  sale  of  property,  15. 

power  to  appoint  agent  or  attorney,  in  general,  17,  19,  340. 

ratification  of  act  of  agent  done  while  principal  was,  340. 

ratification  of  contract  of  partner,  18. 

void  and  voidable  acts,  16,  18,  19,  414. 

INSANITY, 

deed,  contract,  or  power  of  attorney  of  lunatics,  27. 
imbecile  as  agent,  40. 
51 — Reinhard  Cases. 


802  INDEX. 

{References  are  to  Pages  A 

mSANlTY—Contimied. 

lunatic  as  agent,  40. 

of  partner  as  dissolving  partnership,  769. 

of  principal  as  suspending  authority,  768. 

of  principal  as  terminating  agency,  768. 
INSURANCE, 

delegation  of  authority  with  reference  to  policy,  164. 

liability  of  company  when  agent  has  colluded  with  insured,  313. 

notice  to  agent  as  imputed  to  insurer,  293. 

personal  liability  as  gratuitous  agent  for  failure  to  insure,  736. 

personal  liability  of  agent  making  false  representations,  401. 
INTENT, 

liability  of  agent  on  negotiable  paper  when,  to  bind  principal  is  clear, 
148. 

manner  of  showing,  to  appoint  agent,  102. 

of  agent  in  signing  note,  151. 

parol  evidence  to  show,  of  agent  in  signing  negotiable  paper,  142. 

parol  evidence  to  show,  of  agent  in  signing  simple  contract,  155. 

relevancy  of  evidence  as  to,  in  signing  negotiable  paper  as  discretionary 

with  court,  144. 

INTERPRETATION  AND  CONSTRUCTION, 

agent's  authority,  114. 

changing  grammatical,  159. 

contract  as  to  termination  of  agency,  739,  741. 

covenants  in  administrator's  deed,  129. 

deed  of  attorney  in  fact,  131. 

language  sufficient  to  confer  authority  to  make  covenants  in  sale  of 
land,  183. 

meaning  of  word  changed  by  popular  use,  159. 

power  of  attorney  as  being  coupled  with  interest,  778. 

power  of  attorney  as  creating  equitable  lien,  778. 

power  of  attorney,  in  general,  119,  121. 

power  of  attorney  to  convey  land,  121. 

power  of  attorney  to  execute  bills  and  notes,  122. 

signature  of  agent  to  negotiable  paper,  136,  139,  148,  149. 

signature  of  agent  to  sealed  instrument,  124,  127,  129,  130,  132. 

signature  of  agent  to  simple  contract,  157,  158,  160,  161. 

signature  to  mortgage  and  mortgage  note,  132. 

words  used  in  executing  authority,  140. 
INTOXICATING  LIQUORS, 

authority   of  attorneys   at   law  to  prepare,  sign  and  present   remon- 
strance, 167. 
IRREVOCABLE  AGENCY, 

See  Agency. 


INDEX.  803 

[References  are  to  Pages.] 

K 
KNOWLEDGE, 

duty  to  know  agent's  authority,  23,  89,  113. 

liability  of  agent  to  third  persons  when  latter  have,  of  agency,  521. 

of  agent  as  imputed  to  principal,  293,  296,  299,  300,  304,  307,    310,  313. 

of  agent  as  imputed  to  principal,  effect  upon  of  collusion  of  third  per- 
son, 313. 

of  agent  as  to  revocation  of  authority,  761. 

of  director  or  trustee  of  bank,  300,  307. 

of  limitations  upon  authority  of  agent  as  question  for  jury,  220. 

of  servant  as   ending  right  to  assume  that  master  will  provide   safe 
appliances,  661. 

of  servant  of  defects  in  machinery  as  entering  into  question  of  con- 
tributory negligence,  668. 

of  vice-president  of  bank  as,  of  bank,  310.  ' 

that  acceptance  is  by  agent,  effect,  116. 

that  broker  is  acting  for  both  parties  to  transaction  as  affecting  right 
to  compensation,  57,  60. 

what  constitutes,  of  master  as  to  incompetency,  etc.,  of  servant,  604,  608. 

L 
LANGUAGE, 

See  Words. 

LARCENY, 

by  agent  liability  of  principal,  260. 

LIABILITY  OF  AGENT  TO  PRINCIPAL, 
agent  as  guilty  of  conversion,  677,  686. 
as  not  dependent  upon  fraudulent  intent  of  agent,  691. 
bank  officer  rendering  gratuitous  services  for  negligence,  etc.,  737. 
for  exceeding  authority,  234. 
for  nonfeasance,  426. 
for  omission  of  duty,  421,  423. 

fraud  unnecessary  to  impose  liability  for  neglecting  to  perform,  717. 
gratuitous  agent  as  depending  upon  undertaking  to  act,  736. 
gratuitous  agent  for  wilful  and  malicious  fraud  and  wrong,  728. 
gratuitous  agent,  request  as  insufficient  to  establish  liability,  736. 
gratuitous  bailee  for  gross  negligence,  732. 
in  purchasing  from  principal,  695. 
in  selling  his  property  to  principal,  705. 
nature  when  agent  disregards  instructions,  676. 

on  purchasing  in  his  own  name  while  in  performance  of  office,  694. 
physician  rendering  gratuitous  services,  for  malpractice,  736. 
when  loss  has  resulted  through  failure  of  agent  to  obey  instructions,  673. 
when  principal  has  given  ambiguous  instructions,  685. 


804  INDEX. 

[References  are  fo  Pages.] 

LIABILITY  OF  AGENT  TO  THIRD  PERSONS, 

administrator  for  covenants  made  in  sale  of  land  under  judicial  de- 
cree, 129. 

administrator  in  sale  of  decedent's  personal  property,  17L 

affecting  liability  of  undisclosed  principal,  443. 

agent  as  chargeable  with  wrongful  act  of  principal,  415. 

agent  innocently  disposing  of  stolen  property,  415. 

agent  in  undisclosed  agency  for  services,  519. 

agent  of  foreign  principal  as  depending  on  intent,  388. 

agent  participating  in  creation  of  public  nuisance,  418. 

broker  for  purchase  money,  522. 

commission  merchant  for  breach  of  warranty  made  by  him  in  selling 
goods,  513. 

depending  on  actual  act  of  agent,  420. 

depending  on  intention  and  understanding  of  the  parties,  387. 

depending  on  lack  of  notice  to  such  third  persons,  415. 

duty  of  agent  to  disclose  agency  if  he  would  avoid  personal  liability,  519. 

for  act  done  following  revocation  of  authority  by  death  of  principal, 
763,  765. 

for  act  of  sub-agent  employed  without  authority,  176. 

for  nonfeasance,  421,  423,  426,  428. 

for  torts,  415,  418,  420,  421,  423,  426,  428. 

individuals  for  tort  of  corporations,  not  predicable  of  their  being  di- 
rectors, etc.,  of  domestic  corporations,  426. 

in  signing  negotiable  paper  when  intent  to  bind  principal  is  clear,  148. 

nature  of  agent's  personal  obligation,  408. 

nature  of  obligation  affecting,  for  tort,  428. 

not  established  by  mere  fact  of  infancy  of  principal,  412. 

on  authorized  contract  for  disclosed  principal,  383,  387,  388. 

on  building  contract  made  for  undisclosed  principal,  517. 

on  note  executed  for  principal,  140. 

on  purchasing  as  ostensible  principal,  511. 

on  sealed  instruments  executed  without  or  beyond  authority,  130. 

on  unauthorized  bonds,  392. 

on  unauthorized  contract  as  depending  upon  actual  injury  to  such  third 
person,  399. 

on  unauthorized  contract,  in  general,  392,  393,  394,  396,  399,  401,  407, 
412,  415. 

on  unauthorized  negotiable  paper,  394. 

president  of  club  for  wrongful  act  of  same,  418. 

private  agent  in  attempting  to  bind  principal,  394. 

public  agent  acting  in  public  business,  383,  394. 

public  or  private  agent  in  exceeding  authority,  395. 

qualification  of  rule  that  if  agent  does  not  bind  principal  he  binds  him- 
self, 383. 


INDEX.  805 

[References  are  to  Pages.] 

LIABILITY  OF  AGENT  TO  THIRD  PERSOlSiS— Continued. 

rule  as  to  liability  of  private  agents  extends  to  public  agents,  395. 

under  what  circumstances  agent  is  liable,  401. 

upon  ratification  of  unauthorized  negotiable  paper  signed  in  principal's 

name  per  that  of  agent,  378. 
upon  signing  negotiable  paper,  149. 
upon  signing  simple  contract,  161. 
when  latter  have  knowledge  of  agency,  521. 

LIABILITY  OF  PRINCIPAL  TO  AGENT, 

for  compensation  when  agent  has  breached  contract  of  employment,  543. 
for  damages  upon  revocation  of  contract  of  agency,  755. 
upon  thwarting  execution  of  power,  747. 

LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSONS, 

acting  without  authority  as  affecting,  for  tort  of  agent,  269,  275,  279. 

act  of  agent,  driving  cart,  running  down  pedestrian,  262. 

act  of  agent  following  revocation  of  authority  by  death  of  principal, 

760,  761,  764. 
act  of  agent  following  revocation  of  authority,  in  general,  750,  757. 
act  of  agent  in  excess  of  authority,  108,  123,  211,  215. 
act  of  agent  within  apparent  authority,  229. 
act  of  agent  within  scope  of  his  authority,  215,  222. 
act  of  person  held  forth  as  agent,  219,  222,  228. 
act  of  special  agent,  108. 
act  of  sub-agent,  171,  172,  176. 

after  judgment  by  latter  against  agent  for  fraud,  487. 
as  affected  by  want  of  notice  of  subsequent  incapacity,  768. 
concurrent  liability  of  agent  and  undisclosed  principal,  489. 
effect  of  ratification  of  act  of  agent,  in  general,  370. 
effect  of  ratification  of  contract  of  partnership,  371. 
effect  of  secret  instructions,  in  general,  215,  222,  226,  233. 
effect  of  undisclosed  limitations  upon  authority  of  general  freight  agent, 

220. 
election  by  third  persons  to  proceed  against  undisclosed  principal,  449. 
false  representations  of  agent,  246. 
homicide  by  agent,  284. 

injuries  to  property  caused  by  driving  of  agent,  263. 
in  retaining  benefit  of  fraudulent  act  of  agent,  315. 
in  trover  for  larceny  by  agent,  261. 
larceny  by  agent,  260. 

manner  of  executing  contract  by  deed  to  render  principal  liable,  440. 
nonfeasance  of  agent,  426. 

on  note  executed  by  agent  disclosing  agency,  140. 
on  sealed  instrument  signed  by  agent  in  his  own  name,  125,  127,  132. 


8o6  INDEX. 

[References  are  to  Pages  A 

LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSONS— Continued. 

on  sealed  instrument  signed  in  his  presence  and  at  his  request,  134. 

personal  injuries  inflicted  by  agent,  258,  260,  262,  263,  265,  269,  275,  279. 

principal  in  undiscovered  agency,  213. 

railroad,  for  cars  promised  by  general  freight  agent,  216. 

railroad,  for  surgical  aid  rendered  injured  employe,  192. 

railroad,  on  fraudulent  and  collusive  bill  of  lading,  248,  255. 

right  of  person  with  notice,  dealing  with  agent  on  his  personal  credit, 
subsequently  to  charge  principal,  449. 

tort  of  agent,  235,  237,  241.  255,  258,  260,  262,  263,  265,  269,  275,  279. 

tort  of  servants  of  sub-contractor,  285. 

tort  of  sub-contractor,  285. 

trespass  of  agent,  258. 

unaffected  by  fact  that  contract  was  made  by  infant  agent,  43. 

undisclosed  principal,  as  affected  by  personal  liability  of  agent,  443. 

undisclosed  principal  as  affected  by  secret  restrictions  upon  authority 
of  agent,  475,  476. 

undisclosed  principal,  as  concurrent  with  that  of  agent,  490. 

undisclosed  principal,  for  breach  of  contract  by  agent,  476. 

undisclosed  principal,  on  contract  in  general,  468,  484. 

undisclosed  principal,  on  contract  of  purchase,    469,  474. 

undisclosed  principal,  on  negotiable  paper,  138,  149,  465,  467. 

undisclosed  principal,  on  sealed  contract,  462. 

undisclosed  principal,  on  unauthorized  contract  of  special  agent,  477. 

undisclosed  principal,  on  written  parol  executory  contract,  465. 

undisclosed  principal  to  vendor  in  sealed  executory  agreement  to  con- 
vey, 462. 

upon  ratification  of  agency  of  person  committing  tort,  337. 

upon  ratification  of  forged  signature,  336. 

when  acts  of  agent  are  within  general  authority  arising  from  general 
employment  in  specific  capacity,  233. 

when  agent  has  colluded  with  third  persons,  248,  255,  313. 

when  agent  has  disobeyed  orders  or  duty,  214. 

when  agent  has  signed  simple  contract  in  his  own  name,  137. 

LIABILITY  OF  THIRD  PERSONS  TO  AGENT, 

of  carrier  to  consignor  who  is  agent  of  another,  494. 
on  contract  by  agent  for  principal,  494,  506,  508. 
on  contract  not  disclosing  principal,  499. 

where  latter  loses  compensation  through  breach  of  contract  of  former, 
503. 

LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL, 

as  parties  to  unauthorized  acts  of  agent,  234. 
following  unauthorized  payment  to  salesman,  221. 


INDEX.  807 

[References  are  to  PagesA 

LIABILITY  OF  THIRD  PERSONS  TO  FRI^CIFAL— Continued. 
right  of  undiscovered  bailor  to  sue  in  his  own  name,  452. 
right  of  undisclosed  principal  to  sue  on  sealed  contract,  438,  441,  450. 
right  of  undisclosed  principal  to  sue  on  unsealed  contract,  442,  450. 
to  undisclosed  in  general,  438,  441,  442,  444,  449,  450,  452,  455,  457,  461, 

477,  484. 
to  undisclosed  principal  as  affected  by  seal  on  instrument  valid  without 

seal,  438. 
upon  payment  to  agent  of  undisclosed,  461. 
upon  ratification  of  executory  contract,  378. 
upon  ratification  of  invalid  contract  of  agent,  326. 
upon  ratification  where  covenants  are  mutual,  376. 

LIENS, 

construction  of  power  of  attorney  as  creating  equitable,  778. 

I  LIQUIDATORS, 

effect  of  statutory  provisions  upon  acts,  53. 

LOBBYING, 

contract,  61. 

LUNATICS, 

See  Insanity. 

M 
MALPRACTICE, 

liability  of  physician,  720. 

MARRIAGE, 

as  terminating  agency  for  single  woman,  767. 

MARRIED  WOMEN, 

attorneys  in  fact,  42. 

compensation  of  solicitor  employed  by,  23. 

delegation  of  authority,  23. 

employment  of  solicitor,  23. 

engaging  in  trade,  26. 

Hability  on  executory  promise,  22. 

necessity  of  inquiring  into  powers  of  agents,  23. 

power  to  appoint  agent  to  sell  real  estate,  21. 

power  to  make  bond  in  judicial  proceedings,  25. 

power  to  make  contracts  relating  to  business,  25. 

power  to  sue  and  be  sued,  24.  i 

presumption  as  to  validity  of  notes,  22. 

undisclosed  member  of  partnership,  26. 


8o8  INDEX. 

[References  are  to  Pages.] 

MASTER  AND  SERVANT, 

acting  without  authority  as  aflfecting  master's  liability  for  tort  of  serv- 
ant, 269,  275,  279. 
act  of  servant  driving  cart  in  running  down  pedestrian,  262. 
acts  of  servant,  in  general,  10. 
"agent"  and  "servant"  not  synonymous,  7. 

assumption  of  risk  by  servant,  633,  639,  644,  645,  650,  653,  665,  669. 
basis  of  "department  limitation  or  doctrine  of  consociation,"  581. 
creation  of  relation,  266. 

distinction  between  agent  and  servant,  5,  7,  436. 

duty  of  master  to  compensate  servant,  in  general,  526,  527,  531,  534. 
duty  of  master  to  compensate  servant  upon  peremptory  termination  of 

relation,  535,  537,  539,  543,  545,  550,  553. 
duty  of  master  to  compensate  servant  when  latter  has  breached  contract 

of  employment,  543. 
duty  of  master  to  provide  safe  premises  and  suitable  appliances,  633, 

639,  644,  645,  650,  653,  665,  669. 
duty  of  master  to  servant,  in  general,  194. 
employment  of  surgical  aid   for  injured  employe  as   acknowledgment 

of  liability  to  such  one,  200. 
evidence  to  establish  incompetency,  etc.,  of  servant,  604,  608. 
generally  governed  by  same  rules  as  principal  and  agent,  7. 
injuries  to  property  caused  by  driving  of  servant,  263. 
injuries  to  servant  caused  by  negligence  of  fellow-servant,  563,  570,  572, 

574,  577,  582,  586,  590,  594,  596,  604,  608. 
injuries  to  servant  caused  by  negligence  of  vice-principal  or  superior 

servant,  615,  620,  624,  630. 
larceny  by  servant,  260. 

master's  promise  to  furnish  safe  appliances,  653,  665,  669. 
nonfeasance  of  servant,  426. 

objection  by  servant  as  to  safety  of  appliances,  653,  665,  669. 
relation  as  existing  between  master  and  sub-contractor,  285. 
relation  as  not  existing  after  completion  of  day's  work,  595. 
relation  responsible  for  that  of  principal  and  agent,  7. 
servant  representative  of  master  in  a  qualified  sense,  10. 
tort  of  servant,  9,  279,  284. 
tort  of  servant  of  sub-contractor,  285. 
tort  of  sub-contractor,  285. 
trespass  of  servant  as  that  of  master,  258. 
trover  against  master  for  larceny  by  servant,  261. 

MEDICAL  AND  SURGICAL  AID  TO  EMPLOYES, 
as  acknowledgment  of  liability  to  such  one,  200. 
authority  of  conductor  to  contract  for,  192. 
who  has  authority  to  contract  for,  192. 


INDEX.  809 

[References  are  to  Pages.] 


MIDDLEMEN, 

brokers  as,  61. 


MISFEASANCE  AND  NONFEASANCE, 

act  constituting  nonfeasance,  421,  423,  426,  428. 
distinguished,  423,  426,  428. 

liability  of  agent  to  principal  for  nonfeasance,  423. 
liability  of  agent  to  third  persons  for,  421,  423,  426,  428. 
liability  of  principal  for  nonfeasance  of  agent,  426. 

MORTGAGES, 

authority  to  execute,  132. 

MUNICIPAL  CORPORATIONS, 

authority  to  execute  sealed  instrument  binding  upon,  83. 
ratification  of  sealed  instrument  by  parol,  83. 

N 
NEGLECT, 

of  agent,  liability  of  principal,  239,  271. 

NEGLIGENCE, 

as  question  exclusively  of  fact,  663. 

contributory,  as  mixed  question  of  law  and  fact,  666. 

contributory  of  injured  employe,  as  entering  into  right  of  surgeon  to 

recover  for  services  rendered,  199. 
of  directors  of  corporation  as  that  of  corporation,  635. 
of  fellow-servants,  causing  injuries  to  servant,  563,  570,  572,  574,  577, 

582,  586,  590,  594,  596,  604,  608. 
of  vice-principals   and  superior  servants  causing  injuries  to  servants, 

615,  620,  624,  630. 
personal  liability  of  agent,  428. 

NEGOTIABLE  INSTRUMENTS, 

See  Bills  and  Notes. 

NOTICE, 

as  affecting  right  of  person  making  payment  to  agent,  223. 

as  affecting  right  of  principal  to  disaffirm,  358,  359. 

circumstances  insufficient  as  constructive,  of  factor's  agency  for  undis- 
closed principal,  461. 

effect  of  constructive,  on  availability  against  undisclosed  principal  of 
set-off  against  factor,  457. 

effect  of  marking  package  "C.  O.  D.,"  as  regards,  227. 

evidence  as  to,  of  revocation  of  authority,  759. 

of  revocation  of  agency,  747,  750,  757. 


8lO  INDEX. 

[References  are  to  Pages.] 

NOTICE— Continued. 

to  agent  as  imputed  to  principal,  293,  296,  299,  300,  304,  307,  310,  313,  356. 

to  agent  as  imputed  to  principal,  effect  upon  of  collusion  of  third  per- 
son, 248,  255,  313. 

to  director  or  trustee  of  bank  as,  to  bank,  300,  307. 

to  third  persons  as  relieving  agent  from  personal  liability,  415. 

to  vice-president  of  bank  as,  to  bank,  310. 

want  of,  as  affecting  validity  of  act  following  termination  of  agency 
by  death,  760,  761,  764,  767,  771. 

want  of  notice  of  subsequent  incapacity  of  principal,  768. 

what  constitutes,  to  master  as  to  incompetency,  etc.,  of  servant,  604.  608. 

NOXAL  ACTIONS, 
nature,  10. 

NUISANCE, 

public,  personal  liability  of  agent  participating  in  creation,  418. 

O 

OPTION, 

contract  construed  as  agency  rather  than,  93. 
giving  of,  92. 

OUTLAWED  PERSONS, 

as  attorneys  in  fact,  42. 

P 

PAROL, 

adoption  of  acts  of  agent,  82. 

authority  given  agent  by,  82. 

authority  to  execute  deed,  76,  87. 

authority  to  fill  blanks  in  deed,  76. 

authority  to  make  contract  of  purchase  of  land  as  making  sealed  con- 
tract binding  on  undisclosed  principal,  462. 

authority  to  sell  land,  43. 

establishing  liability  of  undisclosed  principal,  in  general,  449. 

establishing  liability  of  undisclosed  principal  on  negotiable  paper,  467. 

establishing  ownership  of  promissory  note  in  undisclosed  principal, 
441,  444. 

establishing  right  of  undisclosed  principal  to  sue  in  his  own  name,  450. 

establishing  undisclosed  principal's  right  in  contract,  449. 

evidence  as  to  intent  in  signing  negotiable  paper,  142,  149. 

evidence  as  to  intent  in  signing  simple  contract,  155. 

evidence  to  bind  principal  when  agent's  name  is  signed  to  simple  con- 
tract, 160. 


INDEX.  8ll 

[References  are  to  Pages.] 

FAROL—Cotttinued. 

evidence  to  establish  ownership  in  bank  of  promissory  note  payable  to 

cashier,  444. 
ratification  of  filling  blanks  in  deed,  76. 

ratification  of  sealed  instrument  by  municipal  corporation,  83. 
ratification  of  sealed  instrument,  in  general,  342,  343. 
revocation  of  authority,  749. 

right  of  agent  to  charge  undisclosed  principal  alone,  449. 
right  to  establish  instructions  to  agent  under  written  contract,  680. 
right   to  obviate   uncertainty   as   to   whether   undisclosed   principal    or 

agent  is  bound  by  simple  contract,  471. 

PARTIES, 

to  contract  of  agency,  competency,  agent,  39,  41,  42,  44,  46,  50. 
to  contract  of  agency,  competency,  principal,  15,   18,  21,  22,  23,  25,  27, 
34,  36,  38. 

PARTNERSHIP, 

appointment  of  agent  or  attorney  by  partner,  38. 

authority  to  accept  bill  for  member  of,  114. 

eflfect  of  ratification  of  contract  making  principal,  member  of,  371. 

insanity  of  partner  as  dissolution,  769. 

law  of  agency  as  that  of,  83,  475. 

liability  of  clerk  purchasing  as  ostensible  partner,  511. 

liability   of   dormant   partner   as    affected   by   secret   restrictions    upon 

active  partner,  475. 
liability  of  retiring  partner  after  notice  to  agent  of  seller,  304. 
one  partner  as  agent  of  other,  82. 

personal  liability  to  third  persons  of  agent  acting  as  partner,  519. 
ratification  by  one  partner  of  negotiable  paper  executed  in  firm  name 

by  other,  366. 
ratification  of  infant's  partner's  contract,  18. 

PAYMENT, 

authority  of  salesman  to  receive  for  principal,  221. 
implied  authority  in  salesman  to  receive,  how  shown,  222. 
ratification  when  money  received  through  mistake  of  fact  has  been  re- 
turned, 375. 
to  agent  as  payment  to  principal,  202,  206. 
to  agent  of  undisclosed  principal  as  payment  to  latter,  461. 
to  salesman  as  payment  to  principal,  221. 
validity  to  agent  after  death  of  principal,  761. 

PERSONAL  INJURIES, 

liability  of  principal  for,  inflicted  by  agent,  258,  260,  262,  263,  265,  269, 
275,  279. 


8l2  INDEX. 

[References  are  to  Pages.l 

PERSONS  OF  UNSOUND  MIND, 

See  Insanity, 

PHYSICIANS  AND  SURGEONS, 

knowledge  and  skill  required  of,  720. 

liability  for  malpractice,  720,  736. 

liability  for  malpractice  as  dependent  upon  charging  of  fee,  736. 

PLEADING, 

by  agent  asserting  personal  nonliability,  393. 

by  agent  to  enforce  implied  promise  of  indemnity,  560. 

by  broker  for  commissions,  530. 

by  employe  for  breach  of  contract  of  employment,  536. 

by   servant  injured  following  promise  of  master   to  make  machinery 

safe,  669. 
for  compensation  of  deceased  agent  under  contract  of  employment,  557. 

POWER  OF  ATTORNEY, 

authority  to  execute  assignment  for  benefit  of  creditors,  118. 

authority  to  execute  mortgage  and  mortgage  note,  132. 

authority  to  sign  liquor  license  remonstrance,  166. 

by  infant,  17,  19. 

construction,  in  general,  112,  114,  119. 

coupled  with  interest,  778. 

creating  equitable  lien,  778. 

death  of  principal  as  revocation  of  irrevocable,  770. 

executed  by  lunatic,  27. 

executed  by  partner,  38. 

extent,  how  settled,  183. 

extent  of  authority,  conferred,  210,  393. 

form  and  requisites  of  revocation,  749. 

presumptions  springing  from,  356. 

ratification  of  forged,  331. 

termination  by  execution,  776. 

to  convey  land,  construction,  121. 

to  execute  bills  and  notes,  122. 

to  execute  sealed  instrument,  82. 

unilateral,  747. 

when  irrevocable,  771,  775. 

PRESUMPTIONS  AND  IMPLICATIONS, 
agency,  in  general,  42. 
agency  of  wife  for  husband,  44. 
agent  acting  in  private  business,  386. 
agent  acting  in  public  business,  386. 
agent's  authority,  in  general,  188,  214,  216,  280. 


INDEX.  813 

[References  are  to  Pages.] 

PRESUMPTIONS  AND  IMFLICATIOXS— Continued. 

apparent  authority  is  real  authority,  229. 

assumption  by  servant  of  risks  of  known  incompetency,  etc.,  of  fellow- 
servants,  638. 

authority  as  to  right  of  railroad  conductor  to  remove  trespasser,  277. 

authority  conferred  upon  brokers,  181. 

authority  of  agent  to  fix  compensation  of  sub-agent,  190. 

authority  of  broker  to  sell,  229. 

authority  of  railroad  conductor,  198. 

authority  of  special  agent,  188. 

authority  to  buy  from  authority  to  sell,  228. 

authority  to  draw  bill,  207. 

authority  to  make  representations  concerning  property  as  implied  from 
authority  of  lease,  247. 

authority  to  receive  pa3'ment,  202,  206. 

contract  of  servant  assuming  risks  of  employment,  638. 

contributory  negligence  of  injured  servant,  rebuttal,  662. 

credit  being  given  agent  rather  than  foreign  principal,  388. 

delegation  of  authority  of  bank  to  collect  negotiable  paper,  179. 

exact  limits  of  authority  of  railroad  conductor,  198. 

fraud  in  sale  by  agent  to  principal,  706. 

from  method  of  signing  promissory  note,  141. 

full  authority  from  custom  of  buying  and  selling,  228. 

general  authority  from  general  employment  in  specific  capacity,  233. 

intent  of  agent  in  signing  negotiable  paper,  151. 

intent  of  private  agent  to  bind  himself,  395. 

intent  of  public  or  private  agent  in  exceeding  authority,  395. 

invalidity  of  transaction  whereby  agent  obtains  benefit,  702. 

knowledge  of  principal  from  notice  to  agent,  293,  296,  299,  300,  304,  307, 
310,  313. 

knowledge  that  broker  receives  compensation  from  both  parties  to 
transaction,  61. 

negligence  of  superior  causing  injuries  to  servant,  580. 

person  taking  negotiable  paper  on  credit  of  signer,  465. 

possession  by  factor  or  broker  as  authority  to  pledge,  230. 

power  of  corporation  to  contract,  35. 

power  to  delegate  authority,  from  circumstances,  175. 

promise  of  indemnity  to  agent,  559. 

ratification  from  accepting  benefits  for  long  time,  356. 

ratification  from  silence  of  principal,  363. 

ratification  of  acts  of  agent  during  suspension  of  authority,  768. 

revocation  of  authority,  from  circumstances,  749. 

right  of  servant  to  assume  that  master  will  provide  safe  appliances,  661. 

springing  from  power  of  attorney,  356. 


8l4  INDEX, 

[References  are  to  Pages.] 

PRESUMPTIONS  AND  IMPLICATIONS— ConfmM^d 

that  employe  under  breached  contract  of  employment  afterwards  ob- 
tained highest  wages  possible,  537. 
undertaking  of  gratuitous  agent  to  insure,  736. 
validity  of  note  of  married  woman,  22. 

PRINCIPAL, 

ability  to  act  through  agent,  40. 

act  of  agent  as  act  of,  222. 

acts  within  agent's  authority  as  binding  upon,  222. 

agency  not  created  except  by  will  of,  95,  102. 

agent  as,  40. 

as  bound  by  act  of  special  agent,  233. 

as  bound  by  act  of  sub-agent,  172. 

as  bound  by  act  within  apparent  authority  of  broker,  229. 

as  bound  by  declarations  and  admissions  of  agent,  317,  319,  322. 

as  bound  by  statements  of  agent,  200. 

authority  to  bind,  by  sealed  instrument,  83. 

binding,  in  execution  of  note,  140. 

consent  of,  to  delegation  of  authority,  172,  178. 

covenants  in  deed  as  those  of,  131. 

death  as  evidence  of  revocation  of  authority,  750. 

death  as  revocation  of  agency,  760,  761,  764,  767,  771. 

death  as  revoking  irrevocable  power,  770. 

effect    of    presence    at   execution    of    agency,    upon    authorization    of 

agent,  87. 
estoppel  by  indorsement  of  sub-agent,  186. 
estoppel  by  ratification  of  forged  signature,  336. 
estoppel  to  deny  agency,  102,  103,  219,  222,  228,  233. 
factor  as,   171. 
implications  as  to  authority  of  agent  from  conduct  of  as  question  for 

jury,  109. 
insanity  as  revoking  authority  of  agent,  768. 
manner  of  executing  contract  by  deed  to  bind,  440. 
manner  of  showing  intent  to  appoint  agent,  102. 
marriage  of  single  woman  as  termination  of  agency  for  her,  767. 
mutuality  of  contract  as  affecting  right  of,  to  revoke  authority,  748. 
notice  to  agent  as  notice  to,  293,  296,  299,  300,  304,  307,  310,  313,  356. 
partnership  relation  governed  by  same  rules  as  agent  and,  83. 
power  of  agent  to  bind,  by  instrument  in  writing,  87. 
relation  of  agent  and,  closely  allied  to  that  of  servant  and  master,  7. 
right  in  undiscovered  agency,  213. 

right  of  undisclosed  bailor  to  sue  in  his  own  name,  452. 
right  of  undisclosed,  to  claim  benefits  of  agent's  act,  477. 
right  of  undisclosed,  to  sue  on  contract,  438,  441,  442,  449,  450,  471. 


INDEX.  815 

[References  are  to  Pages.] 

PRINCIFAL— Continued. 

rights  and  liabilities  upon  written  instruments  executed  by  agent,  upon 
what  dependent,  451. 

right  to  revoke  authority  of  agent,  in  general,  744,  771. 

right  to  revoke  authority  to  sell  as  affected  by  "exclusive"  or  "irrev- 
ocable" grant  of  power,  748. 

right  to  revoke  authority  to  sell  land,  746. 

right  to  sell  to  agent,  703. 

rules  as  to  servant  and  master  as  controlling  relation  of  agent  and,  7. 

sale  by,  as  revocation  of  authority  to  sell,  748. 

senseless  condition  of,  in  extremis  as  terminating  authority,  766. 

signature,  in  his  presence  and  at  his  request,  by  agent,  134. 

signing  of  simple  contract  with  reference  to  binding,  157,  158. 

undisclosed,  as  affected  by  seal  on  instrument  valid  without  seal,  438. 

who  can  be,  15,  18,  21,  22,  23,  25,  27,  34,  36,  38,  39. 

written  contract  as  binding  upon  foreign,  388. 

wrongful  act  of,  as  that  of  agent,  415. 

PROCURATION, 

acceptance  of  negotiable  paper,  114. 

PROFESSIONAL  SERVICES, 

See  Attorneys  at  Law;  Physicians  and  Surgeons. 

PROMISES, 

nude,  747. 

PUBLIC  AGENT, 

personal  liability  of,  acting  in  public  business,  383. 
who  is,  384. 

PUBLIC  POLICY, 

See  Illegal  Agencies. 

Q 

QUESTIONS  FOR  COURT, 
negligence,  663. 
negligence,  contributory,  666. 
relevancy  of  evidence  as  to  intent  in  signing  negotiable  paper,  as,  144. 

QUESTIONS  FOR  JURY, 

assumption  of  risk  by  servant,  652. 

evidence   insufficient   to  take   question   as  to   negligence  of  master   in 

taking  incompetent  servant  into  employ  to  jury,  608. 
exercise  of  diligence  and  skill  by  agent,  717. 
implications  as  to  authority  of  agent  from  contract  of  principal,  109. 


8l6  INDEX. 

[References  are  to  Pages.] 

QUESTIONS  FOR  JVRY— Continued. 

knowledge  of  limitations  upon  authority,  220. 
negligence,  663. 
negligence,  contributory,  666. 

sufficiency  of  evidence  as  to  negligence  of  master  in  employing  incom- 
petent servant,  602. 
vi^aiver  by  servant  of  defects  in  machinery,  667,  671. 

R 

RAILROADS, 

admissions  by  engineer,  319. 

authority  of  conductor  of  train,  in  general,  192. 

authority  of   conductor   of   train   to   employ  surgical   aid   for   injured 

brakeman,  192. 
authority  of  conductor  to  remove  trespasser,  277. 
conductor  of  train  as  general  agent,  198. 
effect    of    undisclosed   limitations    upon    authority    of    general    freight 

agent,  220. 
employe  of,  when  not  a  passenger,  590. 

implied  authority  of  general  freight  agent  to  promise  cars,  216. 
liability  for  surgical  aid  rendered  employes,  192. 
liability  for  tort  of  agent  of  sub-contractor,  285. 
liability  for  tort  of  conductor,  275. 
liability  for  tort  of  sub-contractor,  285. 

liability  on  fraudulent  and  collusive  bill  of  lading,  248,  255. 
measure  of  damages  in  action  by  railroad  superintendent  on  breached 

contract  of  employment,  539. 

RATIFICATION, 

accommodation,  366. 

acquiescence  after  notice  as,  359,  361. 

act  of  agent  done  while  principal  was  minor,  340. 

act  of  agent  during  suspension  of  authority,  768. 

act  of  agent  following  revocation  of  authority,  752. 

attempted,  of  fraudulent  indorsement,  effect,  328,  332,  336. 

burden  of  proving,  346. 

by  acceptance  of  benefits,  354,  358,  359. 

by  bringing  assumpsit  on  contract,  349. 

criminal  act,  328,  332,  336. 

effect,  in  general,  82,  334,  337,  350,  356,  366,  370,  371,  375,  376,  378,  381. 

effect  of  ignorance,  mistake,  or  misapprehension,  345,  348. 

effect,  on  contract  making  principal,  partner,  371. 

effect,  on  executory  contract,  378. 

effect,  on  voidable  contract  of  infant,  19. 

forged  power  of  attorney,  331. 


INDEX.  817 

[References  are  to  PagesA 

RATIFICATION— Continued. 

forged  signature  on  negotiable  instrument,  328,  332,  336. 

illegal  contract,  327. 

invalid  contract  of  agent  of  state,  326. 

liability  of  principal  in  trover  for  larceny  by  agent  as  depended  upon, 

261. 
nature,  323,  346. 

necessity  of  ratified  act  being  done  by  avowed  agent  of  ratifier,  347. 
of  contract,  must  be  of  same  in  entirety,  349,  364. 
of  infant's  partner's  contract,  18. 
of  payment  when  money  received  through  mistake  of   fact  has  been 

returned,  375. 
of  sealed  instrument  by  municipal  corporation  by  parol,  83. 
of  tort,  337. 
of  unauthorized  negotiable  paper  signed  in  principal's  name  per  that  of 

agent,  378. 
parol,  of  acts  of  agent,  in  general,  82. 
parol,  of  filling  blanks  in  deed,  76. 
parol,  of  sealed  instrument,  342,  343. 
proper  parties  to  ratify  contract,  325. 
relation  back,  334,  339. 

requisites,  340,  342,  343,  345,  347,  349,  354,  358,  359,  361,  364. 
validity  as  not  dependent  upon  communication,  381. 
what  acts  can  be  ratified,  323,  324,  326,  328,  332,  336,  337. 
what  constitutes,  in  general,  335. 
what  constitutes,  of  contract  tainted  with  fraud,  323. 
when  covenants  are  mutual,  376. 

REAL  ESTATE  AGENTS, 

See  Brokers. 

RECEIVER, 

agent  within  Kansas  statute  on  embezzlement,  1. 

REIMBURSEMENT, 

duty  of  principal  to  reimburse  agent,  558,  561. 

RELATION  BACK, 

of  ratification,  334,  339. 

REMEDIES, 

against  innocent  principal  for  fraud  and  deceit  of  agent,  242. 
against  one  who  fraudulently  acts  as  agent  to  another,  396. 
manner  of  enforcing  personal  liability  of  agent,  406. 
of  agent  on  implied  promise  of  indemnity,  559. 

52 — Reinhard  Cases. 


8l8  INDEX. 

{References  are  to  PagesJ\ 

'RRU.EDIY.S— Continued. 

of  employe  under  breached  contract  of  empIojTnent,  538. 
to  enforce  personal  liability  of  agent,  412. 
trover  against  principal  for  larceny  by  agent,  260. 
trover  by  principal  against  agent,  677,  686. 

REPUDIATION, 

necessity  of  prompt,  355. 

of  contract,  must  be  of  same  in  entirety,  349,  364. 

one  ground  as  efifectual  as  many,  356. 

RES  GEST^, 

declarations  of  agent  to  bind  principal  must  be  part  of,  190. 

RESPONDEAT  SUPERIOR, 

application  of  doctrine,  265,  280. 
basis  of  rule  of,  265. 

doctrine  of  as  applicable  when  brakeman  is  injured  through  negligence 
of  his  engineer,  580. 

REVOCATION  OF  AUTHORITY, 
assumption  of  risk,  751. 
compensation  of  agent,  746. 
effect  as  to  third  persons,  757. 
evidence,  750. 

evidence  as  to  notice,  759. 
form  and  requisites,  749. 
implied  from  circumstances,  749. 

imposing  liability  upon  principal  for  damages  to  agent,  755. 
liability  of  principal  for  act  of  agent  following,  750. 
mutuality  of  contract  as  essential  to  non-revocability,  748. 
notice,  747,  750,  757. 
operation  and  effect,  751. 
parol,  749. 

power  to  revoke  authority  to  sell  land,  746. 
ratification  of  act  of  agent  following,  752. 
right  to  revoke,  744,  771. 
sale  by  principal  as,  to  sell,  748. 

to  sell,  right  to  revoke  as  affected  by  "exclusive"  or  "irrevocable"  grant 
of  power,  748. 

RIGHTS  OF  THIRD  PERSONS, 

accepting  unauthorized  negotiable  paper,  394. 

as  to  principal  in  undiscovered  agency,  213. 

parties  to  unauthorized  acts  of  agent,  234. 

to  rely  upon  apparent  authority  of  agent,  200. 
,  upon  acceptance  executed  by  agent,  116. 


INDEX.  819 

[References  are  to  Pages.] 


SAFE  PREMISES  AND  SUITABLE  APPLIANCES, 

duty  of  master  to  provide,  633,  639,  644,  645,  650,  653,  665,  669, 

SALES, 

agent  of  seller  as  purchaser  or  agent  of  purchaser,  752. 

authority  of  factor  to  make,  on  credit,  224. 

concurrent  liability  of  agent  and  undisclosed  principal  on  purchases  by 

former,  490. 
election  between  enforcing  liability  of  agent  and  that  of  undisclosed 

principal  for  purchases,  490. 
implied  authority  of  broker  to  make,  229. 
liability  of  agent  purchasing  as  ostensible  principal,  511. 
liability  of  innocent  seller  for  deceit  of  agent,  241. 
liability  of  undisclosed  buyer,  469. 
liability  of  undisclosed  principal  for  unauthorized  purchases  of  agent, 

474. 
personal  liability  of  broker  for  purchase  money,  522. 
personal  liability  of  commission  merchant  for  breach  of  warranty  of 

goods  sold,  513. 
right  of  undisclosed  principal  in  written  contract,  450. 
seller  as  agent  of  buyer  after  latter's  default,  100. 

SCOPE  OF  AUTHORITY, 

See  Authority. 
acting  without,  as  affecting  liability  of  principal  for  tort  of  agent,  269, 

275,  279. 
acts  of  special  agent  to  bind  principal  must  be  within,  233. 
apparent,  as  real,  477. 
effect  of  exceeding,  in  general,  108,  211. 
effect  of  special  agent's  exceeding,  215,  482. 
false  representations  to  bind  principal  must  be  within  apparent  scope 

of  authority,  246. 
homicide  as  within,  of  agent,  284. 
includes  what,  247. 
of  general  agent,  108,  220. 
under  general  employment  in  specific  capacity,  233. 

SEAL, 

effect  on  right  of  undisclosed  principal  to  sue  in  his  own  name,  450. 

necessity  on  authority  of  one  partner  to  bind  another  by  sealed  instru- 
ment, 82. 

necessity  on  authority  to  bind  municipal  corporation  by  sealed  instru- 
ment, 83. 

necessity  on  authority  to  execute  sealed  instrument,  82. 


820  INDEX. 

[References  are  to  Pages.^ 

SEAL — Continued. 

necessity  on  ratification  of  sealed  instruments,  342,  343. 
on  instrument  valid  without,  as  affecting  rights  of  undisclosed  prin- 
cipal, 438. 
use  of  private,  in  making  contract  for  corporation,  84. 

SEALED  INSTRUMENTS, 

authority  of  one  partner  to  bind  another  by,  82. 

authority  to  bind  municipal  corporation  by,  83. 

authority  to  execute,  75,  81,  85,  392. 

employment  of  servant  by  wife  under,  84. 

execution  of  authority  as  to,  124. 

form  and  requisites  of  revocation  of  authority  under  seal,  749. 

liability  of  undisclosed  principal  on  sealed  contract,  462,  464. 

manner  of  executing  deed  so  as  to  bind  principal,  440. 

parol  authority  to  execute,  83,  87. 

parol  authority  to  execute  deed,  76. 

ratification  to  be  under  seal,  342,  343. 

right  of  undisclosed  principal  to  bring  action  upon,  438,  441,  450. 

right  to  construe  sealed,  as  simple  contract,  462. 

signing  by  agent,  125,  127. 

SERVICE, 

difference  between  agency  and,  7. 

SET-OFF  AND  COUNTERCLAIM, 

against  factor  as  available  against  undisclosed  principal,  455,  457. 
against  undisclosed  principal  as  available  in  suit  by  agent,  456. 

SIGNATURE, 

best  mode  of  agent's  signing  or  indorsing  note  to  bind  principal,  140. 

burden  of  proving  effect,  when  words  descriptio  personarum  are  used, 
162. 

construction,  on  mortgage  and  mortgage  note,  132. 

effect  of  words  descriptio  personarum  accompanying  agent's  own  name, 
124,  127,  129,  130,  132,  136,  139,  148,  149,  157,  158,  162,  440. 

negotiable  paper  signed  in  agent's  name,  138. 

of  attorney  in  fact  to  deed,  132. 

parol  evidence  as  to  intent  in  signing  negotiable  paper,  142,  149. 

parol  evidence  as  to  intent  in  signing  simple  contract,  155,  160. 

relevancy  of  evidence  as  to  intent  in  signing  negotiable  paper,  as  discre- 
tionary with  court,  144. 

to  sealed  instrument,  125,  127,  132. 

to  simple  contract,  137,  157,  158. 

SIMPLE  CONTRACT, 

See  Contract. 


SLAVES, 

as  agents,  40,  41. 

SOLICITORS, 


INDEX.  821 

[References  are  to  Pages.] 

See  Attorneys  at  Law. 


SPECIAL  AGENT, 

acts  as  binding  upon  principal,  13,  233. 

defined,  11,  108,  199. 

distinguishable  from  general,  13,  482. 

duty  to  ascertain  authority,  214,  233,  482. 

eflfect  of  exceeding  authority,  215. 

effect  of  private  instructions,  215. 

implied  authority,  188. 

liability  of  undisclosed  principal  on  unauthorized  contract,  477. 

same  person  may  be,  for  same  principal  in  several  different  matters,  6. 

to  sell  land,  modes  and  means  of  executing  authority,  184. 

SPECIALTY, 

See  Sealed  Instruments. 

SPECIFIC  PERFORMANCE, 

right  of  undisclosed  principal,  471, 

STATES, 

ratification  of  invalid  contract  of  agent,  326. 

STATUTE  OF  FRAUDS, 

application  to  creation  of  agency,  56,  85. 

as  affecting  ratification  of  sealed  instruments,  342,  343. 

as  affecting  right  to  establish  fact  that  undisclosed  principal  is  entitled 

to  benefits  by  parol,  473. 
as  requiring  principal  to  be  disclosed  in  contract,  449. 

STATUTES, 

3  and  4  Anne,  ch.  9,  §  1,  as  affecting  right  of  undisclosed  principal  to 

sue  on  promissory  note,  444. 
effect  of  statutory  provisions  upon  acts  of  agents,  53. 
ratification  by  statute  of  contract  prohibited  by,  326. 
receiver  as  agent  under  Kansas  statute  on  embezzlement,  1. 

SUB-AGENT, 

acceptance  of  negotiable  paper,  173. 

acts  as  binding  upon  principal,  172. 

authority  of  agents  of  a  town  to  prosecute  suit  to  appoint,  177. 

authority  to  employ,  in  general,  172,  176. 

authority  to  indorse  negotiable  paper,  185. 


822  INDEX. 

[References  are  t^o  Pages.] 

SUB-AGENT— Continued. 

estoppel  of  principal  by  indorsement,  186. 

execution  of  agency,  171. 

implied  right  of  agent  to  fix  compensation  of  sub-agent,  190. 

what  constitutes  delegation  of  authority  to  indorse  negotiable  paper,  136. 

SUB-CONTRACTOR, 

liability  of  principal  for  tort,  285. 

liability  of  principal  for  tort  of  servant  of,  285. 

SUBSCRIPTION, 

payee  assuming  to  act  as  agent  for  payer,  56. 

SUITABLE  APPLIANCES  AND  SAFE  PREMISES. 

duty  of  master  to  provide,  633,  639,  645,  650,  653,  665,  669. 

SURETIES, 

of  agent  as  not  bound  for  default  after  expiration  of  agency,  739. 
wife  for  husband,  80. 

SUSPENSION  OF  AUTHORITY, 
when  suspended,  766. 


TERMINATION  OF  AGENCY, 
assumption  of  risk,  751. 

by  death  of  principal,  550,  760,  761,  764,  767,  771. 
by  execution  of  power,  776. 
by  insanity  of  principal,  768. 
by  operation  of  law,  760,  761,  764,  766. 
by  parol,  749. 

by  revocation  of  authority,  744,  746,  749,  750,  751,  755,  757. 
by  senseless  condition  of  principal  in  extremis,  766. 
by  terms  of  agreement,  739,  741. 
compensation  of  agent,  746. 
construction  of  contract,  739,  741. 
effect  as  to  third  persons,  757. 
evidence,  750. 
evidence  as  to  notice,  759. 
form  and  requisites,  749. 
for  single  woman  by  marriage,  767. 
implied  from  circumstances,  749. 
irrevocable  agency  by  death  of  principal,  770. 
irrevocable  agency,  in  general,  770,  775,  776. 
knowledge  of  agent,  761. 


INDEX.  823 

[References  are  to  Pages.] 

TERMINATION  OF  AGENCY— Continued. 

liability  of  agent  to  third  persons  for  act  done  following,  763,  765. 

liability  of  principal  for  act  of  agent  following,  750,  757,  760,  761,  764. 

liability  of  principal  to  agent  for  damages,  755. 

meaning  of  "coupled  with  an  interest,"  748,  772. 

mutuality  of  contract  as  affecting  right  to  terminate,  748. 

notice,  747,  750,  757. 

nude  promises,  747. 

operation  and  effect,  in  general,  751. 

ratification  of  act  of  agent  following,  752. 

revival  of  terminated  prior  agency,  743. 

right  of  principal  to  terminate  agency  to  sell  land,  746. 

right  of  principal  to  terminate,  in  general,  744,  771. 

sale  by  principal  as,  to  sell,  748. 

sale  of  property  as  evidence,  750. 

sureties  of  agent  as  not  bound  for  default  after  expiration  of  agency, 

739. 
to  sell,  right  to  terminate  as  affected  by  "exclusive"  or  "irrevocable" 

grant  of  power,  748. 
validity  of  payment  to  agent  after,  761. 
when  irrevocable,  771,  775. 
wife  for  husband,  766. 

TITLE, 

notice  to  agent  as  notice  to  principal,  296. 

TORTS, 

agent  as  guilty  of  conversion,  677,  686. 

of  agent,  adoption  by  principal,  337. 

of  agent,  liability  of  principal,  in  general,  235,  237,  241,  243,  248,  255, 

258,  260,  262,  263,  265,  269,  275,  279,  284. 
of  agent,  ratification  by  principal,  337. 
liability   of   principal   to   third  persons    following  judgment   by   latter 

against  agent  for  fraud,  487. 

TOWNS  AND  TOWNSHIPS, 

acts  of  people  of  township  not  amounting  to  ratification,  325. 
authority  of  agents  of  town  appointed  to  prosecute  suit,  in  general,  177. 
delegation  of  authority  by  agents  of  town  to  prosecute  suit,  177. 
ratification  by  board  of  highway  commissioners  of  contract  of  one  of 
its  members,  324. 

TRESPASS, 

of  agent  as  that  of  principal,  258. 


824  INDEX. 

[References  are  to  Pages.] 

TROVER, 

agency  as  defense  to  action  of,  415. 

as  maintainable  by  principal  against  agent,  677,  686. 

TRUSTS  AND  TRUSTEES, 

liability  of  trustee  on  covenants  in  excess  of  authority,  130. 
liability  of  trustee  purchasing  in  his  own  name  while  in  performance 
of  his  office,  694. 

U 
ULTRA  VIRES, 

acts  of  agent  as  binding  upon  principal,  124,  236,  237,  241. 
contract,  effect  of  ratification,  356. 

UNIVERSAL  AGENCY, 
creation,  112. 
never  inferred  from  general  expressions,  13,  112. 

UNIVERSAL  AGENT, 

clearly  distinguishable  from  general,  12. 
defined,  11. 

USAGE, 

See  Customs  and  Usages. 


V 
VENDOR  AND  PURCHASER, 

authority  to  make  covenants  in  sale  of  land,  183. 

liability  of  undisclosed  principal  to  vendor  in  sealed  executory  agree- 
ment to  convey,  463. 
notice  to  agent  of  vendor  as  to  title  as  notice  to  vendor,  296. 
right  of  undisclosed  vendee  to  sue  for  specific  performance,  471. 
sale  by  one  agent  as  precluding  another  from  exercising  power,  751. 
sale  of  property  as  evidence  of  revocation  of  authority,  750. 

VICE-PRINCIPALS  AND  SUPERIOR  SERVANTS, 
applicability  of  doctrine,  615,  620,  624,  630. 
as  fellow-servant,  630. 
"captain"  of  dredge  and  deck  hand,  624. 
car  repair  foreman  and  car  repairer,  615. 
conductor  and  others  employed  on  train,  627. 
express  agent  and  handler  of  goods,  630. 
foreman,  628. 

liability  of  master  for  injuries  to  servant  caused  by  negligence  of,  615, 
620,  624,  630. 


INDEX.  825 

[References  are  to  Pages."] 

VICE-PRINCIPALS  AND  SUPERIOR  SERVANTS— Con^mw^rf. 

mining  or  driving  boss  and  those  working  with  or  under  him,  628. 
superintendent  of  construction  train  and  common  laborer  on  construc- 
tion work,  620. 
who  are,  in  general,  615,  620,  624,  628,  630. 


W 
WAIVER, 

by  servant  of  defects  in  machinery,  as  question  for  jury,  667,  671. 
of  right  to  disaffirm  invalid  contract,  358. 

WAR, 

appointment  of  agent  by  resident  of  territory  in  rebellion,  40. 

appointment  of  agent  in  territory  of  enemy,  37. 

effect  upon  agencies,  40. 

principal  and  agent  residing  in  territory  of  opposing  belligerents,  37. 

WARRANTY, 

authority  to  make,  how  arising,  245. 

of  authority  as  broken  by  infancy  of  principal,  414. 

"warranty"  and  "representation"  as  not  synonymous,  245. 

WIFE, 

agent  for  husband  in  executing  accommodation  paper,  109. 

agent  for  husband  in  purchase  of  necessaries,  45. 

authority  to  employ  servant  by  sealed  instrument,  84. 

business  of,  as  that  of  husband,  45. 

business  of  husband's  liability  for  contracts  made  in,  45. 

capital  advanced  to  husband,  effect,  26. 

engaging  in  trade,  26. 

estoppel  of  husband  to  deny  agency,  109. 

fraud  of  husband  as  that  of,  313. 

husband  as  agent,  26. 

husband  as  attorney  in  fact,  75. 

in  business,  as  agent  of  husband,  45. 

liability  of  capital  advanced  by,  for  husband's  trade  debts,  26. 

presumption  as  to  agency  for  husband,  44. 

surety  for  husband,  80. 

termination  of  authority  as  general  agent  of  husband,  766. 

undisclosed  member  of  partnership,  26. 

WITNESSES, 

See  Authority. 


826  INDEX. 

[References  are  to  Pages.] 

WORDS, 

"agent"  and  "servant"  neither  synonymous  nor  interchangeable,  7. 

construction  in  simple  contract  as  to  binding  of  principal,  158. 

construction,  used  in  creating  agency,  112. 

construction,  used  in  executing  authority,  140. 

construction,  used  in  power  of  attorney  to  execute  bills  and  notes,  123. 

descriptio  personarum,  effect,  124,  127,  129,  130,  132,  136,  139,  148,  149, 
157,  158,  162,  440. 

fee  of  attorneys  at  law  as  "current  wages,"  526. 

found  in  power  of  attorney,  construction,  in  general,  119. 

meaning  of  "coupled  with  an  interest,"  748,  772. 

"ordinary  and  reasonable  care  and  diligence"  as  having  an  exactly  de- 
fined meaning  in  law,  639. 

sufficient  to  confer  authority  to  make  covenants  in  sale  of  land,  183. 

"we,"  in  promissory  note  signed  in  agent's  own  name,  151. 

WRITING, 

authority  of  agent  to  bind  principal  by  instrument  in,  87. 
necessity  in  conferring  authority  to  fill  blanks  in  deed,  76. 
unnecessary  to  confer  authority  upon  agent,  43. 

WRONG-DOERS, 

as  between  principal  and  agent  though  act  of  former  may  be  mala  fide 
that  of  latter  may  be  bona  fide,  560. 

WRONGFUL  ACT, 

See  Torts, 
agent  as  guilty  of  conversion,  677,  686. 
liability  of  master  for  wrongful  act  of  servant,  279. 
liability   of   principal   to   third   persons    following   judgment  by   latter 

against  agent  for  fraud,  487. 
of  agent,  liability  of  principal,  235,  237,  241,  243,  248,  260,  262.  269, 

275,  279,  284. 
of  principal  as  that  of  agent,  415. 
ratification,  in  general,  337. 
ratification  of  invalid  contract  by  bringing  action  of  assumpsit,  349. 


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